Opinion
No. 208.
January 23, 1945.
Appeal from the District Court of the United States for the Eastern District of New York.
Action by Golden Eagle Farm Products, Inc., against Approved Dehydrating Company, Inc., to recover the contract price for liquid whole eggs sold to defendant, wherein defendant filed a counterclaim for breach of warranty of quality. From a judgment for plaintiff, defendant appeals.
Affirmed.
Before CHASE, HUTCHESON, and FRANK, Circuit Judges.
J. Bertram Wegman, of New York City (Emanuel H. Reichart, of New York City, of counsel), for appellant.
Underhill Rubinger, of New York City (Maurice Rubinger and Robert Jacobs, both of New York City, of counsel), for appellee.
The plaintiff brought suit in the state court to recover $5,700 as the contract price for liquid whole egg deliveries to the defendant. Defendant had the case removed to the District Court on the basis of diversity of citizenship, and there asserted a claim for breach of warranty as to the quality of the eggs and entered a counterclaim for damages as a result thereof. The plaintiff had contracted to supply the defendant with liquid whole eggs. The defendant dehydrated these into powdered eggs for sale to the United States. The defendant's contract with the government called for powdered eggs of a certain moisture, solubility and fat content. When the defendant tendered to the government the powdered eggs made from the eggs bought from the plaintiff, they were rejected for deficiency in fat content. The Food and Drug Administration condemned the lot as mislabeled and adulterated and a libel of information was filed against the merchandise and a decree of forfeiture and condemnation was entered in the District Court. The defendant reclaimed them and was compelled to sell the product at a price lower than that called for in its contract with the government.
At the trial, before a jury, the defendant's witnesses testified that samples of the plaintiff's eggs, taken before they entered the defendant's plant, were deficient in fat content and had been adulterated by the addition of some sugar product. Plaintiff's witnesses testified that the sugar product could not have been added to the liquid eggs prior to the time that they were passed through the defendant's spray. There was also testimony that, as to the third shipment of liquid eggs, the defendant's own chemist made a test and found that the fat content was satisfactory.
At the trial the defendant introduced a diagram showing the plans of a dehydrating plant. At the time the court pointed out that there were several methods of dehydration and that the diagram did not indicate the defendant's plant. Plaintiff also demonstrated, for the purpose of showing that the introduction of a reducing sugar would have discolored the eggs and have made the adulteration readily evident, that the addition of nulomoline (a sugar product) discolored the eggs.
At the close of the case the defendant moved for a directed verdict. The motion was denied. The jury brought a verdict for the plaintiff for $5,700. Interest and costs were added. Thereafter the defendant moved to set aside the verdict and for judgment notwithstanding the verdict and in the alternative for a new trial. These motions were denied.
Appellee contends that, as on the issue of whether the eggs had been adulterated before receipt by the defendant, there was solely the uncontradicted testimony of its witnesses, we must apply the rule that, in such circumstances, there is no question which may properly be submitted to the jury. We need not discuss that rule and its many exceptions. For here there is ample testimony which, at least in an indirect manner, contradicts what defendant's witnesses said. It was for the jury to determine whether the assertions of the defendant's witnesses that the sugar was added before the defendant received the eggs, or the plaintiff's witnesses that the sugar could not have been added before the defendant processed them, was true.
See 8 A.L.R. 796. Cf. Pariso v. Towse, 2 Cir., 45 F.2d 962, 965; Fire Association of Phila. v. Mechlowitz, 2 Cir., 266 F. 322, 325; Sigua Iron Co. v. Greene, 2 Cir., 88 F. 207, 212. The rule has been rejected in some jurisdictions. As to the exceptions, see, e.g., Andrew Jergens Co. v. Conner, 2 Cir., 125 F.2d 686, 689; Mutual Life Ins. Co. of N.Y. v. Sargent, 5 Cir., 51 F.2d 4, 6; Sonnentheil v. Moerlin Brewing Co., 172 U.S. 401, 408, 19 S. Ct. 233, 43 L.Ed. 492; Chesapeake O.R. Co. v. Martin, 283 U.S. 209, 216, 51 S. Ct. 453, 75 L.Ed. 983; The Dauntless, 9 Cir., 129 F. 715, 720, 721; Grand Trunk Ry. Co. v. Cobleigh, 2 Cir., 78 F. 784, 786; 72 A.L.R. 27.
It is perhaps arguable that the federal courts do not apply this rule when the trier of the facts is a judge, referee or master. See, e.g., Brenner v. Gaunce, 9 Cir., 28 F.2d 606, 607; Andrew Jergens Co. v. Conner, 6 Cir., 125 F.2d 686, 689.
A somewhat cynical commentator has said: "As applied to uncontradicted testimony there are two broad rules: one, that the uncontradicted testimony of a witness is for the jury; the other, that the jury may not arbitrarily reject the uncontradicted testimony of a witness; and the courts apply one or the other as they mean to leave the matter to the jury, or to interfere. In the statement of these two rules the courts sometimes give preference to the power of the jury, and sometimes, on the other hand, require the jury to accept uncontradicted testimony unless there is some apparent reason against it." 8 A.L.R. 796, 797.
There was no error in admitting the chart showing the general layout of a spray drying plant. The chart was used solely for the purpose of explaining the evidence, and the defendant introduced evidence showing that the plant in the diagram differed from its own, primarily in that the defendant used a horizontal spray and the diagram indicated a vertical spray. The admission of the diagram was clearly within the discretion of the court. And the following statement by the court cleared up any ambiguity as to its use: "The Court: It is understood that this diagram in no way indicates the plant, dehydration plant of the defendant * * * But it does indicate the general principles for the benefit of the jury."
Nor was there error in permitting the demonstration indicating that nulomoline changed the color of the liquid eggs. It was made clear that the plaintiff was not attempting to prove that nulomoline was the sugar product used to adulterate the eggs, but was merely using the demonstration to show that a sugar product would change the color. This, too, was a matter within the trial court's discretion.
Affirmed.