Rosenberg v. Geo. A. Moore & Co.

This is an appeal by defendant from an order granting a new trial after verdict in its favor and against the plaintiffs on its cross-complaint. In February, March, and April, 1921, the parties hereto entered into nine separate contracts, wherein the plaintiffs agreed to buy and the defendant agreed to sell approximately 1000 tons of wiping rags for a price aggregating over $100,000. Both parties were doing business in San Francisco and the merchandise was, under the contracts, to be shipped from Antwerp, Belgium. A portion of the goods was received by the buyer and paid for. The balance was rejected. The complaint is in twelve counts, which fall within three general classifications. The first three are for damages for alleged breach of warranty, the fourth is for money had and received, and the following eight are for damages arising out of the alleged failure of the defendant to deliver to the plaintiffs wiping rags as agreed. The total amount prayed for in the complaint is $48,357.81. The defendant answered, admitting the execution of the contracts, but denying generally and specifically the alleged breach and failure to deliver. The defendant then set forth twelve causes of cross-complaint as to matters involved in the complaint. These several causes of cross-complaint fall within two general classes. Each of the first three is on a promissory note in the sum of $2,000 alleged to have been executed by the plaintiffs and delivered to the defendant. The remainder are for damages alleged to have been suffered by the defendant by reason of the alleged failure of the plaintiffs to receive and pay for wiping rags as agreed. The total amount sought to be recovered by the cross-complaint is $36,401.07. After trial before a jury a verdict was rendered in favor of the defendant and against the plaintiffs for the sum of

The plaintiffs specified nine grounds in their motion for a new trial, but three only are stressed upon the appeal, namely, (1) irregularities in the proceedings of the jury by which the plaintiffs were prevented from having a fair trial, (2) misconduct of the jury, and (3) insufficiency of the evidence to justify the verdict. The motion as to the first two was based on affidavits and as to the third was made on the minutes of the court. The moving affidavits were made by two jurors and related to remarks and conduct on the part of two other jurors during the course of the trial and while the jury was deliberating on the verdict. The first affidavit states that during the course of the trial and while the jurors were seated in the jury-box another juror said that the contracts between the parties “settled the case and he was satisfied that Rosenberg had not the right to inspect the rags, and shouldn’t recover,” and “that Rosenberg was trying to run out on his contract”; that the affiant heard another juror say that certain telegrams from the defendant to Alfred Heymann offered in evidence “did not mean anything, and were of no consequence,” and when plaintiffs’ attorney made a statement concerning a mistake in computation the second juror said: “That’s Yiddish addition”; that during the deliberations on the verdict, the juror whose remarks were first related said that “the case did not need to last five minutes so far as I was concerned; after the contracts were in, that settled the case for me”; that when the jury retired the two jurors whose conduct was criticised were the foremost champions of the defendant’s rights to recover and that one of them raised his voice in a loud and boisterous manner, “apparently attempting to coerce the jurors into accepting his views.” The affidavit of the other juror added nothing to the former and is open to the objection that the statements made by the affiant were hearsay. Counter-affidavits were filed on behalf of the defendant but the showing made by the moving affidavits was clearly insufficient to warrant the granting of the motion. [1] No fraud was charged and there was no showing that the verdict was reached by a resort to the determination of chance. In

The minutes of the court show the following: “It is ordered that said motion for a new trial be and the same is hereby granted upon all the grounds set forth in said motion, and particularly upon the ground that the evidence is insufficient to sustain the verdict.” Inasmuch as the court specified in its order that the motion was granted upon the ground that the evidence was insufficient to sustain the verdict, the only question remaining concerns the correctness of the order made on that ground. It has therefore become necessary to examine the record in order to determine what evidence, if any, would support the ruling of the court, having in mind the rules governing such examination and determination. These rules are well established. [2] In Gordon v. Roberts, 162 Cal. 506 [ 123 Pac. 288 ], it was said: “This court has frequently commented upon -the wide extent of the discretion of the trial court in granting or denying a new trial for insufficiency of evidence. ‘Its action,’ as was said in Domico v. Casassa, 101 Cal. 411 [ 35 Pac. 1024 ], ‘is conclusive upon this court, unless there has been an abuse of discretion. ’ And, if there is a substantial conflict in the evidence, the trial court will not be deemed to have abused its discretion when it has determined that the verdict or the finding is against the weight of the evidence, and that there should be a new trial. ‘When the evidence is conflicting, the trial court is authorized to review it, and if, in its opinion, the verdict is against the weight of evidence, it is its duty to grant a new trial. ’ ” (Merralls v. Southern Pac. Co., 182 Cal. 19 [ 186 Pac. 778 ]; Biaggi v. Ramont, 189 Cal. 675 [ 209 Pac. 892 ]; Soto v. Globe Grain & Milling Co., 55 Cal. App. 532 [ 203 Pac. 830 ].) [3] In considering the question of the correctness of the order the presumption on appeal is in favor of the order and against the verdict (Marr v. Whistler, 49 Cal. App. 364 [ 193 Pac. 600 ]; Roberts

