Luson v. Fabricating

• Court: Court of Appeals for the First Circuit
• Decided: June 4, 1992
• Docket: 91-2239
• Status: Published

Opinion

USCA1 Opinion

June 4, 1992             ____________________
        June 4, 1992             ____________________

        No. 91-2239
        No. 91-2239

                       LUSON INTERNATIONAL DISTRIBUTORS, INC.,
                       LUSON INTERNATIONAL DISTRIBUTORS, INC.,

                                 Plaintiff, Appellee,
                                 Plaintiff, Appellee,

                                          v.
                                          v.

                     FABRICATING AND PRODUCTION MACHINERY, INC.,
                     FABRICATING AND PRODUCTION MACHINERY, INC.,

                                Defendant, Appellant.
                                Defendant, Appellant.

                                 ____________________
                                 ____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS
                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________

                                 ____________________
                                 ____________________

                                        Before
                                        Before

                             Breyer, Chief Circuit Judge,
                             Breyer, Chief Circuit Judge,
                                     ___________________

                                 Cyr, Circuit Judge,
                                 Cyr, Circuit Judge,
                                      _____________

                             and Stahl*, District Judge.
                             and Stahl*, District Judge.
                                         ______________

                                 ____________________
                                 ____________________

Richard  C. Van  Nostrand with whom Mirick,  O'Connell, DeMallie &
            Richard  C. Van  Nostrand with whom Mirick,  O'Connell, DeMallie &
            _________________________           ______________________________
        Lougee was on brief for appellant.
        Lougee was on brief for appellant.
        ______
            Robert  E. Sutton  with  whom Sutton  &  Kelly was  on  brief  for
            Robert  E. Sutton  with  whom Sutton  &  Kelly was  on  brief  for
            _________________             ________________
        appellee.
        appellee.

____________________
                                 ____________________

____________________
                                 ____________________

*Of the District of New Hampshire, sitting by designation.
        *Of the District of New Hampshire, sitting by designation.
            CYR,   Circuit  Judge.     Defendant  Fabricating  and  Production
            CYR,   Circuit  Judge.
                   ______________

        Machinery,  Inc. appeals a district court judgment entered in favor of

        plaintiff Luson  International Distributors, Inc. for  breach of their

        contract for  the sale of  goods.  Appellant claims  that the district

        court improperly  denied its  motion for judgment  notwithstanding the

        verdict, or for  new trial,  and gave inadequate  instructions to  the

        jury.  We affirm.

I
                                          I

                                      BACKGROUND
                                      BACKGROUND
                                      __________

During the  latter part of 1988,  Luson shipped  on consignment to

        appellant, for  ultimate  sale to  an end  user, a  large and  complex

        machine known as a  vertical machining center which appellant  in turn

        sold and delivered to Pro-Cut Machine.  Appellant paid Luson the first

        installment in accordance  with Luson's invoice.  Installation  of the

        equipment at Pro-Cut occurred in February of 1989.  Shortly thereafter

        operational problems developed with the machine leading to a series of

        communications  between appellant  and  Luson during  the period  from

        March  through July  1989.   The  problems  persisted despite  several

        attempts by Luson to rectify them.  Finally, by letter  dated July 27,

        1989,  Pro-Cut demanded the return  of its deposit  from appellant and

        stated  its willingness to return the machine to appellant.  Appellant

        credited  Pro-Cut's  account, but  the machine  was never  returned to

        Luson.  Luson brought  its diversity action for breach  of contract in

        October  1989.   As  the parties  stipulated  that revocation  of  the

acceptance of the machine  was warranted, the only matters  in dispute

        were whether the  notice of  revocation of acceptance  was timely  and

        proper.

II
                                          II

                                      DISCUSSION
                                      DISCUSSION
                                      __________

        A.  Judgment n.o.v.
        A.  Judgment n.o.v.
            _______________

Judgment n.o.v.  is unwarranted unless the evidence "'could lead a

        reasonable person to only  one conclusion,'" Hendricks & Assoc.,  Inc.
                                                     _________________________

        v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir. 1991)  (quoting Conway v.
           ____________                                              ______

        Electro Switch Corp.,  825 F.2d  593, 598 (1st  Cir. 1987));  "namely,
        ____________________

        that the moving party was entitled to judgment," id.; see Fed. R. Civ.
                                                         ___  ___

