Luson v. Fabricating
U.S. Court of Appeals for the First Circuit
Luson v. Fabricating
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.
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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]
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Before
Before
Breyer, Chief Circuit Judge,
Breyer, Chief Circuit Judge,
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Cyr, Circuit Judge,
Cyr, Circuit Judge,
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and Stahl*, District Judge.
and Stahl*, District Judge.
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Richard C. Van Nostrand with whom Mirick, O'Connell, DeMallie &
Richard C. Van Nostrand with whom Mirick, O'Connell, DeMallie &
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Lougee was on brief for appellant.
Lougee was on brief for appellant.
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Robert E. Sutton with whom Sutton & Kelly was on brief for
Robert E. Sutton with whom Sutton & Kelly was on brief for
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appellee.
appellee.
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*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.
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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
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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
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A. Judgment n.o.v.
A. Judgment n.o.v.
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Judgment n.o.v. is unwarranted unless the evidence "'could lead a
reasonable person to only one conclusion,'" Hendricks & Assoc., Inc.
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v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir. 1991) (quoting Conway v.
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Electro Switch Corp., 825 F.2d 593, 598 (1st Cir. 1987)); "namely,
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that the moving party was entitled to judgment," id.; see Fed. R. Civ.
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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 &
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Assoc., Inc., 923 F.2d at 214 (citing cases) (quoting Chedd-Angier
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Production Co. v. Omni Publications Int'l, Ltd., 756 F.2d 930, 934
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(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).
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The denial of a motion for judgment n.o.v. is reviewed under "the same
stringent decisional standards that control the district court." Id.
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(citing cases). Appellant bore the burden of proving that its notice
3
of revocation was adequate and timely. See Jeffco Fibres, Inc. v.
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Dario Diesel Service, Inc., 13 Mass. App. Ct. 1029, 1030, 433 N.E.2d
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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
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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-
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tive Winery v. Supreme Wine Co., 393 Mass. 666, 675, 473 N.E.2d 1066,
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1072 (1985) (quoting City Welding & Mfg. Co. v. Gidley-Eschenheimer
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Corp., 16 Mass. App. Ct. 372, 373, 451 N.E.2d 734, 735 (1983) (quoting
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Eastern v. McDonnell Douglas Corp., 532 F.2d 957, 973 (5th Cir.
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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,
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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
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4
Growers' Cooperative Winery, 393 Mass. at 675, 473 N.E.2d at 1072
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(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.
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Corp., 6 B.R. 894, 897 (Bankr. D. Mass. 1980) (interpreting Massachu-
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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
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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
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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,
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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-
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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
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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
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*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'
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Cooperative Winery, 393 Mass. at 675, 473 N.E.2d at 1072. We conclude
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that a jury reasonably could find that the notice of revocation was
insufficient.
B. New Trial
B. New Trial
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A motion for a new jury trial enlists the sound discretion of the
district court. Hendricks & Assoc., Inc., 923 F.2d at 217 (citing
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Conway, 825 F.2d at 598). "[A] trial judge cannot displace a jury's
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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
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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).
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"Rather, it must appear that the verdict is 'against the clear weight
of the evidence.'" Hendricks & Assoc., Inc., 923 F.2d at 217 (quoting
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Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.), cert.
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denied, 459 U.S. 1087 (1982)). Otherwise put, it must appear that
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there has been a "manifest miscarriage of justice." Freeman, 865 F.2d
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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
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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
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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
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its discretion in denying the motion for new trial.
C. Adequacy of Jury Instructions
C. Adequacy of Jury Instructions
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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
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(adequacy of revocation); Fortin v. Ox-Bow Marina, Inc., 408 Mass.
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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
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Corp., 817 F.2d 908, 912 (1st Cir. 1987) ("trial judge enjoys consid-
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erable discretion in the choice of idiom."), cert. denied, 484 U.S.
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1008(1988); PutnamResources v.Pateman, 958F.2d 448,462 (1stCir. 1992).
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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.
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Reference
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