Stevens v. G. L. Rugo & Sons, Inc.

ques- The Water became dissatisfied. from

tions law were not free involved finally

difficulty and concluded were not protracted until after there had been

litigation in Penn several courts. Wa- inability proceed

ter’s its new spoken

extension until the court had

directly participation traceable to enterprise.

the Judge District unlawful filed Second Memorandum April 6,

with the Court on 1953 was justified in his conclusion on this branch expressed of lowing fol- the case which Magruder, J., part. C. dissented language opinion: “True, in his damaging injury, such effects of the delay, as loss reason of the continued January, 1951,

until the date two-party contract, but

avoidance of the continuation is attributable bona agree- litigation validity

fide ment, controversy. a real substantial damage directly, All of flows with- original cause, supervening out injury, imposed the unlawful restraint agreement repudiation

before

its anti-trust character.”

Affirmed.

STEVENS SONS, L.

G. RUGO & Inc.

No. 4721. Appeals States

United Court First Circuit.

Argued Nov. 1953.

DecidedDec. 1953.

Rehearing Denied Jan.

judgment from has which the appeal taken this court wherein the opin- accordance with its memorandum judgment ion ordered defendant for the dismissing plaintiff’s complaint, the and event addition ordered “that the foregoing judgment the reversed is had.” verdict set aside and trial is new Boston, Broadhurst, Austin It Court’s is evident from the District Bartlett, Ely, (Charles W. and Bartlett opinion for memorandum the basis Mass., Boston, Thompson Brown, on & dismissing plaintiff’s com- its order brief), appellant. directing plaint, judgment and Boston, Mass., ap- Hurley, John F. on its for a directed defendant motion pellee. evidence, plaintiff’s verdict based on the testimony plaintiff’s as to was the own MAGRUDER, Judge, Before Chief understanding meaning of the of the HARTIGAN,. Cir- and WOODBURY and involved, pres- contract to which we shall Judges. cuit ently equally from refer. evident opinion entertain- trial court Judge. WOODBURY, Circuit misgivings, of the ed view of some plaintiff, The himself out who sets language H. in Johnson York N. v. New England “citizen of and national of the a 48, Ry. Co., H. & 344 U.S. S.Ct. brought Kingdom Britain,” of suit Great judgment power as to its enter against defendant, in the court below motion for the defendant on latter’s corporation organized under the laws plaintiff’s evi- therefor at close of the Massachusetts, of the of Commonwealth dence, to which deci- it had reserved damages of a con- recover for breach sion, that, doubts, because of its employment.1 Trial before a tract order for a court entered its alternative began jury on Oc- the District Court action new trial so that in the event its day tober and on same ordering judgment for the defendant plaintiff’s the close evidence the beyond appeal held on should be moved for directed verdict defendant could, powers, of a second advance ground pro- on of “lack evidence by granting trial, reach the same result by plaintiff.” court reserved duced The summary for a .motion the defendant and the defendant action motion testimony intro- on based thereupon proceeded put its evi- first and the trial. Thus the duced at following day dence. On the at the close appeal question on this foremost evidence, did of all the the defendant under the law of the Common- whether for a move directed verdict case Massachusetts, conced- which wealth return- submitted obviously edly applies, there is evi- in the sum ed a verdict enough submitting the dence to warrant $10,500. The defendant made mo- jury. plaintiff’s to a against tion to the verdict aside set trial, quantity on for a new nevertheless No- but The a chartered surveyor estimator, ordered vember the court hear- and a member ing Surveyors the motion which the on of the Institute Chartered England, on made a directed verdict had in London. He was trained plaintiff. up pursued introduced to 1949 he his occu- evidence estimating pation quantities the motion under court took advisement January 5, 1953, required it entered erec- of materials costs Clearly controversy matter ex under Title 28 § risdiction TJ.S.O. $3,000 therefore, beyond (2) is, question. the sum or value of exclu ceeds ju- interest and costs. Federal sive of structures, buildings qualified at mine whether the and other tion of harmoniously England, four to do work and for about fitted and later first Early organization, years into the Indies. defendant’s in the British West plaintiff also to an advertisement determine whether the in 1949 he answered employment by in found a “A-l Estimator” inserted his for an congenial. defendant, publication and There is no reference trade correspondence period, response a letter to an thereto received initial trial stating plaintiff categorically president and the testified from the defendant’s nothing place employment offered whatever about of the was said that the period Massachusetts, Boston, a and conversation with was president, position permanent.” Further defendant’s “the correspondence but he early followed, came to the ily United States with his fam- and understanding gave up posi- on September his that he was to permanent employment have chief estima- with the tion the West Indies as beginning. English architects, from and defendant firm of tor fam- came to the United States with his ily. recognized The District Court that on president He and the defendant’s the evidence outlined above the met in Boston for an interview reasonably could find that the defendant following office, plain- latter’s which the plaintiff accepted “per- and offered England, tiff went to there, settled his affairs employment manent” as defined in Car- March, 1950, and late in returned nig Carr, 1897, 167 Mass. 46 N.E. family to the United with States 35 L.R.A. start immigration permanent On the visas. relationship. their en- Nevertheless it April 6th of he went to work for the de- tered for the defendant be- salary fendant at a a week. $150.00 plaintiff’s testimony cause of the as to employment, however, His lived, was short understanding meaning of the May 26, for on the defendant’s “permanent.” said, word Stevens in re- president complained to the sponse questions by the court: respect quantity quality with and it, “As I understood when Mr. it, of his work and his attitude toward Rugo wrote to me and told me the discharged and him as of the first of job permanent awas one and also June. my when told me in interview employment The contract of involved job per- him that the also awas litigation in this was not reduced to one, manent Ias understood it there writing. terms, therefore, Its must be plenty of work to be done and correspondence drawn from the which as far one could see there was no passed between and the de- reason to assume that this work president testimony fendant’s and would their not cease—that this work cease, providing they and as to what I said to one another. The satisfactory Rugo, pro- to Mr. president defendant’s testified sub- viding got other, we on with each stance that he told the providing job, pro- I did the position “permanent,” offered was as he viding do, there was work to I could had said in his letter to the job really assume that had quoted opinion, from earlier in this possibility. term the sense that the defendant’s business bright prospects were and there was good reason to believe that it would need “perma- “I understood the word mean, your services a skilled Honor, estimator job nent” Furthermore, plenty indefinite time. it, he said he of future in I could plaintiff fully dig told myself job in in and know agreed, employ- very providing at the outset of the well that I was satis- period factory ment there would Rugo, be a trial providing to Mr. only three months in naturally well, order not you like, to deter- Mr. Ru- — go me, pro- perhaps years, comple satisfactory even or until the office, given

