Interstate Litho Corp. v. Brown

United States Court of Appeals
For the First Circuit

No. 00-2344
No. 00-2522

INTERSTATE LITHO CORP.,

Plaintiff, Appellant,

v.

MARC A. BROWN, A/K/A MOSHE BROWN, INTEGRA TECHNICAL SERVICES, INC.,
AND FREIDEL'S MANUFACTURING, INC.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Selya, Lynch, and Lipez, Circuit Judges.

Thomas A. Tarro III, with whom Christine M. Curley was on brief,
for appellant.

Keith A. Minoff, with whom John E. Garber and Robinson Donovan
Madden & Barry, P.C., were on brief, for appellee Marc A. Brown.

Paul R. Wood, with whom James R. Miller, Matthew D. Macy, and
Miller Wood Welch, LLC, were on brief, for appellee Freidel's
Manufacturing, Inc.
July 6, 2001

-2-
 LYNCH, Circuit Judge. This commercial dispute concerns a

failed attempt by the plaintiff, Interstate Litho Corporation, to

acquire printing presses from a broker, defendant Marc A. Brown, doing

business as Integra Technical Services, Inc. Trial resulted in a jury

verdict against Interstate on its claims for return of a portion of its

deposit from the seller of one press, defendant Freidel's

Manufacturing, Inc., and for Brown on his counterclaims seeking lost

profits on the deal. On appeal, Interstate argues that: (1) Brown

lacked the capacity to sue because Integra had been dissolved at the

time of the transactions at issue; (2) the purported contract with

Brown for purchase of the presses was invalid; (3) its deposit to

secure the presses was refundable; and (4) the award of lost profits

resulted from flawed jury instructions and was not supported by the

evidence. We affirm the judgment, and we grant Freidel's motion, but

deny Brown's motion, for attorney's fees and double costs against

Interstate.

I.

In 1995, Interstate Litho Corporation engaged in

negotiations with Marc A. Brown, a broker in used printing

equipment, and his company, Integra Technical Services,

concerning Interstate’s potential acquisition of two used

printing presses. One press, an eight color press, was owned by

-3-
Freidel’s Manufacturing, Inc. of Illinois; the other, a four

color press, was owned by Graphic Engineering and located in

Malaysia. The two presses were to be refurbished in Rhode

Island by E.R. Smith Associates to Interstate’s specifications.

Several proposals were prepared, and finally a proposal

reflecting a $2.6 million price was signed by Henry Becker,

Interstate’s President, on August 25, 1995. At Brown's

instructions, Interstate advanced a $75,000 deposit to ensure

that the presses would be held. Fifty thousand dollars of the

deposit was wired to Freidel's on August 29, 1995, to secure the

eight color press; the remaining $25,000 was sent to Brown in

his capacity as Integra's principal (of which $15,000 was

forwarded to John Dulla, a broker assisting Brown with the

purchase of a second press, the remainder staying with Brown).

Freidel's pulled the eight color press off the market, turning

away other prospective buyers. On September 27, 1995, Brown

signed a contract to buy the eight color press from Freidel's.

However, Brown never purchased the press from Freidel's because

the deal with Interstate fell apart. Freidel's retained the

-4-
deposit and eventually sold the press for less than it would

have received from Brown.1

Interstate then sued Brown, Integra, and Freidel's,

seeking the return of its $75,000 deposit. Integra

counterclaimed for its lost commissions and profits on the deal,

asserting claims against Interstate for breach of contract,

fraud, and violation of Mass. Gen. Laws ch. 93A. Cross-motions

for summary judgment were filed by the parties. Brown argued

that Interstate had failed to provide evidence to allow a jury

to pierce the corporate veil and hold him personally liable as

an officer of Integra. Brown asserted that at all times he had

acted in his representative capacity as an agent of Integra and

that nothing in the record indicated otherwise. Interstate

initially opposed Brown's summary judgment motion on the grounds

that there was sufficient evidence that Brown, as Integra's only

shareholder, officer, and director, had pervasive control over

the corporation, and that Brown maintained no separation between

1
According to Freidel's, when it later attempted to make
a deal with Interstate for the sale of the eight color press, it
was informed that Interstate had already fulfilled its need.

-5-
the corporation and his home, where the corporation exclusively

operated.

Interstate subsequently learned that Integra had been

dissolved by the State of New Hampshire as of November 1, 1993,

for failure to file reports and pay necessary fees. Interstate

argued that because Brown had held himself out and solicited

business under Integra's name after the corporation had been

dissolved, Brown was personally liable as to Interstate's claims

against Integra. Interstate also maintained that Integra had no

capacity to assert any counterclaims against it.

In response, Brown sought leave to amend his

counterclaims and substitute himself personally for Integra as

the real party in interest.2 Brown recalled receiving letters

from the corporate division of New Hampshire's Department of

State, but believed he had taken the necessary steps to prevent

dissolution. He said that he was not aware of Integra's

dissolution at the time of the transactions at issue and did not

2
Brown also sought leave to amend the counterclaims to
add further allegations under Mass. Gen. Laws ch. 93A based on
Interstate's conduct in the transaction and Interstate's
allegations of forgery by Brown.

