Finance Co. v. Kresge

179 F. 1022, 1910 U.S. App. LEXIS 5452

Opinion

J. B. McPHERSON, District Judge.

As I am at present advised, the verdict in this case appears to be for the right party, but the manner in which it was reached is riot wholly satisfactory. I submitted a controlling question of fact upon which the weight of the evidence seemed to be with the plaintiff, and (to avoid confusing the jury) I abstained from referring to other questions which the plaintiff claimed to be questions of law that in any event would require a binding instruction in its favor. If the verdict had been for the plaintiff, obviously no decision upon these questions of law would have been necessary. But the jury came in with a verdict for the defendant, and I was therefore obliged to determine whether-I would receive it, leaving the plaintiff’s questions of law undecided, or whether I would decide the questions provisionally and direct a verdict for - the plaintiff. The- latter course had this advantage: That these questions of law might upon more deliberate consideration be found to.justify the direction. In the hope, therefore, of thus ending the litigationr I concluded to direct a verdict for-the plaintiff, but I am now inclined to doubt whether this direction can be sustained. At all events, it will I think be more satisfactory to have the case tried before another jury, who may perhaps be able to settle the dispute finally, although the unavoidable delay of four or five months is to be regretted. A new trial is granted.