C.L. Maddox, Inc. v. Benham Group, Inc.

___________

No. 95-1824
___________

C. L. Maddox, Inc., a Delaware *
Corporation, *
*
Appellee, *
*
v. *
*
The Benham Group, Inc., an *
Oklahoma Corporation, *
*
Appellant, *
*
Dynalogic Engineering, Inc., a *
Michigan Corporation, *
*
Defendant. *

___________
Appeal and Cross-Appeal
No. 95-1992 from the United States
___________ District Court for the
Eastern District of Missouri.

C. L. Maddox, Inc., a Delaware *
Corporation, *
*
Appellant, *
*
v. *
*
The Benham Group, an Oklahoma *
Corporation; Dynalogic *
Engineering, Inc., a Michigan *
Corporation, *
*
Appellees. *

__________

Submitted: February 12, 1996

Filed: July 3, 1996
__________

Before MAGILL, HEANEY, and MURPHY, Circuit Judges.
___________
MAGILL, Circuit Judge.

In this complicated breach of contract action in which the jury
awarded $5 million to C. L. Maddox, Inc. (Maddox), The Benham Group, Inc.
(Benham) appeals several rulings made by the district court during trial.
Maddox cross-appeals the district court's $1,467,000 reduction in the
damages award to Maddox. We affirm in part and reverse in part.

I. BACKGROUND

The dispute between the parties has its origins in the extensive and
expensive remodeling of a coal processing system at an electrical power
plant in Joppa, Illinois. The owner of the plant, Electric Energy, Inc.
(EEI), contracted with Maddox to serve as the general contractor for the
project. Maddox subcontracted with Benham to perform the engineering work
and with Dynalogic Engineering, Inc. (Dynalogic) to provide the necessary
computer hardware and software.

The project did not go well, and Maddox was forced to sue Benham and
Dynalogic for breach of contract. In its complaint, filed January 24,
1992, Maddox alleged that Benham and Dynalogic breached their respective
contracts, and that they made fraudulent and negligent misrepresentations.1
Maddox sued Benham for $5,151,085. This figure included $2,746,717.98 for
damages resulting from errors by Benham in furnishing information for
Maddox to use in bidding on the project; $1,137,000, constituting the
amount spent by EEI to repair or replace equipment that Maddox had supplied
on the project; and $1,267,367.02 for a breach of Subcontract ¶ 2.1.6,
requiring that Benham would guard against defects and deficiencies in the
work of Maddox. Maddox also sued

1
The two misrepresentation counts were dismissed by the
trial court, and this ruling has not been appealed.

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Dynalogic for $330,000, the cost to EEI to replace the computer control
system. Benham and Dynalogic each counterclaimed against Maddox for monies
that they alleged were due them on their respective contracts.

The project began in March 1990, when EEI started soliciting bids.
Jack Craig, a marketing agent for both Maddox and Benham, responded to the
solicitation. In April and May of 1990, Maddox submitted several
2
preliminary design/build proposals to EEI. Each proposal increased in
costs and complexity to meet changing requests made by EEI. The proposals
were the combined product of Craig, Mike Dover (Maddox's project manager),
and Benham personnel. EEI reviewed the proposals and approved the design
concept.

To assist it in preparing its formal proposal, Maddox entered into
an oral agreement with Benham on June 1, 1990, under which Benham would
complete the drawings and specifications necessary for the bid and provide
Maddox with equipment lists and with quantity information. Benham was to
receive $58,200 for this work. The terms of this oral contract were
memorialized by Clete Schierman, Benham's project manager, who had prepared
a chronology of the project and noted that, on June 1,

EEI approves $58,200 for TBG [Benham] to begin in-depth study
of equipment layouts, equipment sizing and to supply necessary
information and assistance for CLM [Maddox] to prepare a final
construction cost (lump sum) for the project. TBG [Benham] is
to develop a final lump sum engineering cost.

Appellant's App. at 206. This chronology was offered at trial as

2
Under a design/build contract, the contractor agrees to
both design and build the project. This differs significantly
from traditional construction arrangements in which an
architect/engineer first designs the project and prospective
contractors then submit bids on the basis of the designer's
drawings and specifications.

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Plaintiff's Exhibit 24.

Maddox relied heavily on the estimates provided by Benham. Curt
Maddox, president of Maddox, Inc., testified that the only way Maddox would
have bid on the project was to rely on the estimates of Benham because
Benham possessed all of the design information. Dover testified that in
preparing the bid, he had to rely on the material quantity estimates
provided by Benham. On the basis of this information, Maddox submitted a
formal proposal on July 5, and EEI issued a letter of intent to Maddox.
The final contract, signed on September 28, was for a fixed price of
$10,326,881.