-6-
learn about the dissolution until Interstate raised the issue on

summary judgment.

The district court denied all the summary judgment

motions as well as Brown's motion to amend and substitute

himself personally for Integra. However, upon motion for

reconsideration, the court allowed Brown's motion to amend and

substitute himself as the real party in interest.

At trial, Interstate's principal claim was that Becker

had not signed the purported contract for the sale of the

presses. There was a battle of handwriting experts, and the

jury rejected Interstate’s suggestion that Becker's signature

had been forged. Answering three special interrogatories, the

jury rejected Interstate’s claim for the return of the deposit

and awarded Brown $187,500 on his counterclaim; the $50,000

portion of the deposit thus remained with Freidel's.

Specifically, the jury determined that: (1) Marc A. Brown d/b/a

Integra and Interstate Litho did not form a contract providing

that monies paid by Interstate as a deposit were refundable; (2)

Freidel's did not have money in its hands belonging to

Interstate that in equity and good conscience it ought to pay

back to Interstate; and (3) Interstate was in breach of its

-7-
contract with Brown for the sale of two printing presses.

Interstate's motion for a new trial was denied.

II.

Interstate appeals, raising a plethora of arguments,

many addressed to the district court’s pre-trial and post-trial

rulings.3 Most of those issues are subsumed into the contract

questions submitted to the jury.4 Interstate initially makes

related arguments as to capacity to sue: that Brown should not

have been substituted for Integra as a counterclaim plaintiff

and that there was no valid and enforceable contract between

Brown and Interstate because Integra's dissolution rendered any

subsequent contract with Interstate void. Interstate also

argues that there was no enforceable contract because the

purported contract -- the August 25, 1995 proposal signed by

3
Brown has not appealed the district court's denial of
his Chapter 93A claim.
4
Interstate also made claims against Brown and Freidel's
in equity, unjust enrichment, and conversion. Interstate failed
to preserve those claims below against Brown; and, in all
events, the jury verdict would seem dispositive of their merits.
Interstate's conversion claim against Freidel's has been waived
on appeal; its claims against Freidel's in equity and unjust
enrichment, which were rejected by the jury, are discussed
below.

-8-
Interstate -- did not contain the contract's essential terms,

failed to comply with the statute of frauds, and could not have

been performed by Brown. In addition, Interstate maintains that

there was insufficient evidence for the jury to reject its claim

for return of its $75,000 deposit.

As to damages, Interstate argues that Brown's damage

award cannot stand because it was based on speculation, not

facts in evidence, and because the district court failed to

properly instruct the jury in this regard.

Freidel's has filed a motion for attorney's fees and

double costs on the ground that Interstate's appeal was

frivolous. Brown has filed a similar motion. Interstate has

filed oppositions to both motions.

The parties agree that Massachusetts law applies.

A. Capacity to Sue

Interstate on appeal makes a series of arguments about

capacity to sue. In doing so, it confuses two issues. The

first issue is whether the district court abused its discretion

by allowing the motion to amend in order to substitute Brown for

Integra. The second issue is whether, given that the amendment

was allowed, Brown properly stood in Integra's shoes as a matter

-9-
of fact. As to the second issue, it has been waived because

Interstate failed to make it an issue before the jury.

On the first issue, we review the allowance or denial

of motions to amend the pleadings for abuse of discretion. See

Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 250 n.11 (1st

Cir. 1997); Resolution Trust Corp. v. Gold, 30 F.3d 251, 253

(1st Cir. 1994).5 Motions for leave to amend "shall be freely

given when justice so requires." Fed. R. Civ. P. 15(a); see

also Resolution Trust, 30 F.3d at 253 ("Leave to amend is to be

freely given, unless it would be futile, or reward, inter alia,

undue or intended delay.") (internal quotation marks and

citations omitted). Here, Brown sought to substitute himself

personally for Integra on the ground that he was the real party

in interest, Integra having been dissolved by operation of law

before the events in issue. See Fed. R. Civ. P. 17(a) ("Every

action shall be prosecuted in the name of the real party in

interest."). Brown maintained that at all times relevant he was

5
When, as here, such motion was not filed until after
a party has moved for summary judgment, the movant must
demonstrate that the proposed amendments are supported by
"substantial and convincing evidence." Resolution Trust, 30
F.3d at 253.

-10-
Integra's sole officer, employee, and shareholder, and that he

participated personally and directly in all transactions with

Interstate.

The district court had before it conflicting accounts

of the events surrounding Integra's dissolution. Interstate

said Brown knew or should have known that Integra had already

been dissolved for almost two years when it entered into

discussions about the presses; Brown claimed that he believed

Integra had complied with New Hampshire's requirements on

reporting and filing fees, and that he was a real party in

interest. The court could easily have concluded that Brown had

more than a colorable claim, and it had evidentiary support for

that conclusion. As a counterclaim plaintiff, Brown appeared to

have the requisite stake. See Seckler v. Star Enter., 124 F.3d

1399, 1406 (11th Cir. 1997) ("In order for [plaintiff] to

demonstrate that he is a real party in interest, [he] must

allege facts sufficient to reveal that he suffered an injury,

that the injury was caused by the defendant's illegal conduct,

and that his injury could be redressed by a favorable outcome to

the lawsuit.").

