In this diversity action, after a contested trial upon the merits, the jury on June 1 returned a verdict of $8,000 for the plaintiff. Judgment was entered forthwith by the Clerk.
At the hearing on plaintiff’s motion on July 6 defendant’s counsel requested denial of the motion under Rule 60(b) (1, 6).
The provision of Rule 59(b) requiring that a motion for a new trial be served not later than ten days after entry of the judgment is mandatory. Cf. Greenwood v. Greenwood, 3 Cir., 1955,
Here there was no stipulation or agreement of counsel for an extension of time. Even if there was it does not excuse non-compliance.
The authority, if any, over the protest of plaintiff’s counsel, to entertain defendant’s motion for a new trial must be found within the four comers of Rule 60(b) (1,6). See and cf. Federal Deposit Insurance Corporation v. Alker, 3 Cir.,
“Opinion varies sharply concerning the extent to which relief should be granted from a judgment. This divergence necessarily results from a clash of the two principles that litigation must terminate within a reasonable time, but that justice must be accorded the parties.” 6 Moore, op. cit. supra, p. 4013.
“It is to be remembered * * * that the same Rule governed both default judgments and those in non-default cases, a field in which a good deal of discretion has always been exercised * * Vol. 10, Cyc. of Federal Procedure, Ch. 37, § 37.01, p. 292.
“Where timely relief is sought from a default judgment and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the judgment so that cases may be decided on their merits.” 7 Moore, op. cit. supra, § 60.19, p. 224; see Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951,
“Piercing the veneer of phrases, the decisions disclose that federal courts have always exercised broad discretion to right obvious injustices and to give a hearing to any apparently bona fide claim or defense the failure to make or adequately present which, before judgment, was satisfactorily excused.”
Since there are no allegations in the motion or petition seeking relief under Rule 60(b), see and cf. note 5, supra, we can only assume that defendant’s counsel rely upon mistake, inadvertence, or excusable neglect.
Vol. 10, Cyc. of Federal Procedure, Ch.. 37, § 37.01, p. 292, states, “No one has ever fathomed the exact significance of the phrasing. ‘Mistake’ is rarely an excuse in the law and is generally frowned upon; ‘surprise’ is scarcely ground for a continuance, unless well justified; ‘inadvertence’ means unpreparedness, which is certainly no excuse in earlier-stages of a lawsuit; and ‘excusable neglect’ is a self-nullifying term, because--that which is adequately excusable is not neglect.”
Mr. Justice Frankfurter in Klapprott. v. United States, supra, 335 U.S. at page-630, 69 S.Ct. at pages 397, 398, suggests-that “neglect” in the context carries the idea of negligence and not merely non-action.
Ordinarily to obtain relief one must be-free from negligence. Simonds v. Norwich Union Indemnity Co., 8 Cir., 1934,
Mr. Justice Minton in Ackermann v. United States, supra,
See 3 Blackstone’s Commentaries, p. :392, “A sufficient ground must * * * be laid before the court, to satisfy them that it is necessary to justice that the •cause should be further considered.” While it is elemental that courts favor "the trial of causes of action upon their merits, their discretion is not an arbitrary one to be capriciously exercised but .a sound legal discretion guided by accepted legal principles. Assmann v. Fleming, 8 Cir., 1947,
In view of the foregoing, we were in error in not granting plaintiff’s motion to strike the motion for a new trial.
However, upon examining the reasons assigned in support of defendant’s motion for a new trial, reading the testimony and considering the briefs and arguments of counsel, we find no reason for disturbing the verdict of the jury. Ordinarily the motion should therefore be denied.
Plaintiff, a New York corporation, manufactures food processing machinery at Buffalo, New York. Defendant, a Pennsylvania corporation, manufactures gray iron castings at Lattimer Mines, Pennsylvania, in this district. There was substantial, competent, credible evidence from which the jury could have found and, in support of the verdict we may assume, did find that between January 31, 1947 and November 2,1948, upon periodic orders placed by plaintiff, defendant manufactured and shipped to plaintiff various castings amounting to $45,229.-06.
