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, DeMalli

Richard C. Van Nostrand with whom Mirick, O'Connell, DeMalli
_________________________
___________________________
Lougee was on brief for appellant.
Lougee was on brief for appellant.
______
Robert E. Sutton with whom Sutton & Kelly was on brief
Robert E. Sutton with whom Sutton & Kelly was on brief
_________________
________________
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
CYR,
Circuit Judge.
______________
Machinery,

Inc. appeals a district court judgment entered in favor

plaintiff Luson
contract for

International Distributors, Inc. for

the sale of

court improperly

goods.

denied its

verdict, or for
jury.

Product

new trial,

Appellant claims

motion for judgment

and gave inadequate

breach of th

that the distr

notwithstanding

instructions to

We affirm.
I
I
BACKGROUND
BACKGROUND
__________

During the
appellant, for

latter part of 1988,

ultimate

machine known as a

sale to

Luson shipped

an end

large and

comp

vertical machining center which appellant

in t

sold and delivered to Pro-Cut Machine.

installment in accordance

user, a

on consignment

Appellant paid Luson the fi

with Luson's invoice.

Installation

equipment at Pro-Cut occurred in February of 1989.

of

Shortly thereaf

operational problems developed with the machine leading to a series

communications
March

between appellant

through July

1989.

The

and

Luson during

problems

the period

persisted despite

attempts by Luson to rectify them.

Finally, by letter

1989,

of its deposit

stated

Pro-Cut demanded the return

seve

dated July

from appellant

its willingness to return the machine to appellant.

Appell

credited
Luson.
October

Pro-Cut's
Luson brought
1989.

As

account, but

was never

its diversity action for breach

the parties

acceptance of the machine

were whether the

the machine

notice of

stipulated

returned

of contract

that revocation

was warranted, the only matters

revocation of acceptance

of

in disp

was timely

proper.
II
II
DISCUSSION
DISCUSSION
__________
A.
A.

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

is unwarranted unless the evidence "'could lea

reasonable person to only

one conclusion,'" Hendricks & Assoc., I

______________________

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

____________
Electro Switch Corp.,
____________________

825 F.2d

593, 598 (1st

(quoting Conway
______

Cir. 1987));

"name

that the moving party was entitled to judgment," id.; see Fed. R. C
___ ___
P. 50(b).

The trial court may not assess the

es, resolve conflicts

in testimony

credibility of witne

or weigh the

evidence, but

view all facts and reasonable inferences therefrom "'in the light m
favorable to the party for
Assoc., Inc., 923 F.2d
_____________
Production Co. v.
______________
(1st

Cir.

whom the jury held . . . .'"

at 214

(quoting Chedd-Ang
_________

Omni Publications Int'l, Ltd., 756

______________________________

1985)).

Thus viewed,

strongly and overwhelmingly in

jury

(citing cases)

could not have arrived

court must sustain it.

unless

Hendrick
________

F.2d 930,

the evidence

"point[s]

favor of the movant that

a reasona

at [the challenged

verdict]," the tr

Id. (quoting Chedd-Angier, 756 F.2d

___
____________

at 93

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

stringent decisional standards that control the district court."
(citing cases).

Appellant bore the burden of proving that its not

3

of revocation

was adequate and

timely.

See Jeffco Fibres, Inc.

___ ____________________

Dario Diesel Service, Inc., 13 Mass. App.

___________________________
918, 921
there

(1982) (buyer

was substantial

must prove when

evidence

to

Ct. 1029, 1030, 433 N.E

it revoked acceptance).

support

the jury

finding

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

court correctly denied the motion for judgment n.o.v.

See Conway,
___ ______

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

verdict).
A revocation of the acceptance of
Code

goods under Uniform

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

of it."

Mass. Gen. L.

ch. 106,

2-608(2).

Commerc

notifies the sel

"'[W]hether the not

requirement has been complied with is a question which is particula

within the

province of the [factfinder].'"

Delano Growers' Coope

_____________________

tive Winery
___________

v. Supreme Wine Co., 393 Mass. 666, 675, 473 N.E.2d 10

________________

1072 (1985)

(quoting City Welding & Mfg. Co.