In mid-September of 1990, Maddox and Benham entered into a written
subcontract for much of the design work on the project. This contract was
retroactively dated "as of June 1, 1990," and it provided that Benham would
perform its design work by January 2, 1991. Article 2 of the agreement
described the "Basic Services" that Benham was to perform for a fixed price
of $616,050. Under ¶ 2.1.6 of Article 2, Benham agreed that it would keep
Maddox "informed of the progress and quality of the Work, and shall
endeavor to guard [Maddox] against defects and deficiencies in the Work of
[Maddox]." Appellant's App. at 184. The Basic Services further included
the preparation of construction drawings, but did not include the
compilation or preparation of bidding information. Rather, ¶ 3.4 of the
contract provided that Maddox "shall furnish all cost estimating services
required for the Project." Appellant's App. at 186. The contract
contained a strict integration clause, providing that all prior agreements
were superseded. Subcontract ¶ 7.5.1.

Benham suggested that Dynalogic design a separate part of the
computer control system to be used at EEI. In August, Dynalogic submitted
a separate additional proposal to Maddox to design part of this system.
The proposal was accepted by Maddox in a November 29, 1990 purchase order
for $82,750.

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 From the start of the project, Maddox experienced problems with
Benham. Benham was late in producing drawings; the drawings actually
produced were often insufficient; and Benham underestimated the amount of
work actually required to complete the final design. Dover testified that
there were delays in getting drawings for the fabrication work. Jack
Jenkins, Maddox's electrical supervisor, testified that prints for the
electrical components of the project were not available, requiring that he
lay much of the wiring for the project without plans, entailing a greater
cost.3

Benham countered that not all of the delay problems were Benham's
fault. On cross-examination, Dover conceded that some of the delays in
drawings were caused by EEI's continued alteration of the project. Other
delays were caused by Maddox, which often failed to timely submit to Benham
vendor-prepared drawings after purchasing equipment. Further, Maddox was
not always timely in its approval of Benham's drawings, which only further
delayed the submission of the drawings to EEI.

At trial, Maddox introduced evidence of Benham's project errors and
design deficiencies.4 Maddox called an expert witness, Douglas Waring, to
testify as to these errors. After examining

3
Dover and Mike Kondritz, a Maddox employee who did not
testify at trial, prepared a color coded chart which documented
the delay claims by showing when drawings were furnished by
Benham. This chart was admitted at trial over strenuous
objection by Benham. The chart summarized a drawing log prepared
by Kondritz during the course of the project. The drawing log
indicated when drawings were received by Maddox and sent out to
EEI. See Plaintiff's Exhibit 108.
4
The design deficiencies were detailed by Plaintiff's
Exhibit 163, a list of 101 design deficiencies noted by Maddox.
Maddox testified that he prepared this list by personally
reviewing the set of field construction drawings and then
investigating each problem at the job site, comparing the drawing
to the actual construction. See Plaintiff's Exhibit 163,
reprinted in Appellant's App. at 304.

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numerous depositions and documents from the project and visiting the
project site, Waring concluded that: Benham underestimated the project's
engineering requirements; that the project objectives were not properly
defined; that Benham failed to properly schedule their work to allow Maddox
to meet the construction schedule; that the project was understaffed by
Benham; that Benham's drawings were lacking in the knowledge of materials
handling; that Benham underestimated the number of drawings that the
project would require; and that although Benham assumed the total
engineering function on the job, there was no evidence of experience by
Benham in handling very large material handling projects.

To counter Waring's testimony, Benham put on an expert witness, Don
Samples, who testified that Benham's drawings met applicable standards.
He contradicted Maddox's design deficiency claims. Benham also offered
Defendant's Exhibit J-13, which was a thorough written response to the
items contained in Plaintiff's Exhibit 163.

Maddox and EEI also experienced problems with Dynalogic. Dean
Bafford, a senior engineer at EEI, testified that EEI had no confidence in
the computerized control system built by Dynalogic, and it felt that
Dynalogic never produced a product for the project that was dependable.
Further, Bafford noted that EEI found numerous deficiencies in the software
supplied by Dynalogic, but the problem was never corrected by Dynalogic.
The system never operated correctly, and EEI eventually had to replace the
entire computer control system. The replacement cost for the system was
$330,000.

In addition to the evidence introduced at trial on whether Benham and
Dynalogic breached their contracts, Maddox introduced evidence of its
estimated damages. This evidence was strenuously objected to at trial by
Benham as being hearsay and without foundation.

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 At trial, Maddox set out how it arrived at the $2,746,717.98 figure
for damages due to bidding errors, engineering errors, and time delays.
See Plaintiff's Revised Exhibit 135, reprinted in Appellee's App. at 681.
In preparing this exhibit, Curt Maddox took information from corporate
records and calculated the total man-hours, labor, equipment, and materials
expended on the project. The exhibit set forth in detail how each figure
was determined. Once these calculations were made, Maddox then calculated
the difference between the amount actually expended by Maddox for the
project and the bid amount made by Maddox when it relied upon the estimates
given to it by Benham.

