Sudbury v. Penn Worsted Co.

HOUGH, Circuit Judge (after stating the facts as above). The assignments of error rest on refusal of request to submit to the jury the question whether there was a sale by sample: if there was, whether the deliveries corresponded thereto; and, if there was not, whether the goods delivered conformed to the “warranty, if any.” [1] Whether so general an issue or series of issues could arise under the pleadings may well he doubted, but the motion amounted to an abandonment of the second counterclaim, and an admission that it was Sudbury’s act or neglect, and not plaintiff’s, that stopped deliveries. Thus the question here is whether the sale was so clearly shown to have been by sample, and the goods so plainly proved to correspond thereto, that the court was justified in directing a verdict. [2] The legal rule is familiar; a verdict should be directed when, if rendered the other way, the court should set it aside (Patton v. Railway, 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361), though it is also true that, if there be evidence to support the issue tendered by a party, it is the right of the jury to pass on it, whether it he strong or weak (Hickman v. Jones, 9 Wall. 201, 19 L. Ed. 551). The distinction thus indicated between the rule of no evidence, and that of weight of evidence, when the scintilla of evidence is discarded, is not always easy to make; but the rule is plain. It is unprofitable to* discuss evidence in detail; facts are not precedents, though they create them. [3] Not only was it assumed by both parties throughout the trial that the sale was by sample, but defendant below produced it, and there was no evidence at all that the yarn did not equal sample. Neither was there any evidence that plaintiff below ever agreed to produce yarn suitable for knitting, much less knitting army gloves, which was what Sudbury wanted it for. It was doubtless true that what plaintiff furnished was poor stuff for knitting; but the Penn Company had never made knitting yarn, war necessities created a greatly increased demand for it, and defendant below (who had a government contract for gloves) sought material wherever he could get it. Plaintiff below told him it knew not the requirements for knitting yam, but showed a sample of what it could make at the price offered. Sudbury took his chance, and it did not turn out well, but that affords no legal excuse for not paying for what corresponded to sample. Judgment affirmed, with costs.