
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, DeMallie &            Richard  C. Van  Nostrand with whom Mirick,  O'Connell, DeMallie &            _________________________           ______________________________        Lougee was on brief for appellant.        Lougee was on brief for appellant.        ______            Robert  E. Sutton  with  whom Sutton  &  Kelly was  on  brief  for            Robert  E. Sutton  with  whom Sutton  &  Kelly was  on  brief  for            _________________             ________________        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  Production            CYR,   Circuit  Judge.                   ______________        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                                      __________            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                                      __________        A.  Judgment n.o.v.        A.  Judgment n.o.v.            _______________            Judgment n.o.v.  is unwarranted unless the evidence "'could lead a        reasonable person to only  one conclusion,'" Hendricks & Assoc.,  Inc.                                                     _________________________        v. Daewoo Corp., 923 F.2d 209, 214 (1st Cir. 1991)  (quoting Conway v.           ____________                                              ______        Electro Switch Corp.,  825 F.2d  593, 598 (1st  Cir. 1987));  "namely,        ____________________        that the moving party was entitled to judgment," id.; see Fed. R. Civ.                                                         ___  ___        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 &                                                                   ___________        Assoc.,  Inc., 923 F.2d  at 214  (citing cases)  (quoting Chedd-Angier        _____________                                             ____________        Production Co. v.  Omni Publications  Int'l, Ltd., 756  F.2d 930,  934        ______________     ______________________________        (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).                                 ___          ____________        The denial of a motion for judgment n.o.v. is reviewed under "the same        stringent decisional standards that control the district court."   Id.                                                                           ___        (citing cases).   Appellant bore the burden of proving that its notice                                          3        of revocation  was adequate and  timely.   See Jeffco Fibres,  Inc. v.                                                   ___ ____________________        Dario Diesel  Service, Inc., 13 Mass. App.  Ct. 1029, 1030, 433 N.E.2d        ___________________________        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                                                               ___ ______        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-                                                      ________________________        tive Winery  v. Supreme Wine Co., 393 Mass. 666, 675, 473 N.E.2d 1066,        ___________     ________________        1072 (1985)  (quoting City Welding  & Mfg. Co.  v. Gidley-Eschenheimer                              ________________________     ___________________        Corp., 16 Mass. App. Ct. 372, 373, 451 N.E.2d 734, 735 (1983) (quoting        _____        Eastern  v. McDonnell  Douglas  Corp., 532  F.2d  957, 973  (5th  Cir.        _______     _________________________        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,                             ____________________        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                                         __ _________  _____ ______     ______                                          4        Growers'  Cooperative Winery,  393 Mass.  at 675,  473 N.E.2d  at 1072        ____________________________        (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.                                                                  ____________        Corp.,  6 B.R. 894, 897 (Bankr. D. Mass. 1980) (interpreting Massachu-        _____        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                            ______        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            _____ __ ____ ____ _____ __ ____ ____ _______ ____            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,                       __________            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-               ___  ___ _________________________        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                                               __________        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        ___ __________________                                    ____________________        *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'                                                          ___  _______________        Cooperative Winery, 393 Mass. at 675, 473 N.E.2d at 1072.  We conclude        __________________        that a jury  reasonably could find that  the notice of  revocation was        insufficient.        B.  New Trial        B.  New Trial            _________            A motion for a  new jury trial enlists the sound discretion of the        district court.   Hendricks &  Assoc., Inc., 923  F.2d at 217  (citing                          _________________________        Conway, 825 F.2d  at 598).  "[A] trial judge  cannot displace a jury's        ______        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                                      ______    ___________________        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).        _______    _____________________        "Rather, it must appear that the verdict  is 'against the clear weight        of the evidence.'"  Hendricks & Assoc., Inc., 923 F.2d at 217 (quoting                            ________________________        Coffran v. Hitchcock  Clinic, Inc.,  683 F.2d 5,  6 (1st Cir.),  cert.        _______    _______________________                               ____        denied,  459 U.S. 1087  (1982)).  Otherwise  put, it  must appear that        ______        there has been a "manifest miscarriage of justice."  Freeman, 865 F.2d                                                             _______        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                                                _________                                          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                             ___        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                _______        its discretion in denying the motion for new trial.        C.  Adequacy of Jury Instructions        C.  Adequacy of Jury Instructions            _____________________________            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              ___ _____________        (adequacy  of revocation);  Fortin v.  Ox-Bow Marina, Inc.,  408 Mass.                                    ______     ___________________        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                                                   ___ ____     ______________        Corp., 817 F.2d  908, 912 (1st Cir. 1987) ("trial judge enjoys consid-        _____        erable  discretion in the choice  of idiom."), cert.  denied, 484 U.S.                                                       ____   ______        1008(1988); PutnamResources v.Pateman, 958F.2d 448,462 (1stCir. 1992).                    _______________   _______            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.            ________                                          10