Maddox also sought to introduce at trial evidence that it was liable
to EEI for $1,467,000, the amount it cost EEI to replace or repair the
defective equipment supplied under the contract. Bafford testified
extensively as to the problems with the finished system and the cost to EEI
to fix or replace these problems. He further testified that the errors
appeared to be design errors (and thus the responsibility of Benham and
Dynalogic, who performed all of the equipment design). Both Bafford and
Robert Powers, another EEI employee, testified at trial that EEI would look
to Maddox to reimburse EEI for the cost of these repairs and replacements.

The court, however, did not allow any evidence regarding specific
damages suffered by Maddox due to EEI's replacement of equipment. As part
of the final contract award, Maddox was required to post a performance
bond, through United States Fidelity and Guaranty (USF&G), of $4 million.
EEI called the bond in June 1992, and USF&G paid to EEI approximately $2.8
million. Although Maddox was fully liable to USF&G on this bond, the trial
court would not permit Maddox to introduce any testimony regarding it,
considering the evidence too prejudicial. Further, the trial court would
not let Maddox make an offer of proof on this issue.

At the close of evidence, the judge instructed the jury on

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liability. In Instruction No. 7, the judge told the jury that:

Your verdict must be for the plaintiff against the
defendant The Benham Group, Inc. if you believe:

First, plaintiff C. L. Maddox, Inc. and defendant The
Benham Group, Inc. entered into agreement for Benham to provide
engineering services; and

Second, plaintiff C. L. Maddox, Inc. performed its
obligations under that agreement; and

Third, defendant The Benham Group, Inc. failed to perform
its obligations under that agreement; and

Fourth, C. L. Maddox, Inc. was thereby damaged.

Appellant's App. at 103. Benham objected to the instruction, contending
that it was vague because it did not distinguish among the four separate
theories of breach of contract put forth by Maddox. Benham offered five
supplementary instructions, which were rejected by the court.

The jury returned a verdict in favor of Maddox and against Benham for
$5,000,100, the amount requested by Maddox during closing arguments,5 and
for Maddox and against Dynalogic in the amount of $330,000. Both Benham
and Dynalogic moved to set aside, reduce, or limit the amount of the
verdict or, in the alternative, for a new trial or judgment as a matter of
law.

The district court reduced the verdict against Benham by $1,137,000
and the verdict against Dynalogic by $330,000, which were the costs that
Maddox claimed EEI incurred in trying to remedy Benham's and Dynalogic's
deficient performances. The court noted

5
Although in its complaint Maddox sought damages of
$5,151,085, during closing argument counsel for Maddox rounded
this figure down to $5,100,000. However, he misspoke during
summation and requested that the jury return a verdict for
$5,000,100. See 21 Trial Tr. at 133.

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that "Maddox introduced no evidence during the five weeks of trial that
Maddox was damaged by the costs to EEI to replace and modify certain
equipment," Mem. & Order at 8, and thus Maddox failed to offer proof of an
essential element in a breach of contract action, see U.S. Durum Milling,
Inc. v. Frescala Foods, Inc., 785 F. Supp. 1369, 1373 (E.D. Mo. 1992)
(citing Vandever v. Junior College Dist. of Metro. Kansas City, 708 S.W.2d
711, 716 (Mo. App. 1986)) (proof of damages is an essential element in a
breach of contract case).

II. BENHAM'S APPEAL

Benham makes several arguments on appeal. Initially, Benham argues
that Maddox should not have been able to present evidence of an oral
agreement to supply bidding information to Maddox, because evidence of the
oral agreement should have been precluded by the parol evidence rule.
Alternatively, Benham argues that Plaintiff's Exhibit 135 was an
insufficient damages calculation. Further, Benham contends that the court
erred in admitting Plaintiff's Exhibit 108 (summary of delays) and
Plaintiff's Exhibit 164 (outlining design deficiencies). Benham also
contends that the court erred in not setting aside that portion of the
judgment based on Benham's failure to guard Maddox against deficiencies,
because there was no contractual duty binding Benham.

A. Bidding Errors/Design Errors/Time Delays

1. Parol Evidence Rule

Under Missouri law, which controls our analysis in this diversity
action, the parol evidence rule "is a rule of substantive law and not a
mere rule of evidence." Union Elec. Co. v. Fundways, Ltd., 886 S.W.2d 169,
170 (Mo. App. 1994). We "review the district court's interpretation of
state law de novo, giving its decision no deference." Aerotronics, Inc.
v. Pneumo Abex Corp., 62 F.3d 1053, 1059 (8th Cir. 1995).

