what the real understanding was. It cannot be supposed that there is any rule of law which would place a court in the preposterous position of proceeding to adjudicate the contractual rights and liabilities of parties before it upon the basis of a theoretical agreement which both sides agree was not the contract they made.
As a matter of fact, had the jury answered either Question One or Two in the affirmative instead of Question Three, the defendant would have been entitled to judgment, the reason being that the contract would then have been invalid under the Statute of Frauds. And this leads to the conclusion that, on the uncontradicted testimony of the existence of an oral understanding of some kind as to the price which the parties had no intention of dealing with in the writing, a verdict for the defendant could properly have been directed at the close of the evidence.
The Plaintiff's Motion for New Trial.
The plaintiff's motion for a new trial is based on a large number of reasons, none of which require extended discussion. One of them is that the questions, the answers to which make up the special verdict, involve matters of law rather than fact. This is not so, however. The plaintiff, I think, confuses evidentiary facts with fact issues. Federal Rules of Civil Procedure, rule 49(a), 28 U.S.C.A. following section 723c, prescribes that a special verdict would be in the form of a written finding 'upon each issue of fact.' It is proper practice to simplify the task of the jury by making the questions as simple and as broad as possible. If a party thinks that the questions do not adequately cover the case, he may propose additional ones for submission to the jury, before they retire, otherwise he waives his right to a trial by jury upon them. 'A special issue or special interrogatory should relate to, and call for, only the determination of some ultimate fact involved in the case, and essential to the right of action or matter of defense * * * ,' 64 C.J.,Page 1132, and an interrogatory is improper and may be refused submission where it relates to or calls for a merely evidentiary fact. Of course, the questions must be confined to matters of fact but in some issues questions of fact and law are necessarily intermingled and when this is the case the submission of the questions is not error. Mills Woven Cartridge Belt Co. v. Malley, 1 Cir., 286 F. 841.
As to the charge, no complaint either as to its correctness or adequacy is made in this motion nor did the plaintiff raise any such question at the trial. The plaintiff submitted two points for charge which the Court did not deal with. However, at the end of the charge the Court said, 'Gentlemen, is there anything further you want me to say to this jury?' In response to this request the defendant, who had presented 18 points for charge, requested the Court to charge upon four of them, excepted to the Court's refusal to do so and in addition took six specific exceptions to portions of the charge or omissions therefrom. The plaintiff made no request and took no exceptions. His silence, in view of the protracted discussion about the defendant's points and the numerous exceptions taken by the defendant, can hardly have been mere oversight. One of the points had to do with the burden of proof upon the issue of rescission contained in the fifth question.
In view of the questions submitted, particularly the first three, it may have been advantageous to the plaintiff not to invite the Court to deal with the matter of burden of proof but to go to the jury upon the charge as it stood or at least his counsel may have thought so. At any rate he elected to do so and must be deemed to have waived his right to have his points submitted or ruled upon
However, this discussion upon the motion for a new trial is largely unnecessary. As has been pointed out the undisputed evidence that there was an existing arrangement upon the question of price and that it was omitted from the written contract would require the entry of judgment for the defendant regardless of the findings of the jury.
The plaintiff's motion for a new trial is denied.
Judgment may be entered for the defendant.