Citation. 22 Ill.393 F.2d 449 (1st Cir. 1968)
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Brief Fact Summary.
The Appellant, J.F. White Contracting Company (Appellant), attempted to appeal a lower court decision by citing an error in instructions given to the jury.
Synopsis of Rule of Law.
In order for an appeal to be considered, the error in the lower court must have affected the substantial rights of the parties or the verdict.
The Appellant and the Appellee, the New England Tank Industries of New Hampshire, Inc. (Appellee), entered into a contract to build an oil tanker dock facilities on the Piscataqua River. The Appellee, the owner of the premises sued the Appellant for defective workmanship concerning four cylindrical metal cells. A jury trial held for the Appellee in the amount of $20,000.
The Appellant appealed, asserting that the recovery was barred by a contract provision that stipulated the approval of invoices by the Appellee’s engineer was final, conclusive, and binding on both parties. The Appellant further asserted that it was error to have allowed the question of one of the cells being “out of round” to go to the jury. A ship in the process of installation had damaged the cell in question and the Appellant repaired it.
Whether a trial court’s action in submitting a questionable issue to the jury was error enough to affect the verdict of the substantial rights of the parties.
No. While the court’s action in submitting the “out-of -roundness” issue to the jury was error, the court was not persuaded that there was even a remote possibility that this error affected the verdict or the substantial rights of the parties.
As to the Appellant’s contract provision argument, the court could not consider the issue on appeal because the Appellant did not plead it as an affirmative defense nor raised it in the District Court.
Though the court admitted that the lower court’s submittance of the roundness issue to the jury was error, it asserted that the Appellant never complained that the error affected the substantial rights of the parties. Neither side brought it up nor considered it. The court’s instructions on damages had been proper and the Court of Appeals held that there was no reason to suspect that the jury did not properly follow the instructions.