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 The parol evidence rule prohibits evidence of prior or
contemporaneous oral agreements which vary, add to, or contradict the terms
of an unambiguous and complete contract absent fraud, common mistake, or
erroneous admission. See CIT Group/Sales Fin., Inc. v. Lark, 906 S.W.2d
865, 868 (Mo. App. 1995); Union Elec., 886 S.W.2d at 170. However,
evidence of an oral agreement that is an independent and separate agreement
will not be barred by the parol evidence rule, provided that the oral
agreement is not inherently in conflict with the written agreement. See
Spencer v. Union Pacific R.R., 916 S.W.2d 838, 840 (Mo. App. 1996); Sedalia
Merch. Bank & Trust v. Loges Farms, 740 S.W.2d 188, 193-94 (Mo. App. 1987);
see also 3 Corbin on Contracts § 594 (1960 & Supp. 1994).

Given the integration clause found in Subcontract ¶ 7.5.1, it is
evident that the parties intended the subcontract to be a complete
expression of their intentions. However, we conclude that evidence of the
prior oral agreement was admissible at trial, because the oral agreement
was a wholly separate and independent contract that did not inherently
conflict with the written agreement.

We begin by looking at the underlying substance of the transaction.
Although the written contract was predated to June 1, it was only signed
in mid-September. By this time, the oral contract for bidding services had
already been entered into, executed, and paid for.6 Thus, the oral
agreement can be characterized as a separate agreement, a stand-alone
contract that was bargained and paid for by Maddox.

6
According to Benham's billing records, Benham submitted to
Maddox a bill of $56,772.58 on July 20, 1990, and a bill of
$627.42 on August 28, 1990, as compensation for its work under
the Preliminary Engineering Contract. See The Benham Group
Invoices, July 20, 1990 and August 28, 1990, reprinted in
Appellee's App. at 603-04.

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 That this was a separate contract is demonstrated by the testimony
of Clete Schierman. Schierman, who, as noted above, was a senior engineer
at Benham working on this project, testified that in return for the $58,200
payment ($57,400 was actually paid; see supra note 6), "it was the job of
the Benham Group . . . to prepare the study, the equipment sizing, and to
supply the necessary information to Maddox, so that [Maddox] could submit
the final construction costs." 5 Trial Tr. at 13. Benham provided
services, and they were compensated in return for their efforts. Under
Missouri law, this constitutes a contract. See Johnson v. McDonnell
Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988).

Benham points to three facts in arguing that the oral contract was
not a separate contract but was, instead, subsumed by the written contract.
First, although the written contract was not signed until mid-September,
it was predated to June 1, 1990, before the oral contract was entered into
and executed. Second, Schierman testified that the compensation for the
written contract, set at $616,050, included the $57,400 paid for the
preliminary bidding work. This could indicate that the two agreements were
in fact parts of one contract. Finally, the integration clause stated that
the written contract "represents the entire agreement between [the parties]
and supersedes . . . prior negotiations, representations or agreements."
Subcontract ¶ 7.5.1, reprinted in Appellant's App. at 187.

We disagree with Benham. Where the parties bargain for a contract,
payment on that contract is made, and the contract is fully performed, we
have little difficulty in concluding that the parties intended this
interaction to constitute a separate contract. Benham would impermissibly
elevate form over substance, which we are not willing to do.

Nor does the substance of the oral agreement inherently contradict
the written agreement. Although ¶ 3.4 of the written

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contract provided that Maddox "shall furnish all cost estimating services
required for the Project," this contract was titled "Agreement--Final
Design." As this contract was signed two months after Maddox's bid was
prepared and accepted, it is reasonable to assume that the parties might
adopt a different arrangement for preliminary engineering services, such
as preparing an initial bid for the project. Thus, there is no inherent
contradiction here.

Because the oral agreement represents a wholly separate agreement
from the written contract and does not inherently contradict the September
agreement, the parol evidence rule is not applicable in this case. See
Spencer, 916 S.W.2d at 840. Evidence of the oral agreement was properly
before the jury.

2. Implied Warranty

Benham next contends that, even if the oral agreement is viewed as
a separate contract, Maddox cannot recover under a contract theory of
damages for the bidding errors because Benham never warranted the accuracy
of the bidding information.

Under Missouri law, when a company represents itself as being able
to do work of a particular character, a warranty is implied that the work
will be performed properly. See Biggerstaff v. Nance, 769 S.W.2d 470, 473
(Mo. App. 1989); Crank v. Firestone Tire & Rubber Co., 692 S.W.2d 397, 401
(Mo. App. 1985). In this case, Benham repeatedly assured Maddox and EEI
that it was well qualified to do the work and that it had the manpower and
expertise to do the work. Curt Maddox testified that the only way Maddox
would have bid on the project was to rely on the bidding information
supplied by Benham, because only Benham knew precisely what was going to
be designed. 12 Trial Tr. at 91-93. Under Missouri law, these assurances
created an implied warranty, allowing liability for the bidding errors.
See Biggerstaff, 769 S.W.2d at 473.

