Charles A. Wright, Inc. v. FD Rich Co., 6581.

• Decision Date: 05 January 1966
• Docket Number: No. 6581.,6581.
• Parties: CHARLES A. WRIGHT, INC., Plaintiff, Appellant, v. F. D. RICH CO., Incorporated, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

354 F.2d 710 (1966)

CHARLES A. WRIGHT, INC., Plaintiff, Appellant, v. F. D. RICH CO., Incorporated, Defendant, Appellee.

No. 6581.

United States Court of Appeals First Circuit.

Heard November 2, 1965.

Decided January 5, 1966.

Louis Kerlinksy, Springfield, Mass., for appellant.

Charles S. Cohen, Springfield, Mass., with whom Stephen A. Moynahan and Benjamin D. Novak, Springfield, Mass., were on brief, for appellee.

Before ALDRICH, Chief Judge, and HASTIE^* and McENTEE, Circuit Judges.

McENTEE, Circuit Judge.

This is a diversity suit for breach of contract. Between February and October of 1954 plaintiff entered into a series of eleven contracts with the defendant to do certain excavation and other work at Westover Air Force Base and Hanscom Air Force Base in Massachusetts as a subcontractor for the defendant who had general contracts with the United States Government for the construction of certain facilities there. Payments under these contracts were to be made by the defendant monthly on the basis of 90% of the value of the work satisfactorily completed by the plaintiff during the previous month. Plaintiff commenced the work and the defendant began making monthly payments. During the fall of 1954 plaintiff's suppliers began to complain to the defendant that they were not being paid for materials delivered. Thereupon in November, 1954 the plaintiff told the defendant that as of October 31, 1954 the amount of its indebtedness to its suppliers on these jobs (for which defendant would be liable under its contracts with the United States if plaintiff did not pay) was approximately $117,000. During this period defendant was complaining to the plaintiff that he was behind in the work. Also at or about this time defendant stopped the monthly payments on the contracts. The parties conferred with reference to the situation and on December 16, 1954, entered into another contract which was "supplementary and in addition" to the original sub-contracts. As a part of this general agreement plaintiff gave defendant a promissory note for $50,000 secured by a chattel mortgage on its machinery and equipment. The supplementary agreement contained, amongst other things, an acknowledgment by plaintiff that it had not been performing its said subcontracts in accordance with their terms and that it was behind in the progress of the jobs. Thereafter, the only funds which defendant paid to the plaintiff directly were for net payroll but it did make substantial payments to plaintiff's creditors during the months of December, 1954 and also in January and February, 1955.

In early March defendant received notice that plaintiff's insurance was cancelled for nonpayment of premiums, which again focused attention on the plaintiff's financial condition. Also during the preceding months defendant continued to complain about plaintiff's lack of progress and failure to perform the work as agreed. By this time plaintiff was in breach of its contracts¹ and after notice to the plaintiff dated March 28, 1955, the defendant took over the jobs. In mid April plaintiff was allowed to resume a portion of the work it had been doing at Westover. However, on or about June 15, 1955, defendant discharged plaintiff on this job and terminated all the contracts for failure of the plaintiff to prosecute its work with promptness and diligence and undertook to complete the work. Shortly thereafter, the plaintiff's machinery and equipment were sold at mortgagee's sale and eventually it was declared bankrupt. The trustee in bankruptcy made no claim against the defendant on these sub-contracts.

Plaintiff now seeks damages for defendant's alleged wrongful termination of the contracts. In its answer, the defendant set up plaintiff's failure to pay its creditors and to perform the work with promptness and diligence as agreed. It also counterclaimed to recover losses resulting from plaintiff's breach of the subcontracts. With the consent of the parties, the court referred the case to a master who found, inter alia, that plaintiff breached the contract relating to performance and payment of creditors and that defendant was warranted in terminating on those grounds; that defendant paid plaintiff or on its behalf all monies due under the contracts before they were terminated; that there was no money owed by the defendant to the plaintiff and that the defendant had no valid counterclaim against the plaintiff. The master's report was introduced in evidence at the trial of the case to a jury. The jury returned a verdict for the defendant on plaintiff's claim against it and found for the plaintiff on defendant's counterclaim. Plaintiff appeals from the ensuing judgment entered against it and from the denial of its motion for a new trial.

One of the plaintiff's assignments of error is the court's refusal to give the jury certain instructions. At the close of the testimony, plaintiff submitted fifty-one requests for instructions.² After the court had completed its charge plaintiff's attorney addressed the court as follows: "I would like to object and save my rights to the omission from the charge of plaintiff's requests for instructions to the jury, as follows: number 5, number 8, number 9, number 10, number 11, * * * 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, * * * 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51."

Rule 51, Fed.R.Civ.P. provides:

"No party may assign as error the giving or the failure to give an instruction unless he objects * * *, stating distinctly the matter to which he objects and the grounds of his objection. * * *"

In commenting on this rule this court has said:

"The object of this rule is to afford the trial judge an opportunity upon second thought, and before it is too late, to correct any inadvertent or erroneous failure to charge. The rule also serves to lessen the potential burden of appellate courts by diminishing the number of rulings at the trial which they may be called upon to review." Marshall v. Nugent, 222 F.2d 604, 615 (1st Cir. 1955).

In Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719 (1943), our Supreme Court said:

"In fairness to the trial court and to the parties, objections to a charge must be sufficiently specific to bring into focus the precise nature of the alleged error. Where a party might have obtained the correct charge by specifically calling the attention of the trial court to the error and where part of the charge was correct, he may not through a general exception obtain a new trial."

The above stated general objection made by plaintiff's attorney in this case was hardly of practical assistance to the court. It did not state distinctly the matter to which he objected and the grounds of his objection as required by the rule. The objection was not "sufficiently specific to bring into focus the precise nature of the alleged error" and failed to show the court "distinctly" which of the large number of requests had not been substantially embodied in the charge. Marshall v. Nugent, supra; Sears v. Southern Pacific Company, 313 F.2d 498 (9th Cir. 1963); Johnson v. Chesapeake and Ohio Railway Company, 227 F.2d 858 (7th Cir. 1955); cf. Chernack v. Radlo, 331 F.2d 170, 172 (1st Cir. 1964). Thus, the plaintiff did not properly preserve its objections for review.

Notwithstanding this noncompliance with the rule, our examination of the charge leads us to the conclusion that the jury was fully instructed upon the material issues in this case and under the circumstances the trial court's refusal to give plaintiff's requested instructions was not reversible error.

Plaintiff also contends that the trial judge in his charge made certain remarks which were prejudicial to the plaintiff. Specifically it objects to ...