It would be impracticable and unnecessary to undertake an extensive review of the evidence which is contained in a voluminous record. Only those portions, either controverted or admitted, which tend to support the order appealed from will be adverted to.

The plaintiffs were manufacturers and dealers in wiping rags in San Francisco and the defendant was engaged, at least in part, in the importing business in said city. A wiping rag is described in the evidence as a soft cloth of cotton or wool, or both cotton and wool, having absorbent qualities which make it useful in wiping machinery of all kinds, printing-presses, windows, etc. It is made from cast-off articles of clothing and rejected fabrics usually gathered in the first intance by rag-pickers and cut sufficiently large to serve the purpose for which it is intended. The negotiations which resulted in the contracts in question were carried on between Jos. Rosenberg, representing the plaintiffs, and A. Juell, representing the defendant. These men had been acquaintances for many years. The defendant had imported large quantities of. roofing rags from Europe. In February, 1921, Rosenberg suggested to Juell that inasmuch as the defendant was importing roofing rags it might also be able to import wiping rags. Acting upon the suggestion Juell cabled to European clients of his firm and in a few days reported to Rosenberg that he had prices from two different concerns, the price of one being considerably higher than the other. Neither Rosenberg nor Juell at that time knew anything about European wiping rags so they agreed to order a quantity from each concern and determine upon arrival which one furnished the better goods and which one was the more reliable concern, all as a basis for possible additional orders in the future. These two shipments were referred to in the evidence as the Heymann & Go. and the Van der Haege shipments, the former being the more expensive merchandise. Before these shipments arrived Juell told Rosenberg that because of the unsatisfactory conditions of exchange it would be advisable for him to order more wiping rags from Heymann & Co.,

The contracts were in similar form. They referred to the parties hereto as the seller and purchasers, that shipment should be by “-prompt steamer from Antwerp to San Francisco”; the quantity and the price were definitely stated and it was provided that payment should be “net cash as soon as documents arrive at San Francisco, i. e., prepaid steamer bill of lading Antwerp to San Francisco, consular invoice, weight list and bill of health certificate.” The descriptions of the merchandise were as follows: Contract number 249, “dark and light wipers”; contract number 250, “light, dark, fine and light print wipers”; contract number 256, “washed and trimmed dark and light wipers in bales”; contract number 259, “washed and trimmed heavy dark cottons and linsey wipers in bales”; contracts numbers 260 and 266, “washed and trimmed white wipers in bales”; contract number 264, “washed and trimmed light wipers in bales”; contract number 265, “dark (heavy and light mixed) washed and trimmed wipers in bales”; and contract number 267, “ordinary light unwashed wipers in bales. ’ ’

After the examination of the first shipment and after contracts had been executed for the additional tonnage, but

It is the contention of the defendant that the contracts provided for a definitely described article of merchandise and contained no warranty of quality; that the parties contracted with respect to European wiping rags and that there is no evidence in the record that the wipers delivered and tendered to the plaintiff did not answer the description of European wiping rags. It is urged with great insistence that the plaintiffs having purchased European wiping rags were only entitled to and were bound to accept “wiping rags of the grade, kind, and quality and standard produced in

[4] It may be assumed, as defendant contends, that when the plaintiffs contracted to buy wiping rags of a certain designated description to be shipped from Antwerp, the contract was performed by the defendant when it furnished wiping rags answering the description specified in the contract according to the standards of the Antwerp market, but from this assumption it would not follow that the contracts would be performed by the furnishing of merchandise which was something other than wiping rags. All of the contracts provided for the purchase and sale of wiping rags and such was the clear intention of the parties. Whether the rags shipped by Heymann & Co. were wiping rags according to the European standard or according to the California standard is not determinative. Whether they were wiping rags at all or what proportion thereof was rags other than wiping rags was the issue before the court and jury. This was especially true with reference to the first three causes of action set forth in the complaint. Therein the plaintiffs allege the payment of sums aggregating $39,-623.09 in accordance with the contracts and for which payment wiping rags were thereafter to be delivered; that the rags were delivered but that a large proportion thereof did not constitute wiping rags but were shoddy rags. In these

