In this case the fact now appears, which was overlooked by this court, that the judge below had properly reserved the question of law as to whether a judgment should be entered non obstante veredicto in favor of the defendant. The rule enunciated by the Supreme Court in Slocum v. New York Life Ins. Co., 228 U.S. 364, 33 S. Ct. 523, 57 L. Ed. 879, Ann.Cas. 1914D, 1029, as modified by a later opinion, was properly applied by the court below in the entry of a judgment for the defendant.
Accordingly, we withdraw the portion of the opinion of this court, pages 6 and 7, 93 F.2d 901, dealing with this question, beginning: "We agree therewith, and had the court followed the course indicated and instructed the jury that the written contract was the sole measure of the plaintiff's rights, that prior negotiations were merged in it, and, further, that the proof offered to cancel the contract did not measure up to the indubitable standard required to cancel a contract, and that their verdict should be for the defendant, no error would have been involved. But unfortunately the court did not follow this course and there was a verdict for the plaintiff. Instead, however, of granting a new trial, the court entered a judgment non obstante veredicto in defendant's favor.In doing so the court was in conflict with Slocum v. New York Life Ins. Co.,228 U.S. 364, 33 S. Ct. 523, 57 L. Ed. 879, Ann.Cas. 1914D, 1029, the syllabus of which is: 'Although under the practice of the state a judgment may be entered on the evidence non obstante veredicto, the federal court may not do so but must order a new trial when the evidence does not sustain the verdict.' Its judgment must, therefore, be reversed and in accordance with AEtna v. Kennedy, 301 U.S. 389, 57 S. Ct. 809, 81 L. Ed. 1177. We deem it our duty to direct the court below to grant a new trial." And we substitute therefor the following: "So holding, the entry of judgment n. o. v. by the court below is affirmed."