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3. Admission of Plaintiff's Exhibits

Benham next contends that Plaintiff's Revised Exhibit 135,7 a
document created by Curt Maddox detailing the damages caused by the bidding
errors, should have been inadmissible as hearsay. Maddox counters that the
exhibit, which was a summary of business records, was admissible under Rule
1006 of the Federal Rules of Evidence. We review the district court's
admission of evidence for abuse of discretion. See Firemen's Fund Ins. Co.
8
v. Thien, 63 F.3d 754, 757 (8th Cir. 1995).

Under Rule 1006, the "contents of voluminous writings . . . which
cannot conveniently be examined in court may be presented in the form of
a chart, summary, or calculation." Fed. R. Evid. 1006. In this case,
Exhibit 135 was based on information from corporate

7
Plaintiff's Revised Exhibit 135 reads as follows:

DAMAGES DUE TO ENGINEERING ERRORS/TIME DELAYS/ESTIMATES

1. ELECTRICAL - LABOR 1,090,040.04
2. MECHANICAL/STRUCTURAL 835,832.36
3. MANAGEMENT/CLERICAL 79,224.00
4. MATERIALS 357,139.72
5. TRUCKS 7,200.00
6. EQUIPMENT 113,660.00
7. SMALL TOOLS 56,640.57
8. FUELS 3,500.00
9. PREMIUM FOR FABRICATION 63,587.00
10. COLD WEATHER PROTECTION 21,175.00
11. OFFICE SUPPORT & SUPPLIES 6,790.00
12. BANKING INTEREST 111,929.29

TOTAL DAMAGES: $ 2,746,717.98
8
Benham also contends that the district court erred in
admitting two of Maddox's liability exhibits: Plaintiff's Exhibit
108, documenting the delay claims by showing when drawings were
furnished by Benham, and Plaintiff's Exhibit 163, a list of 101
design deficiencies noted by Maddox. Having reviewed Benham's
arguments, we conclude that the admission of these documents was
not an abuse of discretion. See Firemen's Fund, 63 F.3d at 757
(standard of review).

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records, including computer runs that were themselves introduced at trial.
Further, as required by Rule 1006, all of the underlying information was
available to Benham. The trial court did not abuse its discretion by
admitting this evidence.9

4. Certainty of Damages

Finally, Benham contends that the evidence presented at trial is
insufficient to prove damages with the requisite degree of certainty. In
Missouri, "damages need not be established with absolute certainty, but
reasonable certainty is still required as to both existence and amount [of
damages]." Aluminum Prods. Enters. v. Fuhrmann Tooling & Mfg. Co., 758
S.W.2d 119, 121 (Mo. App. 1988) (quoting Haggard v. Mid-States Metal Lines,
Inc., 591 S.W.2d 71, 77 (Mo. App. 1979)). A party attempting to prove
damages need only place before the jury "the relevant facts tending to show
the extent of damages," enabling the jury "to make an intelligent estimate
of [damages] as circumstances of the case will admit." Morris v. Perkins
Chevrolet, Inc., 663 S.W.2d 785, 788 (Mo. App. 1984) (quoting Truck Ins.
Exch. v. Bill Rodekoph Motors, Inc., 623 S.W.2d 612, 614 (Mo. App. 1981)).

In this case, Maddox placed before the jury evidence of damages with
particular clarity. Exhibit 135, and the underlying testimony supporting
it, was broken down in great detail. Curt Maddox not only gave an overall
damages estimate, but he broke down this estimate into its component parts.
For example, testimony was

9
In any event, even were the admission of Exhibit 135 to be
an abuse of discretion, the error would most certainly be
harmless. All of the information contained in Exhibit 135 was
presented to the jury, in exhaustive detail, by Curt Maddox over
the course of two days of testimony. Most of this testimony was
not objected to, and where Benham did object, such damages data
was removed from Exhibit 135 before the exhibit was submitted to
the jury. Further, Benham does not challenge this underlying
testimony on appeal. Because the substance of Exhibit 135 was
properly before the jury, an error in the admission of the
exhibit itself is harmless.

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heard regarding the extra expenses for "electrical-labor,"
"mechanical/structural," "management/clerical," "materials," and the like.

Curt Maddox also testified, again in great detail, how he arrived at
each of the component damages figures. For example, on the
mechanical/structural damages, Maddox testified:

I took information from corporate records, some being
which are the exhibits, the computer runs, and did quantity
material takeoff and labor takeoff, takeoff being counting
materials or labor hours. I took the total man-hours, labor,
equipment, materials purchased on the project, including all
the extras, the entire job, entire project, and with a little
math I took the number that represented overruns excluding
extras. I took the overruns on the project and subtracted
those overrun quantities from the actual total job expense.