Up to August 1, 1947, all rejected castings were returned to defendant collect. Finding the cost of transportation prohibitive defendant asked and plaintiff agreed thereafter to sell rejected castings locally as scrap at the then current price of $35 per gross ton, crediting defendant for the amount received.
September 5, 1947, having had very poor luck with defendant’s castings, plaintiff wrote defendant that it had rejected a majority of them. September 25, 1947, “* * * kindly * * * advise why the iron should be running this way as we expected * * * after your recent visit * * * you would be able to give us a finer grain iron than previously.”
As rejections continued, in fact increased,
April 19, 1948, defendant commented on an experimental S80 casting, advising that it would be several weeks before they could get into production on both cylinders, promising further improvements in its iron. April 21, 1948, plaintiff wrote “wondering as to the cause of the delay * * * we believed that as soon as you overcame the trouble of the poor metal you were obtaining * * * you would be able to swing into volume production at once.” May 5, 1948, plaintiff by phone rejected an S401, another on May 12, May 18, June 7, 1948, suggesting perhaps the molder working on the S401 was responsible.
June 11, 1948, defendant shipped an S401 and S80 for the first time identifying them by special mark, asking for an early machining and report; “ * * * changed * * * content of our charge and * * * method of casting * * * believe will produce satisfactory unit •» * * Appreciate your returning one of the rejected S401 at our expense for our study * * * trust improvement made in our castings will meet your requirements * * * ” June 14, two more S401 returned. After June 22, 1948, all rejected castings were returned to defendant collect. June 25 defendant shipped another S80, S401 specially marked asking for an early report; July 2 rejected four S402, recorded by defendant July 15; July 13, an S401; August 4, an S80; August 23, an S401, “advise if * * * return or scrap it here”; August 27, “sorry * * * please return”; September 1, another S401, “kindly advise disposition”. September 2, plaintiff in rejecting another S401 wrote, “The trouble is the same as on former castings * * * wide open grain * * * We do not seem to be getting anywhere with the problem of satisfactory castings on * * * S401. If anything the situation * * * is getting worse as the defects are greater * * * We believe a visit * * * by your Mr. Ben-ner would be in order, to help overcome this trouble * * * we could show him a comparison * * * between * * * cylinders * * * satisfactory and those which are not.” September 20, 1948, defendant by telegram asked return of all rejected castings. September 27, 1948, rejected S80, kindly advise disposition; October 4, 1948, defendant inquired type of casting on hand, plaintiff replied only one S80. Oc
October 11,1948, Mr. Coll and Mr. Ben-ner, studying castings, conferred with local foundry men as to casting difficulties —S401 promised had not been cast because defendant found no way of alleviating the difficulties. Defendant could see no use in making another which would undoubtedly result in another rejection. However, on October 12, 1948, defendant stated that an S401 would be poured and shipped, “Believe found method that will improve the grain”. November 2, 1948, plaintiff found loose grain and spongy spot but used it. Same day plaintiff called inquiring about lack of castings, requesting return of one of S401 patterns.
November 16, 1948, defendant informed plaintiff they were giving up on S401 casting as they could not make a successful casting on that item. Plaintiff’s Ex. 18x. February 1, 1949, plaintiff rejected one S405, one S406, sending a debit memo for $86.22. Finally on May 10, plaintiff rejected one S406, sending a debit memo dated May 4 for $21.22.
