contract itself, nor disclosed in the extraneous evidence. It is conjectural whether the commission arrangement was to commence April 19, 1951, May 1, June 1, July 1, or December 1. Such absence of evidence upon so essential a feature of the contract is fatal to its enforceability. Cf. Laseter v. Pet Dairy Products Co., 4 Cir., 1957, 246 F.2d 747.
One further point, which even if not disposed of, would have no bearing on the Court's opinion, is raised, and because not determined by the jury's verdict it is dealt with here. It concerns a document, dated January 31, 1957, signed by plaintiff and delivered to defendant's secretary upon the occasion of plaintiff's receipt of $ 758.34. The document states: 'Received from Park & Tilford Distillers Corporation the sum of $ 758.34, less required deductions, and accept the aforementioned sum as full and final settlement of all wages due from the said Park & Tilford Distillers Corporation.' Lind's testimony (the only evidence shedding any light on the paper) was that this amount represented compensation for unused vacation time, and that the corporation's secretary requested that he sign 'this receipt for this vacation check pay.' The Court referred to this document in its main charge as one of the circumstances which the jury had to consider in order to determine whether a contract existed. Neither party submitted any requests to charge concerning this particular point nor made any objection or suggestion to the reference to the document in the general charge. The effect of the writing was treated by the Court as presenting a jury question, Kissell v. Myer & Bush Co., E. & A. 1921, 96 N.J.L. 513, 115 A. 378; but no special finding thereon was requested, although the questions which were submitted to the jury were approved by both parties before submission. Failure of each of the parties to demand that this question be submitted to the jury for a special finding thereon constituted a waiver of right to jury trial thereof. The failure of the Court to make a finding upon the issue results in a presumed 'finding in accord with the judgment on the special verdict;' i.e., a finding that the writing was not a release of plaintiff's claim for commissions. Rule 49(a) Fed.R.Civ.P. At all events, upon review I find that the writing was not a release and did not evidence an accord and satisfaction. It was an acknowledgement of receipt of that to which the plaintiff was in any event entitled. Columbia Horse & Mule Commission Co. v. American Insurance Co., 6 Cir., 1949, 173 F.2d 773; Merrill v. Beaute Vues Corporation, 10 Cir., 1956, 235 F.2d 893.
The second aspect of the jury's findings must also be set aside. As stated, it awarded Lind $ 353 as reimbursement for moving expenses incurred by Lind when his position as New Jersey State Manager terminated on January 31, 1957. This finding was based on Lind's testimony that an unnamed assistant to Herrfeldt told Lind, when he was transferred to the New Jersey position, that if he ever had to move back to New York, the defendant would pay for the return. The assistant was not called as a witness and there was no evidence that Herrfeldt knew such statement had been made. No basis is disclosed for an inference that Lind's informant had express, implied or apparent authority to thus bind the corporation.
Defendant's motion for judgment notwithstanding the verdict is granted.
Motion for New Trial
When, as here, a party avails himself of both alternative motions authorized by Rule 50(b), he is entitled to a ruling upon each of them. Montgomery Ward & Co. v. Duncan, supra. I have granted the motion for judgment n.o.v. because I conclude, upon the evidence, that the jury's findings are without any support therein and that plaintiff has failed to show that he is entitled to relief. The alternative motion for new trial is based upon defendant's contentions that the verdict for plaintiff is (1) contrary to the weight of the evidence, (2) contrary to law, and (3) a result of error in the admission of evidence. Upon this motion I am called upon to set aside the verdict and grant a new trial if "the verdict is against the clear weight of the evidence, * * * or will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Eastern Air Lines, Inc., v. Union Trust Co., 99 U.S.App.D.C. 205, 1956, 239 F.2d 25, 29, quoting from Aetna Casualty & Surety Co. v. Yeatts, 4 Cir., 1941, 122 F.2d 350.
The evidence has been summarized in great detail. The jury's findings and the verdict as molded thereon are contrary to the weight of the evidence. They are also contrary to law, as has been determined in reaching the conclusion that defendant is entitled to judgment. For each of the foregoing reasons, the verdict and findings should be set aside, and, if the judgment n.o.v. is reversed, defendant is entitled to and is allowed a new trial.
Lastly, the defendant contends that it was error to admit in evidence a tabulated summary which purported to show the sales of liquor made by personnel under the plaintiff's supervision during the years 1950 and 1951. These sheets were concededly neither kept nor compiled in the regular course of the business of defendant, but were made up, according to plaintiff's testimony, partly by himself and partly by a fellow-employee or employees from copies of invoices covering the deliveries of the respective quantities involved in each sale. Irrespective of the ground urged in support of the objection to the admission of this exhibit, I conclude that it was inadmissible since it was not a record made by defendant or plaintiff in the regular course of business as contemplated by 28 U.S.C. § 1732. Neither was any showing made that this constituted the best evidence of those sales. These sheets, as was the case of numerous exhibits excluded in William Whitman Co. v. Universal Oil Products Co., D.C.Del.1954, 125 F.Supp. 137, represented the culling of data from various records of a party other than the party offering the same, and were not tendered as an admission against the interest of the adversary party. It is, of course, obvious that if the figures in this exhibit had been excluded, there would have been no basis in the evidence for the computation of the total of the 1% override commission which the plaintiff claimed. I must therefore recognize that the admission of the exhibit constituted harmful error, requiring the allowance of a new trial.
Having, for the reasons above stated, concluded upon the entire record that the defendant is entitled to judgment as a matter of law, and also finding that plaintiff's verdict is against the weight of the evidence and resulted from an error in admission of evidence, an order may be entered for judgment for the defendant notwithstanding the verdict, which shall also provide that in the event such judgment shall be reversed on appeal, a new trial is awarded to the defendant.