I took the estimates provided by The Benham Group and
used that in the math solution and came up with the balance of
damages attributed to the deficiencies of Benham over and above
our contract and quantities and expectations from The Benham
Group.

Testimony of Curt Maddox, 11 Trial Tr. at 6-7. Maddox introduced more than
sufficient evidence to enable the jury "to make an intelligent estimate of
[damages] as circumstances of the case will admit." Morris, 663 S.W.2d at
788 (quoting Truck Ins. Exch., 623 S.W.2d at 614). Therefore, Maddox
proved damages of $2,746,717.98 with the requisite certainty.

Although not clearly enunciated, Benham also seems to challenge the
sufficiency of the evidence supporting the jury's verdict, arguing that the
jury should not have credited the evidence put forth by Maddox. Although
certainty of damages and sufficiency of evidence are two very closely
related issues, they are analytically distinct, and this case forces us to
address each issue separately.

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 We review jury findings under a highly deferential standard. We
resolve all conflicts in favor of Maddox, giving it the benefit of all
reasonable inferences and assuming as true all facts supporting Maddox
which the evidence tended to prove. We will affirm the jury's findings if
a reasonable jury could differ as to the conclusions to be drawn. See
Triton Corp. v. Hardrives, Inc., ___ F.3d ___, 1996 WL 288047, at *1 (8th
Cir. June 3, 1996). Mindful of the deferential standard of review and the
mountain of credible evidence presented by both sides, we cannot say that
the jury's verdict was unsupported by the record. Benham's contention
fails.

B. Failure To Guard

During trial, Maddox presented evidence that it was damaged in an
amount of $5,151,085. Of this amount, Maddox acknowledged that
approximately $1.2 million worth of damages was due to errors by Maddox or
EEI. See Maddox's Closing Argument, 21 Trial Tr. at 57-58; see also
Plaintiff's Preliminary Damage Ex. 173, reprinted in Appellant's App. at
406. Nevertheless, Maddox argued during closing argument that Benham was
liable to Maddox in this amount, because ¶ 2.1.6 of the contract required
Benham to guard Maddox against Maddox's own deficiencies. Whether the
contract placed this duty upon Benham is an issue of law, see Anchor Centre
Partners v. Mercantile Bank, 803 S.W.2d 23, 32 (Mo. banc 1991)
(construction of a written contract is a question of law, not fact), and
thus we review this construction de novo, see Frank B. Hall & Co. v.
Alexander & Alexander, Inc., 974 F.2d 1020, 1023 (8th Cir. 1992).

Pursuant to ¶ 2.1.6 of the subcontract, Benham "shall keep [Maddox]
informed of the progress and quality of the Work, and shall endeavor to
guard [Maddox] against defects and designs in the Work of [Maddox]."
Appellant's App. at 184. If this were the only provision in the contract
dealing with a duty to guard, we might

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agree with Maddox. However, this provision must be read in conjunction
with ¶ 2.1.7, which reads:

[Benham] shall not have control or charge of and shall
not be responsible for construction means, methods, techniques,
sequences or procedures . . . for the acts or omissions of
[Maddox], [Maddox's] subcontractors or any other persons
performing any of the Work, or for the failure of any of them
to carry out the Work in accordance with the Construction
Documents.

Id. (emphasis added).

Given the language of ¶ 2.1.7, it is difficult to interpret ¶ 2.1.6
as shifting to Benham the risk that Maddox would not properly perform its
obligations under its contract with EEI. Specifically, ¶ 2.1.7 is clear
that Benham is not responsible for the acts or omissions of Maddox, nor is
Benham responsible for the failure of Maddox to carry out its work in
accordance with the construction plans. Benham simply has no duty under
the contract to act as insurance against Maddox's own carelessness.

This reading of ¶ 2.1.7 does not, as Maddox suggests, render ¶ 2.1.6
inoperative. Paragraph 2.1.6 does place a duty on Benham, namely the duty
to visit the work site and make recommendations to Maddox. What this
paragraph does not do is place on Benham the further duty to guarantee that
Maddox will not make any errors. Thus, the two provisions can co-exist, and
giving effect to one does not render the other inoperative. In this case,
giving proper effect to ¶ 2.1.7 requires that we reverse the jury's award
of $1,267,367.02 to Maddox.

C. Instructional Errors

Benham next contends that Instruction No. 7, used by the district
court to instruct the jury on breach of contract, was inadequate. Benham
argues that the instruction, insofar as it did

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not distinguish between Maddox's four distinct theories of breach, namely
late drawings, errors in drawings, errors in bidding information, and
failure to guard, did not give reasonable guidance to the jury.10

The purpose of instructing the jury is to focus attention on the
essential issues of the case. The district court has broad discretion
to instruct the jury in the form and language it considers fair and
adequate to present the substantive law. See Hastings v. Boston Mut. Life
Ins. Co., 975 F.2d 506, 510 (8th Cir. 1992). We review only for abuse of
discretion, see United States v. Parker, 32 F.3d 395, 400 (8th Cir. 1994),
and we will reverse "only if we find that, when viewed in their entirety,
the jury instructions contained an error or errors that affected the
substantial rights of the party." Hastings, 975 F.2d at 510.