As we indicated above, on September 5, 1947, the plaintiff advised defendant, “The majority of castings we have are rejected.” Defendant on September 11 asked for a schedule of rejections, replacements and scrapped items. Plaintiff pressed for additional castings of improved quality. Apart from complaints, the next notice of rejection was a phone call on January 20, 1948, as to sixteen S402s. Meanwhile, unknown to plaintiff’s executives the chief of their auditing department was seriously ill and neglected to forward debit memoranda and notice of rejections to defendant. Upon his visit to plaintiff’s plant on March 10 plaintiff gave Mr. Benner a list of 82 castings rejected between July 8, 1947 and January 29,1948, amounting to $4,969.43, less scrap $707.85,
In a letter dated April 19,1948, defendant expressed surprise and shock at the number and value of rejections, claiming that it had prior notice of only 31 or 32 rejections valued at $2,130.68; that the dates and items did not correspond with defendant’s file. Actually defendant overlooked plaintiff’s letter of September 5, 1947, rejecting an S401, S406, “very poor luck with S402 * * * recently * * ”, and see supra; the ambiguity in plaintiff’s letter of July 17, 1947, as to an additional S80; the inquiry of August 10, 1947, as to an S401; the doubt expressed in the letter of September 25, 1947, as to the usability of S401. See and cf. returned and scrapped castings, plaintiff’s Ex. 2, 3 and 6. April 21, 1948, plaintiff’s accountant was instructed to forward invoices at once and to avoid delay in giving notice of rejections. Plaintiff’s practice was to take advantage of defendant’s cash discount and to make payment promptly of all invoices. If there was a rejection plaintiff would debit defendant. See N.T. pp. 11, 33, 106.
From the foregoing it appears plaintiff rejected items totalling 134,892 lbs. for which it had paid defendant $15,670.22 (N.T. 46, 47). After deductions for replacements $678.98, scrap $2,021.62,10% deductions on invoices $1,178.10, payment withheld on invoices $1,682.90, there was a balance of $10,108.62 for which plaintiff brought this action.
Defendant’s position at the trial was, granting that plaintiff should have a reasonable opportunity to inspect, machine, test, approve or reject and to notify defendant if there was a rejection, the failure to keep defendant advised as to replacements, rejections, and scrapped items between September 1947 and March 1948 prevented defendant from taking corrective measures in its casting procedure to avoid having rejections reach such proportions.
Defendant argued that it was denied the right to have notice of rejections and of an opportunity to examine the rejects to see if the casting was actually manufactured by defendant and if the rejections were warranted and made in good faith.
During the period in question the only source of supply for S401-2-3-5-6 was defendant’s foundry. Some S80s were purchased from another foundry but they were readily distinguishable from defendant’s product. Plaintiff's foreman testified that every effort was made to avoid rejections; that plaintiff was in need of the castings and that he personally made all of the rejections in good faith and only after every effort to make them usable had failed. The decision to stop returning rejects as of August 1947 and sell them as scrap was that of defendant. At no time was any request for inspection denied. On four oc
Defendant, although failing to take several items into consideration, see supra, asserted that it did not have reasonable notification as to items amounting to $2,130.90 (see defendant’s Ex. 5, memo with the March 10, 1948, statement).
After March 10, 1948, defendant con-cededly had reasonable notice of most of the rejected items and when defendant so desired they were promptly returned to defendant’s plant.
After shipments terminated, defendant on April 14, 1949, wrote, “It is our feeling that amounts withheld from our invoice should now be released and paid to us * * *.” Defendant’s counterclaim sets up a claim for the withheld items, i. e., the unpaid invoices and the 10% deductions — $2,862.45.
Defendant’s position was that although it had had notices of rejections after March 10, 1948 — in fact a great many items had been returned — because of the confusion created by the unreported items as of March 10, 1948, conditions were so muddled that defendant was unable thereafter to determine on what items the plaintiff was entitled to credit and therefore gave none at all.
Confronted with the problem outlined, the jury returned a verdict for the plaintiff in the sum of $8,000, apparently allowing defendant credit for the value of the unreported items as of March 10, 1948.
There was an implied warranty of fitness for the purpose intended and that the castings would be the same as the sample. Pa.Uniform Sales Act of 1915, §§ 15, 16, 69 P.S. §§ 124, 125; Uniform Commercial Code, 12A P.S. §§ 2-313(1) (c), 2-315; Griffin v. Metal Product Co., 1919,
Where recovery is allowed for breach of contract the damages awarded must fully compensate the injured party. Siegel v. Struble Bros., Inc., 1942,
The issues were submitted to the jury with appropriate instructions. We must therefore reject the claim that the verdict and the amount thereof were against the law and the evidence. As to the conduct of the trial and the ruling upon the evidence, a reading of the reports of the proceedings as the trial went on, placing each item in its proper context,
Absent any protest during the trial or exceptions after the charge, defense counsel, after reading the transcript of the testimony, in his additional reasons and in the argument criticizes the language used by the court in its rulings and in its charge. “A trial is not an exercise in semantics.” Giffin v. Ensign, 3 Cir.,
“It is elementary that a federal judge has the right to comment on the evidence [United States v. Chiarella, 2 Cir., 1950,
Cross examination is a right but its proper bound is within the discretion of the trial judge. United States v. 3.554 Acres of Land, etc., 3 Cir., 1945,
In view of the foregoing, the court has no alternative but to grant plaintiff’s motion to strike defendant’s motion for a new trial.