________________________

v. Gidley-Eschenhei
________________

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

v. McDonnell Douglas Corp., 532

_________________________

1976))).

Under Massachusetts law,

revocation

must

be determined

F.2d

957, 973

the sufficiency of

"in light

including the testimony of the parties,

of all

(5th

the notice

the circumstanc

the nature of the goods so

and the course of dealing between the parties after the sale and pr
to the

rejection."

433 N.E.2d

Jeffco Fibres, Inc., 13 Mass. App.

____________________

at 921 (citation

omitted).

In order for

Ct. at 10
the notice

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

. . .

that an identified

buyer is asserting
__ _________

legal rights."
_____ ______

Del
___

Growers' Cooperative Winery,

____________________________
(interpreting
added).
do

notice

393 Mass.

requirement

under

"Although notice need not

more than

inform the

at 675,

473 N.E.2d

2-607(3)(a))

at 1

(empha

be in any particular form, it m

seller of

the defects

and of

the buye

dissatisfaction; the notice must inform the seller that the buyer d
not want the goods and does not desire to
Corp.,
_____

retain them."

In re G.S
_________

6 B.R. 894, 897 (Bankr. D. Mass. 1980) (interpreting Massac

setts law).

The

of its revocation.

buyer bears the burden of

Jeffco,
______

921 (considering adequacy

establishing the adequ

13 Mass. App. Ct. at 1030,

of notice

of revocation

433 N.E.2d

of acceptance

goods).
Appellant attempts to
revocation,
evidence.

as a

establish the sufficiency of its notice

matter of law,

through reliance

on two

pieces

First, appellant points to the testimony of James Willia

one of its own employees, to

tions with

Roger Gold,

the effect that he had several conver

Luson's national

sales manager, relating

appellant's alleged desire to return the machine.

Williams testif

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 ab

returning the machine.

Second,
1989,

appellant points to

which recounts the

its letter

to Luson

problems experienced with

dated July
the machine,

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,

recovered
Luson.

the

evidence

revealed that

the machine from Pro-Cut

Instead, the

appellant

nor arranged for

neit

its shipment

machine remained in Pro-Cut's possession

at

time of trial, some two years after the July 19, 1989 letter.
Even
value, but
___

if the

jury

revocation

and the July 19

not establish, as a
of the

appellant return

evidence

this

evidence

represents

the

the

machine

to

Independently, e
even a

Luson; in

something substantially

in combi

sufficient notice

machine.

a suggestion
__________

at f

214, the Go

letter, alone or

matter of law, a

acceptance of

piece of evidence merely evinces

that

to credit

see Hendricks & Assoc., Inc., 923 F.2d at

___ _________________________

Williams conversations
tion, did

had chosen

more

readiness

combination,

equivocal than

clear statement of appellant's determination not to retain

the goo

see In re G.S.F. Corp., 6 B.R. at 897, or of its intention

___ __________________

to "ass

____________________

*Appellant makes reference also to a letter it received from Pro-C

*Appellant makes reference also to a letter it received from Pro-C
dated July 27, 1989, demanding the return of the deposit Pro-Cut m
dated July 27, 1989, demanding the return of the deposit Pro-Cut m
with appellant and indicating that Pro-Cut would then "return
with appellant and indicating that Pro-Cut would then "return
machine to [appellant]."
As the letter evinces no intention on
machine to [appellant]."
As the letter evinces no intention on
part of Pro-Cut or appellant to return the machine to Luson, it
part of Pro-Cut or appellant to return the machine to Luson, it
inapposite to the present issue.
inapposite to the present issue.
6

[its]

legal

rights" to

revoke its

acceptance, see
___

Delano Growe
____________

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

__________________
that a jury

reasonably could find that

the notice of

We concl

revocation

insufficient.
B.
B.

New Trial
New Trial
_________
A motion for a

new jury trial enlists the sound discretion of

district court.