The instruction is a proper statement of the law of breach of

10
Maddox first contends that we should review only for plain
error, because Benham's objection to the instruction did not
specifically alert the judge to its vagueness challenge. In
order to preserve for appeal a claim that a jury instruction was
erroneous, a party must "object to the instruction or in some way
alert the district court to a potential error before submission
to the jury." Lear v. Equitable Life Assurance Soc'y of United
States, 798 F.2d 1128, 1133 (8th Cir. 1986), cert. denied, 479
U.S. 1066 (1987). However, a mere formal objection which does
not "sufficiently bring into focus the precise nature of the
alleged error," Christinson v. Big Stone County Co-Op, 13 F.3d
1178, 1181 (8th Cir. 1994), will not preserve the issue for
appeal. Id. The rationale for this rule is clear: if the charge
is indeed erroneous, it is far more efficient if the district
court can correct this error at the charging phase, rather than
having this Court order a new trial.

We conclude that Benham preserved this issue for appeal.
When objecting to the jury instruction, Benham did complain to
the district court that the instruction was vague. Although its
objection was somewhat convoluted, we conclude that Benham did
alert the district court to what it perceived to be error in the
instruction. See id. (issue preserved for appeal when party
alerts the district court to the nature of the error and gives
the district court a chance to explain or amend the instruction).

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contract. It sets forth clearly each element of the cause of action.
Benham does not dispute this. Rather, Benham contends that the charge is
vague because it does not distinguish among Maddox's four theories of
breach. However, "[w]here the charge to the jury correctly sets forth the
law, a lack of perfect clarity will not render the charge erroneous." Roth
v. Black & Decker, U.S., Inc., 737 F.2d 779, 783 (8th Cir. 1984); see also
Hastings, 975 F.2d at 510 ("we will not find error in instructions simply
because they are . . . not a model of clarity"); Toro Co. v. R & R Prods.
Co., 787 F.2d 1208, 1215 (8th Cir. 1986) (same). Benham's contention
fails.

III. Maddox's Cross-Appeal

In its cross-appeal, Maddox contends that the judge erred when he
reduced the amount of damages awarded against Benham by $1,137,000, and
against Dynalogic by $330,000, contending both that Maddox offered proof
of damages and that the district court erred in not admitting evidence of
the performance bond. We agree with the district court that Maddox has not
demonstrated evidence of actual damages, and we affirm the reduction in
damages.

The district court's reduction of damages in this case is akin to a
partial judgment as a matter of law on that one claim. Although Maddox
asserts that the district court's action is best viewed as a remittitur,
which can only be granted when "the award is so excessive as to shock the
court's conscience," Triton, ___ F.3d at ___, 1996 WL 288047, at *4, this
ignores the substance of the district court's action. The district court
noted that its action was not a remittitur. Rather, as the district court
concluded, Maddox failed to offer sufficient proof as to one independent,
readily identifiable quantum of damages.

When it is apparent as a matter of law that certain identifiable sums
included in the verdict should not have been

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there, district courts possess the power to reduce the amount of the
verdict accordingly. See Hoover v. Valley West D M, 823 F.2d 227, 230 (8th
Cir. 1987) (district court properly reduced verdict by $17,500 because
plaintiff, as a matter of law, failed to prove damages on one independent
issue); see also 6A J. Moore, Moore's Federal Practice, ¶ 59.08[7], at 59-
201, 59-202 (2d ed. 1995) (when "there is no genuine factual issue as to
the amount of recoverable damages . . . the court has the power to order
judgment for the amount that is recoverable as a matter of law"); Wright,
Miller & Kane, Federal Practice and Procedure: Civil 2d § 2815, at 159 (2d
ed. 1995) (same). We review such a reduction of verdict as we would any
other order granting judgment as a matter of law. We will affirm the
district court's order only if a reasonable jury, viewing the evidence in
the light most favorable to the nonmovant and giving the nonmovant the
benefit of all reasonable inferences, could not draw differing conclusions
from the evidence. See Abbott v. City of Crocker, Mo., 30 F.3d 994, 997
(8th Cir. 1994).

