Nickerson v. Rowe

• Decision Date: 08 June 1994
• Citation: 647 A.2d 1191
• Parties: Millard NICKERSON, III, v. Doris ROWE.
• Court: Maine Supreme Court

Page 1191

647 A.2d 1191

Millard NICKERSON, III, v. Doris ROWE.

Supreme Judicial Court of Maine.

Argued March 18, 1994.

Decided June 8, 1994.

Stephen E.F. Langsdorf, Preti, Flaherty, Beliveau & Pachios, Augusta, for plaintiff.

David G. Webbert (orally), Law Offices of Phillip E. Johnson, Augusta, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, and DANA, JJ., and COLLINS, A.R.J.

DANA, Justice.

Doris Rowe appeals from a judgment entered in the Superior Court (Kennebec County, Mills, J.) following a jury trial in which she was found in breach of contract for nonpayment of her contractor, Millard Nickerson III. Contrary to her contention, the court did not abuse its discretion in failing to give an instruction regarding the defense of adequate assurances of performance, did not err in allowing Nickerson to recover as consequential damages interest payments on a loan, and made no obvious error with respect to Nickerson's closing argument. We therefore affirm the judgment below except with respect to the mechanic's lien, which was not timely.

When Rowe became aware of numerous problems with the house that Nickerson was building for her, she demanded in writing that she be given adequate assurances that Nickerson could correct these defects. See Drinkwater v. Patten Realty Corp., 563 A.2d 772, 776 (Me.1989) (a party to a contract with reasonable grounds to believe that the other party will not perform may demand assurance of performance and may treat as a repudiation a failure to provide adequate assurance within a reasonable time). Immediately thereafter the parties entered into settlement discussions resulting in an agreement whereby Nickerson would remove the nearly completed house from the property in lieu of Rowe paying anything further. Rowe later repudiated the agreement. She successfully prevented any word of these discussions reaching the jury, but objected when the court refused to instruct the jury that Nickerson's failure to respond to Rowe's request for adequate assurances justified Rowe's repudiation of the underlying contract. The court was correct because Rowe kept out evidence of the settlement discussions that Nickerson contended were the very reason for his failure to respond. See Aucella v. Town of Winslow, 628 A.2d 120, 123 (Me.1993) (a party is entitled to a specific jury instruction only if it "states the law correctly, is supported by the facts, is not misleading, and has not already been covered by the charge"); Pelkey v. Canadian Pacific Ltd., 586 A.2d 1248, 1251 (Me.1991) (if instructions "are substantially correct and legal situation is made clear to the jury," the court's decision not to amplify or further explain is not error).

The court did not err, as Rowe also contends, in allowing Nickerson to recover special damages in the form of interest payments on a construction loan. Based on competent evidence, the jury found that the interest payments were reasonably within Rowe's contemplation at the time she entered into the contract. Forbes v. Wells Beach Casino, Inc., 409 A.2d 646, 654 (Me.1979); see Casco Bank & Trust Co. v. Bank of New York, 584 F.Supp. 763, 767 (D.Me.1984) (prejudgment interest statute does not preclude plaintiff from showing damages beyond statutory rate); Batchelder v. Tweedie, 294 A.2d 443, 444 (Me.1972) (prejudgment interest statute is procedural incentive only);...