Seitz, Chief Judge, Aldisert and Gibbons, Circuit Judges.
This is an appeal by Harvlan, Inc. ("defendant") from a district court judgment entered on a jury verdict awarding $40,000 to Clifford A. Hourston ("plaintiff") as a finder's fee. A previous jury had awarded plaintiff $50,000 which was set aside and a new trial ordered. On cross-appeal plaintiff challenges the new trial order and seeks reinstatement of the original verdict.
We have decided that the judge presiding over the first trial abused his discretion in granting defendant's motion for a new trial. Therefore, only the events of that first proceeding as they related to the court's order need be evaluated. The five grounds given by the court in support of its new trial order will be treated seriatim. Preliminarily, however, we note that this Circuit varies the standard controlling a review of an order granting a new trial in accordance with the particular ground which the trial court adopts for its decision. Thus we have stated that on appeal a broad discretion should be recognized in the trial court when its order granting a new trial is based on its conclusion that evidence was improperly admitted or that prejudicial statements were made by counsel. See Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir. 1960). If the order rests on the court's belief that the verdict was against the weight of the evidence, however, closer scrutiny is required by us on review. This is especially true when, as here, "the litigation deals with material which is familiar and simple, . . . lying well within the comprehension of [the] jurors. . . ." Id. at 91. See Grove v. Dun & Bradstreet, Inc., 438 F.2d 433, 438 (3d Cir. 1971).
(1) THE EVIDENCE AS A WHOLE PREPONDERATED IN FAVOR OF THE DEFENDANT
The appropriate test to be applied by the court in considering defendant's motion for a new trial was not whether the evidence "preponderated" in favor of one party or another. Rather, the court was required to decide whether sufficient evidence existed on the record which, if accepted by the jury, could sustain the verdict. As we noted in Lind v. Schenley Indus., Inc., 278 F.2d 79, 91 (3d Cir. 1960), any other standard would permit the trial court to substitute its judgment for that of the jury. We now consider the evidence to determine whether the district court, under the proper standard, might permissibly have granted a new trial.
The dispute between the parties concerns essentially two issues of material fact: (a) whether, pursuant to the parties' non-exclusive brokerage agreement, defendant was obligated to compensate plaintiff for plaintiff's efforts in causing the Venezuelan group, Central la Pastora ("Pastora"), to purchase defendant's mill; and (b) if so, what percentage of the $500,000 purchase price was agreed upon as commission. As to issue (a) it was admitted by defendant that early in 1966, Louis Warschaw as president of defendant contacted plaintiff and requested that plaintiff attempt to locate a purchaser for defendant's Bethlehem sugar mill ("Bethlehem"). Plaintiff testified that on February 17, 1966, in response to this request, he mailed to numerous prospective purchasers including Pastora a flyer listing and briefly describing Bethlehem and several other sugar mills then for sale. Witnesses representing Pastora testified to having received this flyer. In accordance with alleged broker practice under non-exclusive arrangements the identities and locations of the listed facilities were not disclosed. Pastora therefore responded to plaintiff with a request for further details relative to Bethlehem. Upon receipt of this response plaintiff registered Pastora with defendant as a prospective purchaser. This procedure admittedly conformed with the parties' brokerage arrangement. According to plaintiff's uncontradicted testimony it had been agreed that by registering an interested buyer plaintiff's commission would be protected in the event that his prospect ultimately purchased Bethlehem. Plaintiff was not required to participate in the actual negotiations. Rather, defendant itself retained this responsibility.
After registering Pastora as a prospect plaintiff made a written reply to Pastora's request for further information. This reply was delayed until plaintiff personally completed an inventory of Bethlehem. However, pending completion he spoke with Pastora officials by phone, disclosing Bethlehem as the mill in which they were interested and instructing them to contact officials of defendant directly. Personal contact was thereafter made and the sale of Bethlehem was consummated.
Much of plaintiff's testimony was corroborated by documentary evidence. Also, except for one matter discussed subsequently, it is not contended that even if plaintiff's testimony were believed by the jury, nevertheless he failed to establish a prima facie case as to his right to receive a commission. We conclude that the plaintiff's uncontradicted evidence warranted the jury's finding that plaintiff was the procuring cause of defendant's sale of Bethlehem to Pastora. The first trial judge, by substituting his evaluation of the evidence for that of the jury on this issue, abused his discretion. Cf. Lind v. Schenley, supra at 91.
We reach the same conclusion insofar as the trial court decided that the award of $50,000 was against the weight of the evidence. Here again there was testimony by plaintiff that defendant had promised him a commission of 10% of the sale price if that figure ranged between $500,000 and $600,000. We cannot agree with defendant's position that this testimony was rendered inherently incredible by reason of its apparent inconsistency with plaintiff's letter to defendant purporting to confirm their commission arrangement as to amounts equal to or in excess of $600,000.
(2) PLAINTIFF PRODUCED NO MORE THAN A SCINTILLA OF EVIDENCE THAT HE WAS THE PROCURING CAUSE OF THE SALE OF BETHLEHEM TO PASTORA
If the district court was correct on this ground, it would seem that it should have granted defendant's motion for judgment n. o. v. But the short answer is that while a mere scintilla is not enough, we think plaintiff carried his burden of producing sufficient evidence of procuring cause to create a jury issue. See Gunning v. Cooley, 281 U.S. 90, 94, 50 S. Ct. 231, 74 L. Ed. 720 (1930). See also McVay v. American Radiator & Sanitary Corp., 1 F.R.D. 677, 678 (W.D.Pa.), aff'd 119 F.2d 593 (1941). Most important is the undisputed testimony that plaintiff's February 18th flyer preceded by a month or more any contact with Pastora by others purportedly authorized to act on behalf of Bethlehem.
Defendant contends that the date determinative of plaintiff's right to a commission is April 11, 1966, when he registered Pastora with defendant, and that documentary evidence irrefutably demonstrated that Warner, the broker ultimately awarded the finder's fee for locating Pastora, had introduced the Venezuelan group to defendant's officials prior to this date. Even if we accept April 11 as controlling with regard to plaintiff's case, defendant's ...