[6] It is contended by the plaintiffs in support of their claim for reimbursement of moneys paid for rags other than wiping rags that it was the intention of the parties at the time of the execution of said contracts subsequent to the trial shipment that they would not be required to pay for any rags that were not wiping rags. It is urged that such intention is manifest by a practical construction placed upon the contracts covering the trial shipments whereby the plain

The defendant contends that the transaction wherein the first refund was made concerned a contract not involved in this action. Plaintiffs reply that the contract there involved was identical in form with those here involved and the statement is not denied by the defendant. We think the conduct of the parties under such former identical contract, and when their relations were harmonious, was competent evidence of the intention of the parties under the subsequent contracts, and there is much force in the suggestion of plaintiffs that the court should give much weight to that practical construction placed upon the subsequent contracts by the parties themselves. The case of Mitau v. Roddan, 149 Cal. 1 [ 6 L. R. A. (N. S.) 275 , 84 Pac. 145 ], fully supports that contention. [7] Still stronger evidence in support of the plaintiffs’ position is that found in the letters exchanged between the parties under date of July 11 and 12, 1921, above quoted. Those letters were written after a controversy arose as to the scope of the contracts and constituted a definite proposal on the part of the plaintiffs that the rags should be sorted, and that the rags which were not wiping rags should be rejected and an acceptance of said proposal

On July 13, 1921, Juell telegraphed Heymann en route eastward as follows: “It is very evident that Rosenberg intends making large rejections and frankly we feel that he is more or less justified. We on our part cannot undertake responsibility of adjusting this claim and must for our protection reject shipment. Have cabled your office to this effect and to withhold further shipment pending settlement. Duval Moore suggests it is imperative for you to return here immediately and settle matter as it is assuming much more serious proportions than anticipated when talking with you. From further inspection on the dock this morning there is no question that the wipers are not properly trimmed and there is a considerable portion of the bales which contain rags not suitable for wipers, especially in the darte and heavy light cottons and linsey wipers. Emphatically urge that you do not underestimate the seriousness of the situation and do not hesitate to come back to adjust matter as we feel that the claim can be minimized by settling now rather than later.” Two days later the defendant telegraphed Heymann at Buffalo as follows: “Answering your night letter from train, our opinion has not changed as we were convinced Rosenberg had a just claim. The only change was that when you left hurriedly we did not realize serious proportions it might assume. Our view was changed by a more thorough inspection of goods ex ‘ George Washington ’ and ‘ Transvaal, ’ and we could see that there was quite a proportion which could reasonably be objected to. However, there is no need of arguing pro and con as you agree to stand behind us in allowance we will have to make. We are arranging to have competent surveyor inspect shipment and experienced man supervise sorting. Rosenberg has rejected entire shipment, and we have arranged more particular inspection Saturday and will wire you result.” Under date of July 19, 1921, the defendant telegraphed Heymann at New York City as follows:

We therefore have in the evidence in support of the ruling of the court numerous contracts, all providing for the purchase and sale of wiping rags; a practical construction placed thereon by the parties that the plaintiffs would not be;

[8] As an indication of the views of the trial court on the question of the proper construction of the contracts the jury was instructed: “That it was the duty of the defendant to deliver to the plaintiffs rags answering the description named in the contract, to wit, wipers, i. e., rags suitable for wiping purposes”; also, “that it is generally the accepted rule of law that on a sale of personal property as being of a particular kind or description stated as a fact in the contract, there is an implied agreement that the article sold is of that kind or description, and the description is thereby warranted. . . . You are instructed that under the terms of said contracts it was the duty of the defendant to deliver to plaintiff rags suitable to the purposes for which they' were sold, i. e., rags such as described in the contracts must be suitable for wiping purposes.” The defendant admits and declares that the jury was properly instructed. The weight to be given the evidence was in the first instance for the jury to determine. In the second instance it was to be considered and determined by the trial court on the motion for a new trial. In view of the admittedly proper instruction of the jury by the trial court and in view of the evidence, including the many declarations and admissions of the defendant above referred to, it cannot

The order is affirmed.

Richards, J., Lawlor, J., Lennon, J., Waste, J., Seawell, J., . and Myers, C. J., concurred.