Opinion
Decided November 4, 1936.
CASE, for deceit. Trial by jury and verdict for the defendant. The plaintiff excepted in connection with the argument for the defendant as follows:
I. "Mr. Green. The plaintiff . . . called Mr. Morse, one of the parties-defendant, . . . so that the plaintiff is bound by all the statements that have been made by any of his witnesses.
Mr. Dolan. Exception.
The Court. Well, I don't think that is the law. He isn't bound. It is a question for the jury.
Mr. Green. The plaintiff, by placing the witness upon the stand, tests his credibility, having called him as a witness.
The Court. No, it is for the jury to say what witnesses are telling the truth, and how accurate they are, and their means of knowledge.
Mr. Green. I admit that, Your Honor, but the plaintiff having called them, I think —
The Court. All right; proceed.
Mr. Green. Well, I withdraw that.
Mr. Dolan. My exception is noted?
The Court. Your exception is noted."
II. The plaintiff had sold automobiles as a direct dealer under a contract with the manufacturer. The contract contained a clause for its termination on short notice by the manufacturer. The action was based on a charge of misrepresentations made during the negotiations for an arrangement by which the defendant became the direct dealer in the plaintiff's place, the plaintiff becoming an associate dealer under the defendant. During the negotiations representatives of the manufacturer were present and they advised the plaintiff to make the change. The change involved a cancellation of the contract between the plaintiff and the manufacturer.
Defendant's counsel argued on this point: "They [the manufacturer] were dissatisfied, that something was wrong, and they didn't want him [the plaintiff] as a direct dealer." The plaintiff excepted on the ground that the argument had no evidence to support it.
The plaintiff also excepted to the denial of a motion to set aside the verdict on the grounds of passion, prejudice and mistake.
Transferred by James, J.
Sullivan Sullivan (by brief), for the plaintiff.
Samuel Green (by brief), for the defendant.
The argument in support of the first exception does not command acceptance. It misconstrues the court's position. Defendant's counsel made an erroneous statement of the law to the jury. The court on objection sustained the claim of error. Defendant's counsel undertook to protest, whereupon the court interrupted him and instructed him to proceed with his argument. The erroneous statement was then withdrawn and the argument resumed.
To say that the words of the court's direction not to discuss the point of law further adopted counsel's position about it, is to ascribe a meaning to them not intended and not understood by the jury to be thus intended. The court, instead of receding from its ruling of error, insisted on maintaining it. The expression used is to be construed in the light of the context of the entire discussion and its outcome. Thus considered, the most reasonable, if not the only reasonable, conclusion is that the jury understood that they were instructed that counsel had committed error in his statement of the law.
Regarding the second exception, the inference that one seeking to cancel a contract does so because of dissatisfaction and because something is wrong, is not in general conjectural. Dissatisfaction is an almost compelled conclusion, and the argument that "something was wrong" was not a claim of the plaintiff's misconduct or breach of contract, but merely that a situation existed which was not right from the standpoint of business relations and success and which thus caused the dissatisfaction. The argument was legitimate.
How far the denial of the motion to set aside the verdict serves to support these views of the argument, has not been considered. The exception to the denial calls for no attention in other respects.
Exceptions overruled.