The defendant next argues that the plaintiff Booker, as either a guarantor or shareholder, suffered no loss and is therefore, entitled to no award of damages. However, this court notes that the plaintiff Booker's claims do not arise out of a wrongful act committed by the creditor to the principal debtor nor arise out of a tort or a breach of contract committed against PCC. Rather, the claims arise out of a contractual relationship between the plaintiff Booker and the defendant. The plaintiff Booker negotiated and entered into an agreement with the plaintiff Bank and the defendant. Although the plaintiff Booker performed his obligations, the contract was breached by IHCC. As a consequence, the plaintiff Booker suffered losses and was entitled to recover. The jury accepted the testimony adduced on the subject of damages and reached its verdict which should stand in the absence of an indication that manifest injustice will occur.
Finally, the defendant argues that its motion for a directed verdict on the counterclaim against PCC was wrongly denied because no defense was presented by PCC and because a reasonable jury could not properly find in favor of PCC in light of the evidence presented. These assertions are made in general terms, without supporting argument and without particular reference to the evidence presented or to the applicable law. In the absence of specificity, and after a review of the evidence and inferences arising made in the light most favorable to plaintiffs, this court concludes that the jury's verdict should stand.
MOTION FOR A NEW TRIAL
The defendant alternatively moves for a new trial pursuant to Fed.R.Civ.P. 59. Decisions to grant a new trial rest in the sound discretion of the court whose "duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice P 59.08 at 59-160. See also, Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474-475 (3d Cir.1973). The court may not substitute its own judgment for that of the jury, Marder v. Conwed Corp., 75 F.R.D. 48, 54 (E.D.Pa.1977), and the judge should abstain from interfering with the verdict unless it is quite clear that the jury has reached a seriously erroneous result. Lind v. Schenley Industries, Inc., 278 F.2d 79, 80 (3d Cir.), cert. denied, 364 U.S. 835, 81 S. Ct. 58, 5 L. Ed. 2d 60 (1960).
The defendant predicates its motion for a new trial upon nine grounds. This court will discuss each of these grounds in regard to their merit.
First, the defendant contends that the verdicts concerning the claims of both plaintiffs and the counterclaim of PCC were against the weight of the evidence. As stated above in the discussion on the motion for judgment notwithstanding the verdict, the evidence supported the jury's findings since the record contains much more than a paucity of objective evidence in favor of the plaintiffs. The result reached was clearly not seriously erroneous nor did it constitute a miscarriage of justice.
Second, the defendant contends that the damages awarded to the plaintiffs were duplicative and excessive. Again, as stated in our discussion of the previous motion, the jury properly awarded to the plaintiff Bank the amount of its loan, and to Booker an amount to compensate him for the loss of payments which he made, lost profits and interest accruing on the loan.
The defendant's third contention is that the court erroneously permitted the plaintiff Booker to testify, over the defendant's objection, as to the substance of conversations with officials in Harrisburg relating to sales tax status of the trucks. This contention patently mistakes the record. A careful review of the record reveals that counsel for the defendants never made an objection to this testimony of Booker.
The defendant's fourth contention is that the court erroneously excluded the testimony of Thompson and Bradley, representatives of the defendant, regarding a conversation with Pelullo, the original purchaser of the trucks, since this conversation was not offered for the truth of the matter asserted. To the contrary, this testimony was offered to prove the truth of the matter since it was offered to refute the plaintiffs' evidence as to the terms of the July 9, 1981 alleged agreement between the plaintiffs and the defendant and to substitute the terms of an alleged agreement between Pelullo and the defendant. The defendant contends that Thompson and Bradley would have testified as follows:
". . . that Mr. Pelullo advised Mr. Bradley that even if International Harvester Credit Corporation would not agree to the transfer of the trucks to Booker, it could not prevent him from selling the stock of his company to Booker. Mr. Pelullo further stated that the following day he would tender a certified check to bring the delinquent payments on the trucks current through the end of June, that he would deliver a document evidencing Booker's purchase of the stock of the company and he would execute a personal guarantee of the transaction."
Memorandum of International Harvester Credit Corporation in Support of Motion for New Trial, pp. 5-6. It is clear from the substance of this testimony that it was offered for the truth of it to establish the terms of an agreement between Pelullo and the defendant and an explanation of the defendant's retention of the $25,643.59 check. The substance of such an agreement cannot be proved through hearsay testimony. Therefore, the court properly excluded the testimony.
The defendant's fifth ground in support of its motion is that the court erroneously excluded the testimony of Bradley regarding a conversation with a representative from the defendant's legal department, since this was not offered for the truth of the matter asserted but was offered for Bradley's state of mind and Bradley's lack of fraudulent intent. The defendant contends that Bradley would have represented "the circumstances that Mr. Bradley obtained the authorization of the law department at World Headquarters to accept the payment and upon which Mr. Bradley authorized Mr. Thompson to accept the check." IHCC Memorandum, p. 6. Again, the testimony was offered to establish the agreement alleged by the defendant, and was properly excluded.
As to the assertion that this testimony would have refuted any fraudulent intent, this court finds this ground also without merit. The plaintiffs base their claims for fraud upon the following five fraudulent misrepresentations by the defendant: (1) misrepresentation of the total amount due and owing on the trucks; (2) misrepresentation that the plaintiff Bank would be granted second liens upon the trucks; (3) the failure to disclose the existence of unpaid sales taxes upon the trucks; (4) failure to disclose the existence of tax liens on the trucks, and (5) failure to disclose that the letter of July 9, 1981 did not constitute an agreement. Clearly, the excluded testimony of Bradley is totally unrelated to the first four misrepresentations. The only misrepresentation the testimony could possibly be related to is the fifth. However, consideration of the entire record and of the abundance of evidence introduced in support of the claims of fraud, as well as consideration of the probable effect of such testimony compels a conclusion that the exclusion was not a miscarriage of justice to warrant the granting of a motion for a new trial.
The defendant's sixth ground in support of his motion is that the court erroneously failed to instruct the jury on the plaintiffs' duty to mitigate damages. However, this contention is without merit because it was not timely complained of. Rule 51 of the Federal Rules of Civil Procedure provides in pertinent part:
". . . No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."