viding working piece hap tion of a of work or the I liked meaning pening my job, providing re- Its I did I could some event. elastic, depending upon basis the context main there on an established against hand, background which and the and not as—on the other opposed used, meaning temporary where not for that basis it is to a job goes particular or reason so indefinite that one months, permanent employment goes en cannot be in for two three employ forced. in contract of find another As used told he then he is has finishing “may fairly job to mean job, a ment be held or that will be long employee as re is so he to serve time.” certain properly, mains able to do his work it was that The District Court said engaged employer continues to be clearly apparent from these statements hiring the business to relat which position that the that Stevens understood (Rev. Williston, permanent, ed.” Contracts § that his him was but offered employment Ed.1936). each in it at will until in which “was the sense This is relationship party was satis- Carnig knew the interpreted in word was factory.” court conclud- Wherefore the Carr, supra, the court said wherein discharged plaintiff ed that since page 547, page 46 N.E. at 167 Mass. mutual been es- before satisfaction 118: plaintiff tablished, not recover could parties in- “To what the ascertain matter of law. feel constrained as a We by ‘permanent employment,’ tended disagree for we court mis- to think the necessary the cir- it is to consider testimony quot- plaintiff’s construed surrounding making cumstances ed above. contract, subject, the sit- already pointed out the we have As parties, and relation of the uation definitely no trial testified taking which, the sense in these agreed upon, period or even men- things account, the words would into perma- employed tioned, he that was but commonly understood; it be nently when from the Thus he outset. may fairly par- that the be assumed by “permanent” defined what meant them in used and understood ties not think he have intended do could we Navigation Schuylkill that sense. way in such as frame his definition to [Pa., 477,] Moore, 2 Co. v. Whart. period initial trial to de- to include Looking matter in at the Instead we mutual satisfaction. termine way, words we think that the would “permanent” he intended to define think commonly meaning as understood be meaning life, or for but as not as forever long the defendant was that so as long meaning only for as there was as engaged enameling, and had work party each was satisfied to do and work do, plaintiff could de- this, relationship. And es- with the sence, do, plain- as the to and so sired of the word the usual definition is do work tiff was able to satis- under con- the one in contracts such as factorily, would the defendant em- sideration. him, sense, ploy and that permanent; employment would be “permanent” word is, employ would be under infrequently used in contracts of necessity looking for no work ment, sense of its absolute but rely elsewhere, enduring everlasting could ar- forever without or rangement enduring made. So change, thus con- even as life. or strued, capa- distinguish the contract would be to in a relative used sense enforcement, there temporary employment would ble or transient mutuality time, because fixed, usually no want of limited as some days, weeks, not have bound him- period of months (Rev.Ed.1936). Contracts This self to continue in the defendant’s 675A § employment.” is the law in Massachusetts even as personal contracts service wherein This, effect, practical in- is the same personal taste, fancy matters of bility or sensi- terpretation upon “perma- put word concerned, are a contract Hence, plaintiff. nent” employ Singer, supra, an actor. Fried v. did, find, should doubt 242 Mass. 136 N.E. 609 and cases “permanent” had the of a status interpretation cited. But a less strict employee beginning of em- long ago given per- to a ployment question arises as shop form industrial service discharge. justification for his employer’s satisfaction,” for in “entire There is no doubt that the Hayden, 1872, Sloan v. continued to work for the have setting par- was said that to do and that the was satisfied performance ties must have intended job. Nor there doubt with his employer’s “reasonable satisfaction” president was dis- the defendant’s interpretation since the stricter plaintiff’s satisfied with work and employer unreasonably allow the prive to de- discharged him. employee of the fruits of his fully performed although contract when he had plaintiff’s employment, The good part “permanent” outset, being his of it faith. also See con- Rooney Weeks, 1935, 18,194 v. upon 290 Mass. ditioned the defendant’s