Notes
. Absent any direction otherwise by the court. See Fed.R.Civ.Proc. 58, 79(a), 28 U.S.C.; Greenwood v. Greenwood, 3 Cir.,
. That the verdict was against tbe law and the evidence; no proper support for amount thereof; error in ruling on evidence and in the conduct of the trial
. The motion read 59(d).
. “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment * * * for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect * * * (6) any other reason justifying relief from the operation of the judgment.”
. See and cf. Rule 7 (b), “ ‘An application * * * shall state with particularity the grounds therefor * * ” Raughley v. Pennsylvania R. Co., 3 Cir., 1956,
. Do.59(d), where the court acts on its own initiative. Greenwood v. Greenwood, 3 Cir.,
. And we add “or serve”.
. See discussion of 1946 Amendment, Statements of Advisory Committee and authorities cited, and see United States v. Young, 7 Cir., 1955,
. Conceding that the liberal Rules of Civil Procedure must not be transformed by judicial interpretation into a technical trap for the unwary and that review should not be denied on mere technicalities where this can be avoided, see Witt v. Merrill, 4 Cir., 1953,
. Cf. Whayne v. Glenn, D.C.W.D.Ky.,
. (Italics supplied). As to the procedure, see Id. and Klapprott v. United States, 1949,
. “The district court may not consider as reasons justifying relief under clause (6) mistake, inadvertence, surprise, excusable neglect, newly discovered evidence or fraud, the reasons justifying relief under clauses (1), (2) and (3) of Rule 60(b).” Id. citing United States v. Karahalias, 2 Cir., 1953,
. E. g., cases where relief from judgment was granted. See 7 Moore, op. cit. supra, § 60.22(2), p. 231; In re Gsand, 3 Cir., 1946,
. See 6 Moore, op. cit. supra, § 59.09(3), p. 3852, “ * * * the court may treat the untimely motion as one for relief' under Rule 60 * * * if the facts alleged in the motion warrant relief under the latter rule.” Id., § 59.04(7), p. 3719, note 13, but see and cf. United States v. Wissahickon Tool Works, Inc., 2 Cir., 1952,
. First shipment, S401 small cylinder, January 31, 1947; S402 safety ring, S403 stuffer cover, S405 piston top, S406 piston bottom, April 30, 1947; S80 large cylinder, May 29, 1947.
. Through Ellis B. Dorl, who originally in soliciting the business stated that he acted as a representative on behalf of defendant; June 4, 1947, Dorl promised a finer grain; a visit to defendant’s plant by P. J. Coll, defendant’s manager, August 1947; by G. M. Benner, defendant’s work manager and chief engineer in March 1948, and in correspondence between plaintiff and defendant. Plaintiff’s
. As to S401, S80; plaintiff supplied patterns for the others.
. After some difficulty as to S80.
. Very open grain. Plaintiff suggested possibly due to defect in defendant’s procedure; defendant’s manager, possibly due to a new mixture used at defendant’s plant. Plaintiff’s Ex. 18a, defendant’s Ex. 5.
. July 2, 1947, on sample S80. Defendant’s Ex. 5. See letter July 10, 1947, plaintiff’s Ex. 18e; July 17, 1947, defendant’s Ex. 5. July 3, 1947, four S405s, “welding”, plaintiff’s Ex. 18a, e. Defendant thought “hard spots” occasioned during casting. August 1, 1947, four out of six S403s, plaintiff’s Ex. 18f. September 5, 1947, S406, plaintiff’s Ex. 18k, “Poor luck with S403s recently”. .September 25, 1947, plaintiff’s Ex. 18L, two of four S402s.