Hendricks & Assoc., Inc., 923

_________________________

Conway, 825 F.2d

______

at 598).

verdict merely because

[s]he disagrees

otherwise in a bench trial,"

35, 37 (1st
equally

"[A] trial judge

even

with it or

would have

Milone v. Moceri Family, Inc.,

______
___________________

more easily

(cit

cannot displace a jur

Cir. 1988), or because "a contrary

or

F.2d at 217

fo

847 F

verdict may have b

supportable" on

the

eviden

Freeman v. Package Machinery Co., 865 F.2d 1331, 1333 (1st Cir. 198
_______
_____________________
"Rather, it must appear that the verdict
of the evidence.'"
Coffran v. Hitchcock

is 'against the clear wei

Hendricks & Assoc., Inc., 923 F.2d at 217 (quot

________________________
Clinic, Inc.,

683 F.2d 5,

6 (1st Cir.),

ce

_______
denied,
______

_______________________
459 U.S. 1087

(1982)).

__
Otherwise

put, it

must appear t

there has been a "manifest miscarriage of justice."

Freeman, 865 F
_______

at 1334 (citing cases).

In light of

the evidence

the verdict represents a

burden

we cannot say

miscarriage of justice.

Appellant

bore

of establishing that the notice of revocation was adequate

timely.
of

we have recounted,

The only evidence it offered as to the adequacy of the not

revocation indicated

that

it had

suggested
_________

the return

of

machine.

Even if

appellant's evidence would have supported

able verdict, a reasonable

of revocation was

juror could find that the

equivocal.

Thus, the

riage of justice."
have

Id.
___

been equally

cognizable

ground for

"The

mere fact that a

or even more

easily

granting a new

putative not

verdict was not

against the weight of the evidence as to amount to

trial.

a fav

"so clea

a manifest misc
contrary verdict

supportable furnishes
If the

weight of

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

were [s]he
way."

sitting jury-waived,

Freeman, 865 F.2d

_______

would likely

at 1333-34.

The

have

found the

ot

trial court did not ab

its discretion in denying the motion for new trial.

C.
C.

Adequacy of Jury Instructions

Adequacy of Jury Instructions
_____________________________
Appellant claims

jury that the

that the district court

manner and timeliness

of the

failed to instruct
notice of revocation

acceptance must be determined in light of all the circumstances in

case, see Jeffco Fibres, 13 Mass. App. Ct. at 1030,
___ _____________
(adequacy
310,

of revocation);

315, 557 N.E.2d 1157,

give the

more

Ox-Bow Marina, Inc.,

___________________

1161 (1990) (timeliness),

expansive instructions

particular, appellant
"may

Fortin v.
______

433 N.E.2d at

requested

requested that the

consider what the parties

by refusing

by appellant.

jury be instructed

intended and what

408 Ma

that

they understood

the basis of conversations, documents, et cetera."

Appellant
outlined the

was entitled
controlling law

to a

proper jury

instruction, one wh

and the decisional

8

standards govern

the finders

of the facts, but

precise language urged

Corp., 817 F.2d
_____
erable

not to an instruction

by [appellant]."

See Joia
___ ____

phrased in "

v. Jo-Ja Serv
___________

908, 912 (1st Cir. 1987) ("trial judge enjoys cons

discretion in the choice

of idiom."), cert.
____

denied, 484 U
______

1008(1988); PutnamResources v.Pateman, 958F.2d 448,462 (1stCir. 199

_______________
_______
Immediately
timeliness

after

instructing

of the notice of

the

jury

on

the

adequacy

revocation, the district court explai

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
cular"

(but not

stated,

orally

"sending

the jury

to review the

necessarily exclusive)
or in

writing, about

evidence, with

attention to
"anything

"par

what appell

having to

do" w

[the machine] back, or about wanting [it] or about return

[it]."

The instruction sufficiently

finding

responsibilities relating

notice

of revocation in accordance

requested
instructed

by appellant.
the

jury to

informed the jury

to

the adequacy

with the gist

of its fa

of the

putat

of the instruct

Moreover, elsewhere in its charge, the co

determine the

facts

from all

the credi

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

admitted by the court.

determining

The court acted well within

that any more

detailed reference to

its discretion

the particular e

dence the jury

ment by counsel.
Affirmed.
________

was to consider appropriately should be

left to ar

10