satisfac- work, N.E. which plaintiff’s ques- seems to teach that un- tion with the express contract, less the words of the or tion arises whether the intro- subject matter, clearly show at duced sufficient evidence the trial to parties by showing perform- intended “satisfaction” to sustain his of burden subjective mean Singer, satisfaction of the ance of the condition. Fried v. particular employer, 527, 532, 242 Mass. 136 N.E. 609. court will con- employer’s question strue the word to mean the And the answer to this turns meaning given upon satisfaction as a reasonable man. to be to the word “satisfaction.” present There is no evidence in the parties record that the in the course of might questioned be as an negotiations leading up their to the con- proposition promise abstract whether a tract used the word satisfaction in its satisfactory performance to render subjective presi- sense. The defendant’s party a contract was il the other not used, dent testified that the word was lusory conditioned character because appear party it does not caprice he used it or whim of the to be personal taste, promises reference to his But such are not un whim satisfied. contracts, caprice. and contracts con And since common was em- generally highly taining upheld ployed capacity, them have been technical one construing promise taste, fancy in sibility of the courts which matters and sen- way requiring performance concerned, were as at least satis it fol- factory party Hayden, other exercise lows that the rule of v. Sloan su- judgment. Williston, applies. search, pra, therefore, honest Our of an question employment lack of 2. consideration tract of for as as employee faithfully neither raised nor discussed tho “shall was and dili- plain gently perform employ- would trial. But it seem that duties declining tiff in employment to renew his contract of was not too ment” indefinite to be en- gave forced, might in tho West Indies that whatever the law elsewhere, employee for much consideration promise defendant’s the fact be employment permanent as the not does ployer to remain with the em- plaintiff gave Kirkley F. H. Rob v. definite time “does not in- Co., 1929, contract, nor, itself, erts 268 Mass. validate tho make citing company,” 167 N.E. wherein Car it terminable at the will of the nig Carr the court said that a con- familiarizing en- faith on himself new with his of bad limited evidence discharging part the vironment. the defendant’s plaintiff, to a search but is broadened might Certainly jury have might jury evidence from which the foregoing found on the facts that properly inman find that reasonable grounds reasonable position have been defendant’s plaintiff’s per dissatisfaction with the plaintiff’s performance. satisfied with the formance. But we think clear that it is evi- We have not far to look might contrary, also find the dence. apparently it did when it returned true, evidence, There was it is plaintiff.3 verdict for the It follows that large in a error made one rather motion for the defendant’s a directed computation quantity he made which granted verdict should have been defendant, perhaps he and that unnecessary this renders for us to de But made a few other smaller errors. power cide whether the court had the were there was evidence that his errors grant it under the Federal Rules of expected in the no more than be Procedure. Civil performance of kind technical opinion, In its memorandum the trial employed work he was to do and that his reserving court stated that its reason caught when errors were and corrected decision the motion for a directed accuracy work cheeked for allowing go the case to practice errors was the usual because that, jury, should later infrequently were not made. such as his improperly held the motion There was also evidence granted, again the would not be tea, took time out the afternoon testify. forced to the cross Atlantic to pleaded prior that on he en- occasions are not able to We reconcile this state- gagement when asked to work overtime ment with the alternative order working night, at that after overtime he judgment new trial the directed the morning, came in late the next and that erroneous, verdict was unless the trial registered objection doing he his rou- thought court the “new trial” could be ground computations on the tine himself by on motion decided the defendant such work could be done as well and that summary judgment. pro- This latter by junior expense employee. at less On not now cedure is available view of hand, the other there is evidence that holding presented our that evidence obstinately contumaciously persist- he may jury question. now too be late change ways ed in his when asked to may order a new trial and it be that