Plaintiffs filed motions for judgment n.o.v. or for a new trial, but the former has been abandoned. Defendant filed a motion for a new trial on Count I of the counterclaim. Plaintiffs urged three grounds in support of their motion: (a) that we erred in permitting the withdrawal of a stipulation; (b) that the jury failed to consider six checks paid after October 1960, the date of the alleged forgiveness; (c) that the conduct of the trial judge created an atmosphere detrimental to the plaintiffs.
We granted a partial new trial as to four
of the six checks, all dated after the date of the alleged forgiveness, even though there had been no exception at the trial to permitting the jury to find that they were covered by the forgiveness. We felt that fundamental fairness required this result. We denied a new trial on the other two grounds without opinion because we thought them plainly without substance. However, since we have concluded that defendant's motion merits an opinion, we might just as well discuss briefly plaintiffs' motion.
1. Permitting withdrawal of a stipulation.
Defendant stipulated that a long series of checks were properly chargeable to him. Counsel later discovered that two checks had been inadvertently included in the stipulation and the court permitted defendant to withdraw those two from the agreement. "A court may relieve a party of his stipulation if necessary to prevent an injustice, particularly where facts contrary to the stipulation are established by the evidence." H. B. Zachry Company v. United States, 344 F.2d 352, 357, 170 Ct.Cl. 115 (1965). And in any event, since the jury found a forgiveness of defendant's indebtedness, there could have been no conceivable prejudice to plaintiffs.
2. The trial judge created an atmosphere detrimental to plaintiffs.
It would serve no useful purpose to set forth at length the matters of which plaintiffs complain. Suffice it to say that they were either rulings of law, were called for by plaintiffs' counsel's conduct of the trial, or are taken out of context. As to the last, even when considered out of context and on their face, they are totally innocuous. Of equal importance is the fact that plaintiffs' counsel made no objection, did not move for a mistrial, and asked for no corrective action. In Faudree v. Iron City Sand & Gravel Company, 315 F.2d 647 (C.A. 3, 1963), the court said, at pages 651-652:
"Finally, it should be noted that at no time during the trial did defendant's counsel take exception to any remark made by the trial judge, nor did he make any formal objection to any of the matters he now contends were so prejudicial as to justify the granting of a new trial. If in fact defendant's counsel felt aggrieved by the alleged prejudicial comments and conduct, he should have called the matter to the court's attention so as to give the court an opportunity to take corrective action. * * *"