W. R. Grace & Co. v. Shaghalian's Inc.

Rugg, C.J.

This is an action of contract to recover the price of twenty tons of 1919 crop fair average quality ungraded Chinese shelled peanuts. The peanuts were sold by written contract. The defendant refused to accept or receive them on the ground that they did not correspond to a “type sample” shown at the time the contract was made; The case was tried to a jury. No exceptions were saved by the defendant at the jury trial. The verdict was in favor of the plaintiff in the sum of $4,175.29. The defendant thereupon filed a motion for a new trial on numerous grounds. One of these was founded on a calculation to the effect that the verdict as returned must have included specified items for cartage and storage, insurance, demurrage and handling charges aggregating a certain amount. The judge denied the motion for a new trial, provided the plaintiff would remit that amount, which it did.

The defendant thereupon filed this bill of exceptions touching the disallowance of its motion for a new trial. It is familiar law that a party cannot raise on a hearing of a motion for a new trial questions which might have been raised at the trial. It is the general rule that the disposition of a motion for a new trial rests in sound judicial discretion. The action of the trial judge on such a motion will not be set aside unless it amounts to an abuse of judicial discretion or excess of jurisdiction or some similar gross error.

The judge in the case at bar made no rulings of law nor findings of fact. He simply denied the motion provided the plaintiff remitted the stated amount. It is manifest that a denial of the motion in respect to its grounds that the verdict was against the evidence and the weight of the evidence, and against the law, that it was excessive and contrary to the law as to damages, opens to the defendant no question of law at this stage of the case. The ground that there was no evidence that the peanuts were suitable for the purpose for which they were understood to be used by the defendant also presents no question of law at present. That question of law could have been raised by appropriate request for an instruction to the jury. Moreover, the only evidence that that purpose was made known to the plaintiff came from the defendant. The agent who made the sale for the plaintiff denied that he knew that purpose. The instruction to the jury on this point was sufficiently favorable to the defendant.

The same observations apply to the contention that there was no evidence that the peanuts delivered corresponded to the sample. Moreover, it appears that the sample shown at the time of sale was a “type’ sample,” defined to mean “a sample of a previous crop showing how the peanuts generally run.”

The apparent inclusion in the verdict of certain items deducted as a total by the judge from the verdict, as the condition on which the plaintiff could retain the verdict for its balance, did not manifest such mistake, error, misunderstanding, dereliction of duty or abuse of trust on the part of the jury as to taint the validity of its action as a whole as matter of law. The judge had seen the witnesses and the jury and watched the course of the trial. He was in a better position than anybody else to reach a right conclusion on the point whether the verdict ought to stand or be set aside in its entirety.

No error of law or abuse of sound judicial discretion is revealed on this record in the disposition made by the judge of the motion for a new trial.

Exceptions overruled.