in contrary, appears it them. On the opinion view of our there is no occasion by superiors when taken to task Nevertheless, think for one. we willingly readily con- consented to trial court’s hands should not be tied form to the defendant’s office routine respect. Accordingly, will ex- in that we Naturally enough practice. powers our broad under Title 28 ercise difficulty plaintiff encountered some 2106, and vacate the U.S.C. Sec. entire work at first because of his lack below, judgment specifically without di- familiarity prices local with unit for con- recting entry judgment for of a masonry like, crete, and with plaintiff on the verdict. making computations in United States money. judgment But difficulties of this nature of the District Court is The by anticipated been have the de- and set aside and the case is re- must vacated hired, when the fendant and manded to that court further con- appears rapidly proceedings. it sistent charge part therefore, sume, was not made a The court’s case was sub- Apparently jury record. was not mitted to the accordance with the objected by appellant. We as- law Massachusetts as outlined herein. though Judge suf- (dissent- But the evidence was even MAGRUDER, Chief require ficient to the submission of ing part). recog- many jury, case to there are Assuming the correctness justify the nized reasons which would opinion view, expressed in the court’s setting judge trial aside a verdict Judge Woodbury, there was granting a new trial. See oft- produced the trial sufficient evidence Judge quoted discussion Lurton the case require the submission Ry. Mt. Adams Lowery, Cir., 1896, E. P. Inclined Co. & court, agree appellate jury, I that the F. 476- vacating judgment of the district in court, judge, instance, 477. For the district case back not send the should might witnesses, who saw heard the to enter court the district a mandate to evi- the view that the defendant’s jury’s judgment credible, and that dence was the more Montgomery &Ward I read verdict. As against the verdict for the Duncan, 61 S. 311 U.S. v.Co. weight the conclude, of the evidence. Or he that the L.Ed. seems Ct. from the size of the power to appellate have court would not weigh jury probably did not disposition of the case. make this liability impartially. In issues of appeal disposition on that such reason is might come to determi- instances he judge from the out the trial would cut justice interest of nation that primary discretionary exercise of his verdict should be set aside and the issues to determine whether set function jury. to another deter- submitted Such grant verdict aside primarily mination entrusted trial, de- on motion of the a new either position judge, in a trial who is better 59(b), F.R.C.P., fendant, under Rule appellate justly court to rule than the judge’s U.S.C., own initiative or on the intelligently on whether a new trial 59(d). here under Rule The defendant granted. should be for a new has had no occasion to move 59(d), foregoing assumption district trial under Rule since the All is on the colleagues judge my for the defend- that are correct in con- entered notwithstanding jury’s cluding ant the verdict there was sufficient evidence plaintiff. for the at the trial to warrant submission of the My jury. is, case own view how- Furthermore, even we the ever, failed to make the entry power judgment to direct the jury, out a case for the under the sub- verdict, certainly not on the quired we are re- law of contracts as declared stantive 2106; 28 to do so under U.S.C. § courts, which admit- the Massachusetts entirely us, proper I and think it is tedly applicable is here. Judge Woodbury’s as is indicated agree opinion, remand on I that under the evidence sub- to the case judge mitted it would be not unreasonable for to leave the district free terms as offering Rugo, a “permanent” to conclude that to enter or to employment, promised the grant the verdict a new set aside and something employ- than more trial, judicial inas the exercise of his employer; will of the ment at the judge discretion the district deems best. is, promised that the defendant effect judge What district the will not able job long keep plaintiff in to the the so to do tois set the verdict aside on the as the defendant remained business ground that the evidence was insufficient had work which and could do jury. to make a That action long do, and desired to so as the opinion would be inconsistent with the perform to was able his work court, presum- and mandate of this with satisfaction”. But I “reasonable ably by could be corrected gave order of am unable to find anything satisfy this court under 28 U.S.C. 1651. could the com- § 142 sulting employer requirement employment