        P. 50(b).  The trial court may not assess the  credibility of witness-

        es, resolve conflicts  in testimony  or weigh the  evidence, but  must

        view all facts and reasonable inferences therefrom "'in the light most

        favorable to the party for  whom the jury held . . . .'"   Hendricks &
                                                                   ___________

        Assoc.,  Inc., 923 F.2d  at 214  (citing cases)  (quoting Chedd-Angier
        _____________                                             ____________

        Production Co. v.  Omni Publications  Int'l, Ltd., 756  F.2d 930,  934
        ______________     ______________________________

        (1st  Cir.  1985)).   Thus viewed,  unless  the evidence  "point[s] so

        strongly and overwhelmingly in  favor of the movant that  a reasonable

        jury  could not have arrived  at [the challenged  verdict]," the trial

        court must sustain it.   Id. (quoting Chedd-Angier, 756 F.2d  at 934).
                                 ___          ____________

        The denial of a motion for judgment n.o.v. is reviewed under "the same

        stringent decisional standards that control the district court."   Id.
                                                                           ___

        (citing cases).   Appellant bore the burden of proving that its notice

                                          3

of revocation  was adequate and  timely.   See Jeffco Fibres,  Inc. v.
                                                   ___ ____________________

        Dario Diesel  Service, Inc., 13 Mass. App.  Ct. 1029, 1030, 433 N.E.2d
        ___________________________

        918, 921  (1982) (buyer  must prove when  it revoked acceptance).   As

        there  was substantial  evidence  to  support  the jury  finding  that

        appellant's notice of revocation to Luson was inadequate, the district

        court correctly denied the motion for judgment n.o.v.  See Conway, 825
                                                               ___ ______

        F.2d at 598 (judgment n.o.v. improper if substantial evidence supports

        verdict).

            A revocation of the acceptance of  goods under Uniform  Commercial

        Code   2-608(2) "is not effective until the buyer  notifies the seller

        of it."   Mass. Gen. L.  ch. 106,   2-608(2).   "'[W]hether the notice

        requirement has been complied with is a question which is particularly

        within the  province of the [factfinder].'"   Delano Growers' Coopera-
                                                      ________________________

        tive Winery  v. Supreme Wine Co., 393 Mass. 666, 675, 473 N.E.2d 1066,
        ___________     ________________

        1072 (1985)  (quoting City Welding  & Mfg. Co.  v. Gidley-Eschenheimer
                              ________________________     ___________________

        Corp., 16 Mass. App. Ct. 372, 373, 451 N.E.2d 734, 735 (1983) (quoting
        _____

        Eastern  v. McDonnell  Douglas  Corp., 532  F.2d  957, 973  (5th  Cir.
        _______     _________________________

        1976))).   Under Massachusetts law,  the sufficiency of  the notice of

        revocation  must  be determined  "in light  of all  the circumstances,

        including the testimony of the parties,  the nature of the goods sold,

        and the course of dealing between the parties after the sale and prior

        to the  rejection."  Jeffco Fibres,  Inc., 13 Mass. App.  Ct. at 1030,
                             ____________________

        433 N.E.2d  at 921 (citation  omitted).   In order for  the notice  of

        revocation to be found sufficient, "[t]he seller must be able to infer

        . . .  that an identified  buyer is asserting  legal rights."   Delano
                                         __ _________  _____ ______     ______

                                          4

Growers'  Cooperative Winery,  393 Mass.  at 675,  473 N.E.2d  at 1072
        ____________________________

        (interpreting  notice  requirement  under      2-607(3)(a))  (emphasis

        added).  "Although notice need not  be in any particular form, it must

        do  more than  inform the  seller of  the defects  and of  the buyer's

        dissatisfaction; the notice must inform the seller that the buyer does

        not want the goods and does not desire to  retain them."  In re G.S.F.
                                                                  ____________

        Corp.,  6 B.R. 894, 897 (Bankr. D. Mass. 1980) (interpreting Massachu-
        _____

        setts law).  The  buyer bears the burden of  establishing the adequacy

        of its revocation.  Jeffco,  13 Mass. App. Ct. at 1030,  433 N.E.2d at
                            ______

        921 (considering adequacy  of notice  of revocation  of acceptance  of

        goods).

