B.l. Mcteague & Co., Inc., Plaintiff, Appellant, v. Martin Copeland Company, et al., Defendants, Appellees, 753 F.2d 168 (1st Cir. 1985)

This appeal is taken from the denial of a motion for a new trial in an action for breach of contract. Plaintiff-appellant B.L. McTeague & Co., Inc. (McTeague), a Connecticut corporation, agreed to act as exclusive broker in the sale of defendant-appellee Martin-Copeland Co. (Martin-Copeland), a Rhode Island corporation. Under the agreement the agency was to last for a fixed period of eight months, during which McTeague would receive a monthly fee. If McTeague succeeded in arranging the sale, upon completion of the transaction it would receive an additional "investment banking fee." On June 30, 1982, more than 10 months after the agreement was consummated, Martin-Copeland redeemed the shares belonging to its majority stockholder, leaving the former minority shareholders in complete ownership of said corporation and making the sale of the company to third parties a moot issue in the eyes of this new majority. McTeague, claiming entitlement to the investment banking fee, sued for breach of contract upon the denial by Martin-Copeland that the stock redemption effectuated constituted a "sale" within the meaning of the brokerage contract.

Appellant has taken issue with the district court's submission to the jury of the question of whether the agreement between the parties covered the transaction which ultimately occurred. McTeague also alleges that the court erred in charging the jury on the plaintiff's claims of breach of contract and conspiracy to interfere with contractual relations. At no time before this appeal did the appellant raise any objections regarding these matters.

Rule 51 of the Federal Rules of Civil Procedure specifically states in pertinent part:

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.

(Emphasis added.)

We are therefore called upon to find that appellant's failure to object to the instructions given by the court below was not fatal, and that the deficiencies and contradictions alleged constitute "plain error," e.g., Morris v. Travisono, 528 F.2d 856, 859 (1st Cir. 1976)--an exception to Rule 51 that is to be applied "sparingly and only in exceptional cases or under peculiar circumstances to prevent a clear miscarriage of justice." Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., 625 F.2d 1034, 1037 (1st Cir. 1980); Nimrod v. Sylvester, 369 F.2d 870, 873 (1st Cir. 1966).

We need not dwell unnecessarily on this matter. A review of the evidence in the record and the jury instructions does not present us with a situation that requires reversal for plain error. We find, for the most part, that the instructions given were consonant with the case as developed by the parties. The case involved a classic jury issue, interpretation of the intention of the parties from an ambiguous contractual relationship, which received a classic jury response and is thus entitled to the highest judicial deference.

In light of the above, we find that the trial court did not err in denying plaintiff's motion for a new trial. We further conclude that the present appeal is frivolous and therefore, pursuant to Rule 38 of the Rules of Appellate Procedure, award double costs to the appellees.

Affirmed with double costs awarded to the appellees.