mon of “consideration” law by “permanently”, supposed promise defend- bound for that whereas the em- ployee Kirkley quit ant. free to at will. Co., 1929, v. P. H. Roberts Mass. cases, As I read the Massachusetts 289, perhaps is N.E. so clear Supreme Court adheres to Judicial facts, on a case I but as understand it of consideration orthodox doctrines lay any the court did not intend to down declaring local common law of con- requisites different rule as to the con- promises if A work for tracts. Thus to Mass, in 268 sideration. The court page long chooses, promises B' so A B as page 290, 167 N.E. at said year, promise employ for one A A’s plaintiff, considering whether to support, illusory, and will not and ren- employer leave his then throw his employ enforceable, promise der B’s defendant, promised lot with that, year (or A for some indefi- for one other if he would do so come dependent upon nite the will of time defendant, given employ- he would be gives employer). A in- Unless some long faithfully ment for so and dili- dependent consideration, other valuable gently performed his duties. de- “He services, counterpromise than do, cided so to and received this written merely B, employment is at the agreement. Here was sufficient con- course, parties. will Of so of both promise employ- sideration for given, received, the service being so, ment.” That the court said agreement parties controls employee did not matter that the on his compensation and amount of other terms part promise did not to remain with employment; but otherwise defendant for definite time. On the agreement obliga- executory creates point of the court consideration relied Campion Cf. v. tions on either side. particularly upon decisions, two earlier R., 1930, 269 Mass. Boston & Maine R. Carnig Carr, v. which has been referred 579, 169 N.E. 499. above, Copper and Revere v. Boston nothing leading in the case of There is Co., 1834, Pick., Mass., In Carnig Carr, 1897, latter case there was a bilateral con- suggest employer’s N.E. that an agreed corporation tract which the employment permanent employ for an indefinite valid and enforceable absence corporation until time should be dis- counterperformance some or counter- solved, employee part promise by employee adequate promised satisfy re that he devote the technical common law the whole quirements employer’s In that his of “consideration”. of time to the business exchange engage case, in for the defendant’s and would no other business give promise plaintiff permanent long employee the for to so as the should live. engrav agreement employment obviously as an enameler and Such met the com- agreed er, give up plaintiff requirements to his mon law of the consideration. competing Hayden, and sell business his stock The same true in v. was Sloan 1872, 141, Rooney 110 trade to the defendant. The Mass. v. bargain Weeks, 1935, 18, performed part of the 290 Mass. 194 his N.E. 666. employment. employer’s In each of two the into the defendant’s those cases entered promise employment of indefinite It held that the defendant was liable for so was employee for contract on of later as the rendered breach of account reason- good ably satisfactory services, discharging to be the without deter- objectively, merely promise mined Here the defendant’s of cause. at the caprice employer, permanent employment supported supported of the by good by independent consideration, valuable in that consideration the em- given by plaintiff; case, ployee promised for a the of to work definite time, course, period did not matter of in the first case for it the re- three

