of defendant's mine), and an organizer (T., pp. 25-26). Anderson testified that he negotiated the agreement with the defendant and had in his possession and presented to the defendant for his signature blank copies of the contract document, and, in fact, signed it as an officer, along with John L. Lewis, President of the United Mine Workers of America, and other officers on behalf of the Union (T., pp. 24, 25, 26 and plaintiffs' Exhibit 3). There was no suggestion by either party that Anderson was an agent of or acting on behalf of the plaintiff trustees, the third-party beneficiaries.
In their 12th and 13th reasons for a new trial plaintiffs contend that the court erred as a matter of law in not finding that Anderson 'had no authority to alter, vary or change the terms of the written collective bargaining agreement entered into between the United Mine Workers of America and the defendant', or 'to delay the effective date of the' said agreement.
There is no merit in these reasons.
First, plaintiffs made no request at the trial that the court decide in favor of plaintiffs as a matter of law that Anderson had no authority from the United Mine Workers of America to negotiate the alleged contract with the defendant; we think they are precluded from doing so now. Second, if Anderson's authority to act for the United Mine Workers of America was an issue of fact for the jury, neither party demanded that it be so submitted, and, therefore, when judgment was entered for defendant on the special verdict, the questions of Anderson's agency and authority were deemed resolved in favor of the judgment. Rule 49(a).
There is ample basis for this 'finding'. The fact that Anderson, as an officer of the Union, and Mr. Lewis, the President of the Union, signed the document which Anderson negotiated with the defendant is strong evidence that when Anderson acted, he did so with the approval of the United Mine Workers of America and as an agent thereof. And even if it be true that Anderson had no actual authority to make, or agree to, the condition precedent to the consummation of the contract, which condition the jury found he in fact made, we think it is evident that he had apparent authority to do so.
Motion to Reopen Judgment and for a Directed Verdict in Favor of the Plaintiffs.
Plaintiffs' 'Motion to Reopen Judgment and for a Directed Verdict in Favor of the Plaintiffs' must also be denied. We treat this motion as one for judgment in accordance with the motion for a directed verdict under Rule 50(b), 28 U.S.C.A.
As stated previously, we reserved ruling on plaintiffs' motion for a directed verdict made at the close of all the evidence. The case was then submitted to the jury which rendered its verdict on May 4, 1960. The instant motion was not filed until June 30, 1960, almost two months after the jury's verdict was received. Rule 50(b) provides in part:
'Within 10 days after the reception of a verdict, a party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict * * *.'
There was no motion made by plaintiffs for an enlargement of time for the filing of the motion, but even if plaintiffs had so moved, we would have been powerless to grant the motion. Rule 6(b), Fed.R.Civ.P., provides in part:
'(b) Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion * * * (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules * * * 50(b) * * *.'
The motion was untimely filed and we have no power to grant the relief requested therein. Johnson v. New York, N.H. & H.R. Co., 1952, 344 U.S. 48, 73 S. Ct. 125, 97 L. Ed. 77.
But even if we had the power to consider this motion on its merits, the plaintiffs would not be entitled to relief. At the trial plaintiffs made two motions for directed verdict -- one at the close of defendant's case and the other at the close of all the evidence -- the sole ground for each of the motions was: 'Plaintiffs have proved their cause of action and defendants have failed to prove any defense thereto.' In their motion for judgment in accordance with their motion for directed verdict, however, plaintiffs cite four grounds for relief, which grounds may be stated as follows:
(1) The plaintiffs have proved their cause of action and the defendant has failed to prove any defense thereto.
(2) A prior oral agreement to a written collective bargaining agreement is invalid.
(3) The defendant ratified the agreement.
(4) The defendant is estopped to deny the agreement.
The latter three grounds were not specified in the motions for a directed verdict, and the latter two grounds were not even mentioned in counsel's oral argument in support of the motions made at the trial. Rule 50(a), Fed.R.Civ.P., requires that 'a motion for directed verdict * * * state the specific grounds therefor.' As previously stated the only ground actually specified was (1) above; ground (2) was discussed in counsel's oral argument in support of the motion, but the latter two grounds were never offered as a basis for a directed verdict and consequently cannot be considered as grounds for a judgmnt 'in accordance' with the motion for directed verdict.
The first two grounds must also fail for it is clear from our discussion of the motion for a new trial that defendant did indeed prove a defense to plaintiffs' case; namely, the nonoccurrence of a valid condition precedent to the contract.
An appropriate order will be entered denying plaintiffs' motion for a new trial and 'Motion to Reopen Judgment and for a Directed Verdict in Favor of the Plaintiffs'.