Thе plaintiff-appellee, Randolph E. Valensi, recovered a judgment of $29,-773.81 in the District Court for the Southern District of New York against the defendant-appellant, M. Shaft Ira-vani Mottaghi (hereinafter Iravаni), for commissions due him on sales of wool and gum.
The principal question on this appeal is whethеr the district judge should have granted a new trial because of alleged perjury of the plaintiff, Valеnsi, at the trial as shown by alleged inconsistencies in testimony subsequently given by him at the trial of a suit brought by Iravani against Barkey Importing Co., Inc. for alleged breach of the contracts in regard to which Valensi hеre sued for commissions.
Valensi, a citizen of New York, sued Iravani, a citizen of Iran, in the United States District Court for the Southern District of New York in January 1952 to recover in excess of $50,000 alleged to be due him as commissions pursuant to agreement whereby Valensi acted as Iravani’s sales agent in the business of exporting wool and gum from Iran to the United States. ■
Defendant raised four defenses in his answer: (1) that the rate of commissions agreed upon for joint account shipments was 1% and not 3% ; (2) that as to the alleged 3% commission for sales of wool, Valensi had concealed the fact that the usual rate was 2%; (3) that Valensi, in dealing with Barkey Importing Co., Inc., “did not act in the best interests of defendant nor fairly or in gоod faith and thereby forfeited any right to compensation,” and (4) that he failed to receive proceeds from the Barkey Company and to remit them to the defendant; that he wrongfully withheld monies; that he furnished defendant with incorrect prices; and by these *262 failures forfeited his right to compensation.
After a trial in March 1954, at which Valensi and Iravаni were the principal witnesses, Judge Dimock submitted eight questions to the jury, six of which were answered favorably to Valensi and two of which were answered for Iravani. The principal question, number 1, as to Valensi’s alleged dishonesty and/or disloyalty was answered in favor of Valensi.
The court then computеd that the jury’s verdict required deductions of $27,-862.37 from the plaintiff’s total claims and entered judgment for $29,773.89 plus cоsts.
On June 28, 1954, new counsel for Iravani moved to set aside the verdict and for a new trial. Before this motiоn was argued, the defendant was substituted as attorney pro se and submitted a further affidavit executed Decembеr 6, 1954. The principal ground of the motion, and the only one which need concern us, is that the verdict had been based on alleged perjurious testimony of Valensi and Julius W. Lavis, an officer of the Barkey Cоmpany, and that the defendant was in possession of newly discovered evidence. The motion рapers consist largely of argument that Valensi had committed perjury at the trial, although the minutes wеre not then available to substantiate even this argument; and of counsel’s contention, without prоof, that Valensi had conspired with the Barkey Company against Ira-vani.
Meanwhile the trial of Iravаni Mot-taghi v. Barkey Importing Co., Inc. took place during October 1954 in the District Court for the Southern District of Nеw York. 1955,
The other grounds of appeal are arguments regarding the evidence and conclusions to be drawn therefrom, all of which were decided against the appellant by the jury in response to speciаl questions submitted by the trial judge. Indeed Iravani’s counsel took no exceptions to the court’s chаrge and on this appeal no objection is made to the charge.
One final point which Judge Dimock considered was the contention that a new trial should be granted because he did not submit to thе jury the question whether the parties had agreed that Va-lensi’s compensation should be limited by the amounts collected from customers in this country, as distinguished from credits set up by customers in Iran. But defendant hаd not previously requested that this be done, and had taken no exception to the charge аnd the questions submitted to the jury.
The appellant has enjoyed every protection to which a litigant is entitled. He was represented by able and conscientious counsel at a trial before а jury presided over by a judge distinguished for his courtesy, thoroughness and patience. After the trial, that judge afforded generous opportunity for the hearing of a motion for a new trial, and, having considered the motion, he found it to be without merit. We agree.
The judgment is affirmed.