143 1883, years Co., ten for man 135 second case American Ins. up Maine 251. doctrine of months. In Daniell v. Boston & “It cut 337, by 337, promisee R., 1903, roots, 68 N.E. consideration a R. 184 Mass. gratuitous any appear promise lack could it did not issue make bind- ing by acting subsequently or discussed on of consideration was raised in reliance Holmes, J., it.” the court. v. Commonwealth Savings 1884, Bank, Scituate 137 Mass. bar, appeared from In the it case at Meles, 1901, See 302. also Martin v. testimony plaintiff’s own 179 Mass. N.E. promise for did to work time, Rugo my any period right, If conclusion definite thus far is upon dependent indefinite time the evidence not sufficient case was go jury (as judge control the to a condition not within the employee. the district explained held), necessary He his understand- then to con- becomes ing “permanent” question procedure. mean to sider the word satisfactory that, providing to he was putting When the finished Rugo satisfactory Rugo Mr. and Mr. evidence, the defendant made a mo- working him, providing I liked “and tion for directed verdict. This motion office, providing I did added] [italics 50(a), F.R.C.P., under made Rule my job, I estab- could remain there on an 50(b). provision not Rule There is that, even lished basis”. It seems clear 50(a) authorizing judge in Rule the trial regard- version, plaintiff’s own on the action reserve on motion until entirely employment ed the continued optional jury’s pur- after the pose verdict. The whole part. on his 50(a) of motion under Rule tois any independent Nor can I valu- find point, terminate case at that without plaintiff’s part able consideration putting necessity the defendant to agreed given bargained for as the introducing his own evidence thus exchange promise of defendant’s extending the duration of the trial. See “permanent employment”. true Calculating Co., Bach Inc., Friden Machine necessary it was Cir., 148 F.2d give up possibility of continued em- commenting on the similar motion under ployment in Trinidad and to come 41(b). Rule It is well-settled that if a Boston, accept employment in in order to 50(a) motion under Rule directed defendant’s Boston office. But nec- this plaintiff’s verdict at close of the essary plain- preliminary action thereupon denied, and the defendant regarded per- hardly tiff can as the presents evidence, own this consti- bargained formance of an act which was motion; tutes a waiver of the unless a exchange agreed-upon for as for a motion for renewed a directed verdict is by Rugo give per- unilateral evidence, made at the close of all employment manent precluded questioning defendant is from plaintiff’s option. on See Williston sufficiency appeal of the evidence (Rev. 1936). ed. Nor Contracts § jury. case to the to take the Minnehaha suggested that, apart from has been County Kelley, Cir., 8 v. 150 F.2d requirements the conventional of consid- 356, 359; Packing Ruud v. American & might eration, the defendant’s Co., Cir., 538, 1949, 9 Provision 177 F.2d binding upon ap- be and enforceable 542. plication principle of the stated in Am.L. Contracts, present case, Inst.Rest. of In the when the Further- defend- § put proceeded evidence, to more that section the Restatement ant its previous be in does not seem to accordance with motion a directed verdict 50(a) expended Spillane law. the Massachusetts See v. under Rule itself. 1925, Yarnalowicz, 168, judge, sup- 252 the trial 147 action of without 571, 1401; rules, undertaking port 38 N.E. A.L.R. Davis Ger- v. re-