            Appellant attempts to  establish the sufficiency of its notice  of

        revocation,  as a  matter of law,  through reliance  on two  pieces of

        evidence.  First, appellant points to the testimony of James Williams,

        one of its own employees, to  the effect that he had several conversa-

        tions with  Roger Gold,  Luson's national  sales manager, relating  to

        appellant's alleged desire to return the machine.   Williams testified

        that he told Gold that   

            Mr.  Cois [President of Pro-Cut had] had it with the machine.
            He did not  want to see another repairman.   He wanted to get
            rid of  the machine.   Please  give the  man his  money back.
            We'll be more than happy to give your machine back. (emphasis
            _____ __ ____ ____ _____ __ ____ ____ _______ ____
            added).

        Mr. Gold  denied that he had  any discussions with  Mr. Williams about

        returning the machine.

5

Second,  appellant points to  its letter  to Luson  dated July 19,

        1989,  which recounts the  problems experienced with  the machine, and

        states:

            It  is our suggestion that  in order to  keep everyone happy,
                       __________
            and I  think the customer has  a very good case,  in that the
            machine has been  nothing but trouble, we  return his deposit
            and  ship the  machine back to  you where it  can be properly
            repaired  and sold  to  another customer  once the  necessary
            machine and control repairs are made. (emphasis added).*

        On  the  other hand,  the  evidence  revealed that  appellant  neither

        recovered  the machine from Pro-Cut  nor arranged for  its shipment to

        Luson.  Instead, the  machine remained in Pro-Cut's possession  at the

        time of trial, some two years after the July 19, 1989 letter.

            Even  if the  jury  had chosen  to credit  this  evidence  at face

        value, but  see Hendricks & Assoc.,  Inc., 923 F.2d at  214, the Gold-
               ___  ___ _________________________

        Williams conversations  and the July 19  letter, alone or  in combina-

        tion, did  not establish, as a  matter of law, a  sufficient notice of

        revocation  of the  acceptance of  the  machine.   Independently, each

        piece of evidence merely evinces  a suggestion    even a  readiness   
                                            __________

        that  appellant return  the  machine  to  Luson; in  combination,  the

        evidence  represents  something substantially  more  equivocal than  a

        clear statement of appellant's determination not to retain  the goods,

        see In re G.S.F. Corp., 6 B.R. at 897, or of its intention  to "assert
        ___ __________________

____________________

        *Appellant  makes reference also to a letter it received from Pro-Cut,
        *Appellant  makes reference also to a letter it received from Pro-Cut,
        dated  July 27, 1989, demanding the return of the deposit Pro-Cut made
        dated  July 27, 1989, demanding the return of the deposit Pro-Cut made
        with  appellant  and indicating  that Pro-Cut  would then  "return the
        with  appellant  and indicating  that Pro-Cut  would then  "return the
        machine to [appellant]."   As the  letter evinces no intention  on the
        machine to [appellant]."   As the  letter evinces no intention  on the
        part  of Pro-Cut or  appellant to return  the machine to  Luson, it is
        part  of Pro-Cut or  appellant to return  the machine to  Luson, it is
        inapposite to the present issue.
        inapposite to the present issue.

                                          6

[its]  legal  rights" to  revoke its  acceptance, see  Delano Growers'
                                                          ___  _______________

        Cooperative Winery, 393 Mass. at 675, 473 N.E.2d at 1072.  We conclude
        __________________

        that a jury  reasonably could find that  the notice of  revocation was

        insufficient.

B.  New Trial
        B.  New Trial
            _________

A motion for a  new jury trial enlists the sound discretion of the

        district court.   Hendricks &  Assoc., Inc., 923  F.2d at 217  (citing
                          _________________________

        Conway, 825 F.2d  at 598).  "[A] trial judge  cannot displace a jury's
        ______

        verdict merely because  [s]he disagrees  with it or  would have  found

        otherwise in a bench trial,"  Milone v. Moceri Family, Inc.,  847 F.2d
                                      ______    ___________________

        35, 37 (1st  Cir. 1988), or because "a contrary  verdict may have been

        equally     or  even  more easily      supportable" on  the  evidence,

        Freeman v. Package Machinery Co., 865 F.2d 1331, 1333 (1st Cir. 1988).
        _______    _____________________

        "Rather, it must appear that the verdict  is 'against the clear weight

        of the evidence.'"  Hendricks & Assoc., Inc., 923 F.2d at 217 (quoting
                            ________________________

        Coffran v. Hitchcock  Clinic, Inc.,  683 F.2d 5,  6 (1st Cir.),  cert.
        _______    _______________________                               ____

        denied,  459 U.S. 1087  (1982)).  Otherwise  put, it  must appear that
        ______

        there has been a "manifest miscarriage of justice."  Freeman, 865 F.2d
                                                             _______

        at 1334 (citing cases).

