Unpublished Disposition, 935 F.2d 274 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 274 (9th Cir. 1991)

HERBERT WARREN & ASSOCIATES, INC., Plaintiff-Appellant,v.RAMADA INNS, INC., and Ramada International, Inc.,Defendants-Appellees.

No. 90-55421.

United States Court of Appeals, Ninth Circuit.

Submitted May 15, 1991.* Decided June 3, 1991.

Before PREGERSON, BRUNETTI and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM** 

Herbert Warren & Associates, Inc. (Warren) appeals from a judgment on a general verdict in favor of Ramada Inns, Inc. and Ramada International, Inc. (Ramada) in a breach of contract action. We affirm.

The bulk of Warren's appeal revolves around a characterization of this case as one involving rescission. However, the district court was correct in determining that under California law this case involved termination1  rather than rescission of the contract (RT at 7-11--7-13, 7-35--7-38). 1 WITKIN, SUMMARY OF CALIFORNIA LAW, CONTRACTS Secs. 868, 869 (9th ed. 1987); see Pico Citizens Bank v. Tafco Inc., 201 Cal. App. 2d 131, 19 Cal. Rptr. 905 (1962); Sanborn v. Ballanfonte, 98 Cal. App. 482, 277 P. 152 (1929); see also Star Pacific Investments, Inc. v. Oro Hills Ranch, Inc., 121 Cal. App. 3d 447, 176 Cal. Rptr. 546 (1981). The terminology employed by the parties is not controlling. Star Pacific Investments, Inc., 121 Cal. App. 3d at 462 n. 11, 176 Cal. Rptr. at 554 n. 11 (citing Pico Citizens Bank, 201 Cal. App. 2d at 136, 19 Cal.Rptr. at 908).

The district court therefore did not abuse its discretion in recasting the jury instructions to delete the word "rescission" and in omitting the California Civil Code Sec. 1691 rescission/restoration of benefits instruction, to reflect the evidence as it came in at trial. See Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988); Los Angeles Memorial Coliseum Comm'n v. National Football League, 726 F.2d 1381, 1398 (9th Cir.), cert. denied, 469 U.S. 990 (1984). We find substantial evidence in the record to support allowing the affirmative defense of termination to go to the jury.

Liberally construing the pretrial order, the issues of termination, abandonment of contract, and waiver by Warren were embraced within its language. See Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1526 (9th Cir. 1987). Warren did not object at trial to the final version of the waiver instruction as modified by the court and given to the jury, and its objection is thereby waived. (RT at 7-29:20--7-31:1.) Fed. R. Civ. P. 51; Philippine Nat'l Oil Co. v. Garrett Corp., 724 F.2d 803, 807 (1984).

Warren's objection to the jury instructions regarding the affirmative defense of mutual termination or abandonment was arguably preserved. (RT at 7-6--7-7; 7-13.) However, the district court did not abuse its discretion in instructing the jury on this issue. California law supports the abandonment defense in this case. Pennel v. Pond Union School Dist., 29 Cal. App. 3d 832, 105 Cal. Rptr. 817 (1973); Honda v. Reed, 156 Cal. App. 2d 536, 319 P.2d 728 (1958); Griffin v. Beresa, Inc., 143 Cal. App. 2d 299, 300 P.2d 31 (1956); Kane v. Sklar, 122 Cal. App. 2d 480, 265 P.2d 29 (1954). Substantial evidence showed Ramada twice wrote Warren to inform him he would receive the $20,000 finder's fee but not a 10 percent interest in the joint venture, and that Warren deliberately did not object to, and acquiesced in, this decision. A party is entitled to have theories supported by the evidence presented to the jury. Los Angeles Memorial Coliseum Comm'n, 726 F.2d at 1398.

The district court did not abuse its discretion in denying Warren's motion for a new trial. The verdict was not against the weight of the evidence; sufficient evidence existed to support Ramada's defenses; and the jury was not improperly instructed.

We have considered all other contentions of the appellant and conclude that no additional discussion is necessary. The judgment of the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

In this case the parties and the court at times used the terms termination and cancellation as synonyms. (See, e.g., RT at 7-11:12-23.) The district court determined the case involved termination under California law, and instructed the jury in accordance with the termination defense, although the word "cancellation" was used in instructing the jury. (RT at 8-19--8-23.) The effect of cancellation or termination is the same (all obligations which are still executory on both sides are discharged but prior accrued rights remain and are enforceable), except that the cancelling party also retains any remedy for breach of the whole contract or any unperformed balance. 1 WITKIN, SUMMARY OF CALIFORNIA LAW, CONTRACTS, Secs. 868, 869 (9th ed. 1987). The jury instructions as a whole fairly and adequately covered the issues presented, correctly stated the law, and were not misleading. Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988)