Under Missouri law, proof of actual damages is required for a party
to recover for a breach of contract. See U.S. Durum Milling, 785 F. Supp.
at 1373 (analyzing Missouri law). It is well settled that "'contingent,
speculative, or merely possible [consequences] are not proper to be
considered by the jury in ascertaining the damages, for it would be plainly
unjust to compel one to pay damages for results that may or may not ensue
. . . .'" First Nat'l Bank v. Kansas City S. Ry., 865 S.W.2d 719, 739 (Mo.
App. 1993) (quoting Hahn v. McDowell, 349 S.W.2d 479, 482 (Mo. App. 1961)).
To recover damages, a plaintiff must make more than just a showing that
damages are "possible or even probable developments . . . ." Thienes v.
Harlin Fruit Co., 499 S.W.2d 223, 230 (Mo. App. 1973).

Maddox presented no evidence whatsoever that it actually reimbursed
EEI for the sums expended by EEI. Although Maddox

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presented evidence that EEI looked to Maddox for reimbursement,11 until
Maddox actually reimbursed EEI, it has suffered no concrete damages. For
example, should EEI have sued Maddox for these sums (rather than collecting
on the performance bond), it is conceivable that Maddox could have
interposed a successful defense against EEI and be adjudged not liable to
EEI. Until Maddox has paid the costs or has been adjudged liable for these
costs, any damages to Maddox are merely speculative and contingent, and
hence not recoverable.

Maddox counters that, had it been able to introduce evidence of the
performance bond, then there would have been sufficient evidence to enable
the jury to conclude that Maddox had been damaged. This excluded evidence
would have shown that USF&G paid $2.8 million to EEI to cover the added
costs of repair, and that Maddox was contractually liable to reimburse
USF&G. Although we will assume for the sake of argument that it was error
to disallow this evidence, we believe that any possible error was harmless.

Maddox correctly notes that USF&G acted in the role of surety, and
that Maddox was the indemnitor for USF&G. Under Missouri law, "an
indemnitor of a surety compelled to satisfy the liability of a surety is
subrogated to all rights to which the surety would have been subrogated."
Westerhold v. Carroll, 419 S.W.2d 73, 76 (Mo. 1967). Thus, Maddox argues
that it can maintain a suit against

11
Dean Bafford of EEI testified extensively as to cost to
EEI to repair defective equipment supplied to it under the
contract with Maddox. Bafford listed each piece of defective
equipment and the repair cost for each item. Later in his
testimony, Bafford noted that EEI looked to Maddox to rectify any
errors in the contract; presumably, EEI looked to Maddox to
reimburse EEI for its expenditures. For example, Bafford
testified that "[w]hen a failure occurred . . . we went to C.L.
Maddox to remedy that." 8 Trial Tr. at 98. He also noted that,
regardless of whose fault the problem was, EEI looked to Maddox
to remedy the situation. Id. at 125. This sentiment was echoed
by Robert Powers, a vice-president of EEI, who noted that EEI
held Maddox "accountable to assure that those concerns . . .
turned out to be resolved." 9 Trial Tr. at 181.

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Benham and Dynalogic because it is subrogated to all of the rights held by
USF&G, which had actually paid the repair costs.

Maddox misinterprets Missouri law. Although it has correctly quoted
Westerhold, it ignores one important fact of that case: the indemnitor had
already paid the surety, which is why subrogation was permitted. Id. This
is in accord with the long-established rule that the right of subrogation
does not accrue until the party seeking subrogation has paid the underlying
claim. See Liberty Mut. Ins. Co. v. Mercantile Home Bank & Trust Co., 241
S.W.2d 493, 496 (Mo. App. 1951); see also 73 Am. Jur. 2d Subrogation §§ 26,
30 (2d ed. 1974 & Supp. 1996); 83 C.J.S. Subrogation § 11 (1953 & Supp.
1995) ("[t]he rights of a subrogee attach at the time . . . he pays the
debt").

In this case, Maddox has offered no evidence that it has reimbursed
USF&G for the sums it expended. The evidence excluded by the district
court would not have established this either, because the offer of proof
would only have shown that USF&G considered Maddox to be liable, and not
that Maddox had been adjudged liable or actually paid the debt. See 6
Trial Tr. at 11-14. Therefore, even had the district court admitted the
evidence, Maddox would not have been able to demonstrate that it suffered
concrete damages. The district court correctly granted the reduction in
verdict.

IV. CONCLUSION

We agree with the district court that the jury's award of
$2,746,717.98 in damages to Maddox had support in the evidence. We further
agree that the overall judgment against Benham was properly reduced by
$1,137,000, and the judgment against Dynalogic was properly reduced by
$330,000, because Maddox did not offer evidence that it was damaged when
EEI had to expend money to repair defective equipment. However, we
disagree with the district court

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that Benham had contractually shifted to itself the risk that Maddox would
act deficiently, and we reduce the award against Benham by $1,267,367.02.
As a result, Benham still stands liable to Maddox in the amount of
$2,746,717.98, and Dynalogic is not liable to Maddox.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.

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