No. 4268 | 9th Cir. | Feb 2, 1925
(after stating the facts as above). As the record fails to show that defendants below, plaintiffs in error here, moved for an instructed verdict on the ground of the insufficiency of the evidence, the general assignment that the evidence is insufficient to justify the verdict presents no question for review. Bank of Italy v. Romeo (C. C. A.) 287 F. 5" court="9th Cir." date_filed="1923-03-05" href="https://app.midpage.ai/document/bank-of-italy-v-f-romeo--co-8829343?utm_source=webapp" opinion_id="8829343">287 F. 5. In Penn Casualty Co. v. Whiteway, 210 F. 782" court="9th Cir." date_filed="1914-02-02" href="https://app.midpage.ai/document/pennsylvania-casualty-co-v-whiteway-8790719?utm_source=webapp" opinion_id="8790719">210 F. 782, 127 C. C. A. 332, we said: “When an action at law is tried before a jury, their verdict is not subject to review, unless there is absence of substantial evidence to sustain it, and even then it is not reviewable, unless a request has been made for a peremptory instruction, and an exception taken to the ruling of the court.” Laurie v. United States (C. C. A.) 278 F. 934" court="6th Cir." date_filed="1922-02-07" href="https://app.midpage.ai/document/laurie-v-united-states-8824226?utm_source=webapp" opinion_id="8824226">278 F. 934; Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A.) 299 F. 478" court="5th Cir." date_filed="1924-05-19" href="https://app.midpage.ai/document/bank-of-waterproof-v-fidelity--deposit-co-9335990?utm_source=webapp" opinion_id="9335990">299 F. 478.
Several other assignments are somewhat less indefinite. They are in substance'that the evidence failed to show that plaintiffs did not warrant the quality of the goods in controversy, and did not agree that tho defendants might return the goods in controversy at any time they desired to do so, and did not breach the warranty made in connection with the sale of the goods, and did not accept the goods returned to them by defendants. Passing all question of the defective form and sufficiency of such assignments, they are all disposed of by the record, which discloses evidence on behalf of the defendants in error, denying that there was a warranty of the goods involved, or that there was any agreement under which the goods or any part thereof could be returned, or that there was any breach of agreement of warranty. Tho weight of the evidence was for the jury, which was presumably properly instructed upon the law, and their verdict settling the facts will not be disturbed.
It is argued that the court erred in overruling defendants’ objection to the introduction of all but the opening and closing paragraphs of a certain letter offered by plaintiffs below. The letter, dated February 24, 1922, was written by the agent of Holland & Sherry to the Steil Company in reply to a letter and telegram sent by the Steil Company to Holland & Sherry, and was introduced with other correspondence upon the cross-examination of defendant Arthur Steil. In their letter the Steil Company complained of the quality of the merchandise, and said that they were returning certain goods found to be unsatisfactory, and that they were informed that in some instances allowances had been made for the poor quality of such goods. In the reply Holland & Sherry referred to “various acknowledgments” by the Stiel Company that they were overstocked, and took up the statement that much of the merchandise was unsatisfactory, and compared that statement with their experience with other customers throughout the country, saying that the statements of the Steil Company proved a desire to unload some of the merchandise of which they admitted they had bought too much. The letter went on to say that sales of goods from the same pieces were made to other tailors, who had not complained, and expressed regret that, under the facts and circumstances, no further allowances or extensions of credit could be given, and no more returned goods would be accepted. It may be that parts of the letter contained sentences of a self-serving nature, but as the whole letter pertained to, the transaction, and was a response to a letter already in evidence, notifying Holland & Sherry of the return of goods claimed to be unsatisfactory, the fact that the reply contained self-serving expressions did not render the letter incompetent. Hinton v. Welch, 179 Cal. 463, 177 P. 282.
It is argued that the court erred in “allowing the' evidence that other merchants to whom plaintiffs below had sold goods had made no complaint and found nothing wrong with said goods, to remain in the case for tho consideration of the jury after the failure of defendants in error to show that such goods were of the same manufacture as those sold to plaintiffs in error.” It will be observed that the assignment is only to allowing the evidence to remain; but, as defendants made no motion to strike out the evidence referred to in the assignment, they ought not to complain. However, the question of practice need not be dwelt upon, because there was direct testimony by plaintiffs below to the effect that they had sold goods of the same “range” to other tailors in San Francisco, and had received no complaints, and that a “range of goods” is tho same quality, or the different eolors or patterns of the same goods.
There is no merit in the contention that the Steil Company should have received credit for certain goods sent back to Holland & Sherry. Again the plaintiffs in error are confronted with the evidence, which is that prior to the sending back of any shipments Holland & Sherry wrote to the
The judgment is affirmed.