            In light of  the evidence  we have recounted,  we cannot say  that

        the verdict represents a  miscarriage of justice.  Appellant  bore the

        burden  of establishing that the notice of revocation was adequate and

        timely.  The only evidence it offered as to the adequacy of the notice

        of  revocation indicated  that  it had  suggested  the return  of  the
                                                _________

                                          7

machine.  Even if  appellant's evidence would have supported  a favor-

        able verdict, a reasonable  juror could find that the  putative notice

        of revocation was  equivocal.  Thus, the  verdict was not  "so clearly

        against the weight of the evidence as to amount to  a manifest miscar-

        riage of justice."   Id.  "The  mere fact that a  contrary verdict may
                             ___

        have  been equally    or even more  easily    supportable furnishes no

        cognizable  ground for  granting a new  trial.   If the  weight of the

        evidence is not grotesquely lopsided, it is irrelevant that the judge,

        were [s]he  sitting jury-waived,  would likely  have  found the  other

        way."   Freeman, 865 F.2d  at 1333-34.  The  trial court did not abuse
                _______

        its discretion in denying the motion for new trial.

C.  Adequacy of Jury Instructions
        C.  Adequacy of Jury Instructions
            _____________________________

Appellant claims  that the district court  failed to instruct  the

        jury that the  manner and timeliness  of the  notice of revocation  of

        acceptance must be determined in light of all the circumstances in the

        case, see Jeffco Fibres, 13 Mass. App. Ct. at 1030,  433 N.E.2d at 921
              ___ _____________

        (adequacy  of revocation);  Fortin v.  Ox-Bow Marina, Inc.,  408 Mass.
                                    ______     ___________________

        310,  315, 557 N.E.2d 1157,  1161 (1990) (timeliness),  by refusing to

        give the  more  expansive instructions  requested  by appellant.    In

        particular, appellant  requested that the  jury be instructed  that it

        "may  consider what the parties  intended and what  they understood on

        the basis of conversations, documents, et cetera."

            Appellant  was entitled  to a  proper jury  instruction, one which

        outlined the  controlling law  and the decisional  standards governing

                                          8

the finders  of the facts, but  not to an instruction  phrased in "the

        precise language urged  by [appellant]."   See Joia  v. Jo-Ja  Service
                                                   ___ ____     ______________

        Corp., 817 F.2d  908, 912 (1st Cir. 1987) ("trial judge enjoys consid-
        _____

        erable  discretion in the choice  of idiom."), cert.  denied, 484 U.S.
                                                       ____   ______

        1008(1988); PutnamResources v.Pateman, 958F.2d 448,462 (1stCir. 1992).
                    _______________   _______

            Immediately  after  instructing  the  jury  on  the  adequacy  and

        timeliness  of the notice of  revocation, the district court explained

        as follows:

            You need to decide how each of .  . . these rules apply [sic]
            to this case.   I suggest you should review the  evidence, in
            particular,  what,  if anything,  did  anybody  on behalf  of
            [appellant]  say orally or in writing  about the goods, about
            sending it back, or about not wanting them or about returning
            them or about anything  having to do with the machine in this
            respect.   Then decide [whether  there was proof  of adequate
            and timely notice].

        The court instructed  the jury  to review the  evidence, with  "parti-

        cular"  (but not  necessarily exclusive)  attention to  what appellant

        stated,  orally  or in  writing, about  "anything  having to  do" with

        "sending  [the machine] back, or about wanting [it] or about returning

        [it]."   The instruction sufficiently  informed the jury  of its fact-

        finding  responsibilities relating  to  the adequacy  of the  putative

        notice  of revocation in accordance  with the gist  of the instruction

        requested  by appellant.  Moreover, elsewhere in its charge, the court

        instructed  the  jury to  determine the  facts  from all  the credible

        evidence in the case, including all the exhibits and all the testimony

        admitted by the court.  The court acted well within  its discretion in

        determining  that any more  detailed reference to  the particular evi-

9

dence the jury  was to consider appropriately should be  left to argu-

        ment by counsel.

            Affirmed.
            ________

10