Vom Cleff v. Magone

57 F. 198, 1893 U.S. App. LEXIS 2765

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: July 24, 1893
• Status: Published

Opinion

LACOMBE, Circuit Judge.

I have reached the conclusion that there should be a new trial of this case. The jury were correctly instructed as to their duty in weighing the testimony touching the commercial meaning, if any, of the phrase “steel strips,” and there was sufficient evidence as to that to sustain a verdict against the plaintiff. Unforfunaiely, however, the charge was so framed as to warrant the inference that they might also determine what is the ordinary meaning of the phrase in common speech. Bach meaning, however, is a question of law, and is for the court. It is Impossible to tell whether the jury found for the defendant because they were satisfied that the phrase had a trade meaning which excluded goods like these, or because they thought that the words “steel strips,” as used in common speech, did not include them. If the plaintiff be sound in the contention that his importation is within ihe dictionary meaning of the words used, he probably could not avail of Ms exception upon appeal from the verdict as it stands, as the appellate court would be warranted in assuming that the jury decided against him as to the trade meaning.

Verdict is set aside, and new trial ordered.