Daniels v. Goldberg

173 F.2d 911, 1949 U.S. App. LEXIS 2947

• Court: Court of Appeals for the Second Circuit
• Decided: April 5, 1949
• Docket: No. 21251
• Status: Published

Opinions

FRANK, -Circuit Judge.

1. Defendant (relying on his exception to the charge and on the denials of his requests -to charge) contends that the judge erred in telling the jury that it must decide for plaintiff unless “there was a full and complete agreement.” Defendant thus asser-ts that the jury should have -been told that defendant mu-st win if the jury •found an understanding that the notes were to -be replaced by five-year notes if defendant bought -the factory.³ For the purpose of deciding this case, we have viewed it as if defendant’s answer had been amended to -conform to the evidence, and have construed most favorably to defendant not only the evidence but the New York decisions relative to the parol evidence rule.⁴ Even so, we perceive no error. 'We. think defendant .was not entitled to a verdict unless the jury found that the specific understanding (as to -the replacement of the notes by five-year notes) -constituted part of the entire agreement to which defendant’s witnesses testified. For there was no evidence of any such a specific understanding apart from such a larger agreement. Accordingly, the charge for which defendant contends was one which the evidence did not justify.

2. That pant of Dr. Klein’s testimony which by" inadvertence was not read to the jury contained nothing of significance which could have affected the jury’s verdict.

3. Defendant urges that the judge erred because he showed, in questions he addressed to one of defendant’s witnesses, that he did not believe that witness. But a federal trial judge is not precluded from explicitly saying to a jury that he disbelieves a witness, provided the judge also states that the determination of the facts is for the jury. The judge, in effect, so stated here. Nor can we agree that in any other respects the judge improperly conducted himself.

Affirmed.

3 The five years had not expired at the time of suit or judgment.

4 That is, for purposes of this ease, we interpret the New York rule to he as follows: Where a note is delivered upon a condition that it is to be legally inoperative unless certain events occur, the note is to be regarded as if it had not been delivered unless those events occur. See, e. g., Niblock v. Sprague, 200 N.Y. 390, 93 N.E. 1105; Smith v. Dotterweich, 200 N.Y. 299, 93 N.E. 985, 33 L.R.A.,N. S., 892; Jamestown Business College v. Allen, 172 N.Y. 291, 64 N.E. 952, 92 Am. St.Rep. 740; Hoagland, Allum & Co. v. Allan-Norman Holding Corp., 228 App. Div. 133, 239 N.Y.S. 291.