144 until after fact and that entitled action on the motion serve judgment no to have been of as a matter of law. seems to me to open to course effect. I think that When a case in a court federal district judge, for the the district after verdict jury has been submitted to a brought in, had been jury plain- has returned a verdict for the 50(a) motion Rule same as no under tiff, gen- I do not think that there is a made. directed verdict had been a power judge, eral “inherent” trial 50(b) application Rule has no independent express of some authoriza- present oc- case. Therefore there is rule, judgment tion in statute or to enter accuracy of the casion to consider the notwithstanding for the defendant York, N. H. statement in Johnson v. New original question verdict. As an 50, Co., 1952, 48, 73 344 & H. R. R. U.S. policy, may there much to be said though 125, 127, that, even dis- S.Ct. recognition power. a of such inherent position of a motion for a directed ver- enveloped But the matter become has of all the evidence is dict at the close technicalities, stemming part nevertheless, reserved, 50(b), under Rule significance Supreme which the Court judg- “in the of a motion absence concluding has read into the of the clause notwithstanding made ment the verdict Seventh Amendment: “In at com- Suits days trial court within ten after law, controversy mon where the value reception of a verdict the rule forbids twenty right dollars, shall exceed judge appellate trial or an court by jury preserved, trial shall be and no judgment.” (Italics add- enter a such jury, fact tried shall be otherwise ed.) re-examined in Court of the United States, according than of the the rules pre- here Under the circumstances common law.” Cf. Baltimore & nothing Carolina sented, I can find in the rules or Line, Inc., Redman, 1935, 654, v. 295 U.S. au- in the decided which would cases 1636, 55 S.Ct. 79 L.Ed. judge judgment thorize the trial to enter Co., 1913, Slocum v. New York Life Ins. notwithstanding for the defendant 364, 523, 228 33 U.S. S.Ct. 57 L.Ed. 879. Believing did, verdict. as he Bedford, 1830, See also Parsons 3 Pet. evidence was not sufficient to make case 433, 447-448, 732; L.Ed. Cone v. West stage jury, for the all he could do at that Virginia Pulp Paper Co., 1947, & 330 U. the verdict and leave the set aside 212, 752, 849; 91 L.Ed. S. S.Ct. Globe standing I for a new trial. do not ease Co., Inc., Roman, Liquor v. San power he had to enter a think that 177; U.S. S.Ct. 92 L.Ed. cutting judgment, out final adverse thus York, Johnson v. New N. H. & H. R.R. right plaintiff from the to another Co., 1952, 344 U.S. 125. The S.Ct. though trial, even might be, not matter is so clear as it doomed to failure at such sec- would be I draw from the inference the various if the evidence was the same. ond trial Supreme pow- Court decisions would the trial Nor situation judgment notwith- er of a court enter necessarily judge be forced to enter standing narrowly restrict- the verdict is judgment for the defendant if the de- ed, proce- and is available immediately fendant, after the new trial presented in the at dural situation ordered, summary judg- moves bar. and attaches to his motion the rec- ment My testimony pre- that I conclusion is would reverse taken at the ord judgment of district court di- available to the trial. The evidence vious recting entry trial second notwithstanding same; and thus the standing filing proper the alternative order counter affidavits but leave directing that the verdict be set aside defendant’s claim that there defeat genuine a new trial had. as to material issue

Case Details

Case Name: Stevens v. G. L. Rugo & Sons, Inc.

Court Name: Court of Appeals for the First Circuit

Date Published: Jan 5, 1954

Citation: 209 F.2d 135

Docket Number: 4721_1

Court Abbreviation: 1st Cir.