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WEISS v. ADVEST

March 28, 1985

MICHAEL WEISS and BLANCHE G. WEISS
v.
ADVEST, INC. and THE UNITED STATES TRUST COMPANY OF NEW YORK v. JACQUELYN CUSHMAN



The opinion of the court was delivered by: BRODERICK

 BRODERICK, J.

 This action was brought by Michael and Blanche Weiss against defendants Advest, Inc. (Advest), an investment company, and United States Trust Company of New York (U.S. Trust), a bank, seeking damages on the ground that the negligence of either Advest or U.S. Trust proximately caused the failure of U.S. Trust to stop payment on three checks. Advest joined Mrs. Jacquelyn Cushman, the plaintiffs' daughter, for whose benefit the checks were drawn, as a third-party defendant.

 The plaintiffs, customers of Advest, requested that Advest issue three checks totaling $85,000.00 to be charged against a loan in connection with a margin account which was opened for them at Advest. The checks were to be drawn on Advest's account maintained at U.S. Trust. The plaintiffs had agreed to lend the $85,000.00 to their daughter, Jacquelyn Cushman, to enable her to purchase two show horses. Mrs. Cushman had assured the plaintiffs that she would repay the loan in full within a few days. The checks were issued on Friday, September 26, 1980, and were made payable to the two sellers of the show horses. On Monday morning, September 29, 1980, Mrs. Cushman's husband notified Blanche Weiss that her daughter, Mrs. Cushman, would not be financially able to repay the loan. Sometime between 8:55 and 9:00 a.m., Blanche Weiss telephoned Advest and requested that payment on the three checks be stopped. Advest subsequently informed Blanche Weiss that when it communicated the stop payment request to U.S. Trust, U.S. Trust stated that it was too late to stop payment because the checks had already been cashed. In fact, the plaintiffs later learned, none of the checks had been cashed or approved for payment at the time Advest claimed that it had telephoned the stop payment request to U.S. Trust. Payment on the checks was never stopped, and the payees later cashed all three checks.

 In the liability segment of a bifurcated trial, the jury answered "yes" to the following interrogatory: "Do you find that it has been proven by a preponderance of evidence that Advest was negligent in failing to communicate the plaintiffs' stop payment request to United States Trust and that Advest's negligence was the proximate cause of the failure to stop payment on the plaintiffs' checks?" In the trial on damages, plaintiffs presented evidence that they had suffered losses in the amount of $ 45,000.00 on the resale of the show horses, $2,000.00 in attorney's fees, $ 1,375.00 for insurance on the horses, and $3,665.58 in interest payments on the loan from Advest. The jury awarded plaintiffs the full amount of the damages claimed, $52,030.58.

 In a Memorandum and Order dated January 31, 1985, this Court entered its findings of fact and conclusions of law with respect to Advest's equitable third-party claim against Mrs. Cushman. The Court found that Jacquelyn Cushman had been unjustly enriched by Advest's discharge of her indebtedness to her parents, and that Advest was entitled to subrogation in the amount of the balance of the original loan which was outstanding after the horses were resold, $45,000.00. Advest and Mrs. Cushman have filed post-trial motions which are now before this Court.

 I. Advest's Motion for Judgment N.O.V. and/or A New Trial (Weiss v. Advest)

 Advest advances three contentions in support of its motion for judgment notwithstanding the verdict and/or a new trial: (1) there was insufficient evidence for the jury to find that Advest was negligent in carrying out the plaintiffs' stop payment order, or this verdict was against the clear weight of the evidence; (2) Advest owed no duty to the plaintiffs to communicate their stop payment order; and (3) the failure to stop payment did not cause harm to the plaintiffs.

 A. Sufficiency of the Evidence

 
Motions for a new trial require the exercise of discretion by the Court, whose "duty is essentially to see that there is no miscarriage of justice." 6A Moore's Federal Practice para. 59.08[5], at 59-160 (footnote omitted) (2d ed. 1974); Thomas v. E.J. Korvette, Inc., 476 F.2d 471, 474-75 (3d Cir. 1973). The jury's verdict may be set aside only if manifest injustice will result if it were allowed to stand. The Court may not substitute its own judgment for that of the jury merely because the Court may have reached a different conclusion. To grant a motion for judgment n.o.v., the Court must find as a matter of law that the plaintiff failed to adduce sufficient facts to justify the verdict. Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1210 (3d Cir.), cert. denied, 400 U.S. 826, 91 S. Ct. 51, 27 L. Ed. 2d 55 (1970). Such a motion "may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment." 5A Moore's, supra, P 50.07[2], at 50-77 (footnote omitted); Korvette, supra, at 474.

 Douglas W. Randall, Inc. v. AFA Protective Systems, Inc., 516 F. Supp. 1122, 1124 (E.D.Pa. 1981), aff'd mem. 688 F.2d 820 (3d Cir. 1982).

 The plaintiffs produced evidence which was more than sufficient, under either the JNOV or the new trial standard, to support the jury's verdict that Advest's negligence was the proximate cause of the plaintiffs' losses.

 By about 9:20 a.m. on Monday, September 29, 1980, Advest had reported to Blanche Weiss that it had learned from U.S. Trust that it was too late to stop payment on the checks. In fact, the first of the three checks was not presented until 10:16 a.m. that morning. Prior to cashing the check, the U.S. Trust teller ran a status check and learned that no stop payment order had been placed. The check was cashed. The payee on the two other checks deposited them in its account, and they were processed for collection and paid through normal banking channels.

 All parties agreed that if Advest had made the call to U.S. Trust between 9:00 and 9:20 a.m., then U.S. Trust would have had sufficient time to effectively stop payment on the checks. Because U.S. Trust did not effectuate a stop payment order, the essential inquiry was whether Advest negligently failed to make the proper phone call to U.S. Trust, or whether U.S. Trust failed to effectuate a properly transmitted stop payment order. Advest presented testimony concerning a chain of communications among its Philadelphia, Hartford, and New York City offices. There was also testimony concerning Advest's normal procedure for telephoning stop payment orders to U.S. Trust. However, the testimony concerning the actual phone call to U.S. Trust was vague at best. The employee who should have called U.S. Trust had no recollection of ever having made the call. Her co-worker's testimony at trial conflicted with her prior deposition testimony regarding what, if anything, was done to contact U.S. Trust. Further, Advest had no record showing that the call had been made. On the other hand, the U.S. Trust clerk who would normally have handled such a call ...


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