. Plaintiff’s Ex. 18h, g, j, i.
. Plaintiff’s Ex. 18c. See note 16 supra.
. Meanwhile an S80 was rejected and scrapped before learning of Coil’s visit. Plaintiff’s Ex. 18g and j.
. An attempt to weld an S401 failed; improper fusion apparent especially under reflected light. See letter August 18, 1947, plaintiff’s Ex. 18i; letter September 5, 1947, necessary to reject S401, S408, “Very poor luck with S402 * * * recently. The majority of castings we have are rejected,” plaintiff’s Ex. 18k; September 25, 1947, rejected two of four S402s, complaining as to S401, plaintiff’s Ex. 18L.
. See defendant’s Ex. 5, July 29, 1947, August 1, 1947.
. Plaintiff’s Ex. 18L, defendant’s Ex. 5. See complaint October 17,1947, as to S80. Cf. letter October 21, December 31, 1947, S401, “Take steps to correct it immediately.”
. Plaintiff phoned January 20, 1948, sixteen S402s rejected.
. Defendant’s Ex. 5, April 19, 1948, June 25, 1948, July 15, 1948.
. Plaintiff’s Ex. 18m.
. April 3, 1948, April 7, 1948, April 10, 1948, April 21, 1948.
. 44,044 lbs. @ $35 per gross ton, $707.-85.
. Except three invoices on which payment was withheld,
November 17, 1948 — $1172.25 221.40
December 1, 1948 — 289.25
$1682.90
. 10% deductions were thereafter made as follows:
May 12, 1948 — $ 365.37
May 19, 1948 — 41.80
May 21, 1948 — 139.47
June 7, 1948 — 93.06
June 21, 1948 — 152.46
August 10, 1948 — 299.27
September 7, 1948 — 83.67
Total
$1178.10
. Plaintiff’s Ex. 12 —
Rejections — $7743.09 Less Scrap, 65,398 lbs.
@ $45 per gross ton — 1313.77
$6429.32
Less Replacements ■— 678.98
$5750.34
. February 14, 1947, defendant agreed that notice of rejections could not be given within 30 days. April 19, 1948, defendant contended that its invoices required claims to be made within 10 days. At the trial defendant agreed that reasonable notice was sufficient.
. Debit Memo, $594.
. Debit Memo, $760.69.
. Debit Memo, $1,496.10.
. Debit Memo, $85.69.
. Debit Memo, $21.22.
. Cf. supra, total $2,861.
. The difference in amounts apparently arises from the use of different weights and price per lb. of the several items.
. Cf. United States v. Kafes, 3 Cir., 1954,
. As to the additional reasons: (1) At side bar, N.T. 109, 110; in chambers, 187 at 190; developed at 110-111; see ISO-182, 214-215, 244-245. (2) “Settlement”. N.T. 30-33. Agreed to pay full amount. Rabinowitz v. Silverman, 1909,
(4) Cf. N.T. 92-93, later withdrawn; cf. 104, 207.
(7) “Represented”. N.T. 4. No objection or motion to strike. See Bascom v. Danville Stove & Mfg. Co., 1897,
(8) As to offers on cross examination, Buck v. Com., 1885,
(3) See particularly N.T. 115-117, and see 63, 78-80, 112, 114 (cf. 103), 155, 204, 223, 264r-272. (6) Defendant’s suggestion. Examples of defense counsel’s undue haste, see N.T. 93, 114, 161, 191, 192, 215, 217, 222, 254, 262, 263, 281. Reference at 281 to both counsel; cf. 161, 278-279, 281. (10) N.T. 100, 103, 114, 192.
(5) Ex. 18d, e, supra, and cf. j. i. N.T. 93-99, 294.
(9) N.T. 108-114. (11 a, b, c, d) See whole record. There were eight women on the jury. (11 e) Cf. N.T. 272, 100, 161, 254-255; cleared up at 275, 276. (12) and (13), see Giffin v. Ensign, infra.
. As to the appropriate guide posts, cf. United States v. Warren, 2 Cir., 1941,