-11-
 Brown also was substituted as a defendant, and this

benefitted Interstate; Interstate now had a live person, and not

a defunct corporation, to answer for any judgment it obtained.

Interstate attacks the allowance of the substitution motion, but

it does not identify any prejudice resulting from that decision.

Indeed, Interstate's trial preparation on the merits issues

could hardly have been much different given its view, expressed

in its opposition to Brown's motion for summary judgment, that

Brown was Integra's alter ego. The trial court properly

concluded that it was in the interests of justice for Brown to

be substituted as the formal party in the pleadings. See Fed.

R. Civ. P. 17 advisory committee's note (1966 Amendment)

("Modern decisions are inclined to be lenient when an honest

mistake has been made in choosing the party in whose name the

action is to be filed . . . .").

Following the district court's decision to allow

Brown's motion to amend and substitute, any questions as to

whether Brown was indeed a proper party to the purported

contract with Interstate were questions of fact for the jury.

See Assocs. Discount Corp. v. Haynes Garage, Inc., 24 N.E.2d

685, 687-88 (Mass. 1939) (question of who contracting parties

-12-
were is question of fact) (citing Lunn & Sweet Co. v. Wolfman,

152 N.E. 893, 894-95 (Mass. 1926)). If, after the substitution,

Interstate wanted to challenge Brown’s capacity to sue or raise

any issue of fraudulent concealment by Brown of Integra's

dissolved status, it should have done so before the jury.

Interstate did not. Rather, its focus at trial was solely on

other matters: contesting Brown's claim that Becker had signed

the August 25, 1995 proposal; trying to prove the $75,000

deposit was refundable; and challenging Brown's own claims for

damages.6 Interstate may not now pursue these claims about

capacity to sue on appeal.

B. Brown’s Counterclaim For Breach of Contract

Interstate challenges the jury's verdict on Brown's

counterclaims for breach of contract to purchase the two

presses. There could be no contract between Interstate and

6
Interstate, moreover, did not object to special
questions identifying Brown "d/b/a Integra Technical Services"
as the counterclaimant.

-13-
Brown d/b/a Integra as a matter of law, Interstate argues,7

because:

1. The essential terms were missing from the purported contract

-- the August 25, 1995 proposal.

2. The proposal did not satisfy the statute of frauds.

3. The proposal was invalid because Brown was incapable of

delivering the two presses.

Interstate also seeks the return of its $75,000

deposit, arguing that there was an express oral agreement with

Brown that the deposit was refundable. In addition, Interstate

argues that Freidel's should return the $50,000 portion of the

deposit it retained under the law of equity and unjust

enrichment. The trial court erred, Interstate says, in not

granting it judgment as a matter of law at the close of evidence

and after the jury's verdict. See Fed. R. Civ. P. 50(b).8

7
Interstate also argues that because Integra no longer
existed as of the time of the purported contract with Interstate
-- the August 25, 1995 proposal -- Integra could not legally
enter into any such contract. We have disposed of this
argument.
8
Although Interstate also challenges the district
court's earlier denial of its motion for summary judgment on
Brown's counterclaims based on Integra's lack of corporate
capacity, the proper redress is not through appeal of that

-14-
 This court reviews de novo the denial of a motion for

judgment as a matter of law using the same standard applied by

the trial court. Andrade v. Jamestown Hous. Auth., 82 F.3d

1179, 1186 (1st Cir. 1996). Such motion may be granted only if

"the evidence, viewed from the perspective most favorable to the

non-movant, is so one-sided that the movant is plainly entitled

to judgment, for reasonable minds could not differ as to the

outcome." FHS Props. Ltd. v. BC Assocs., 175 F.3d 81, 85 (1st

Cir. 1999) (quoting Gibson v. City of Cranston, 37 F.3d 731, 735

(1st Cir. 1994)).

1. Essential Terms of Contract Were Provided

The evidence was such that whether the August 25, 1995

proposal contained the essential terms of a contract was an

issue of fact for the jury. The writing between the parties

identified in detail the two presses being purchased, identified

denial but through subsequent motion for judgment as a matter of
law, and then through appellate review if that later motion is
denied by the trial court. See, e.g., Whalen v. Unit Rig, Inc.,
974 F.2d 1248, 1251 (10th Cir. 1992); see also Locricchio v.
Legal Servs. Corp., 833 F.2d 1352, 1358-59 (9th Cir. 1987).
While Interstate raised the issue of lack of capacity to sue in
its Rule 50(b) motion, that argument was properly rejected by
the district court given Interstate's failure to present any
evidence to the jury on what ultimately boiled down to issues of
fact.

-15-
a total price for purchasing and reworking the presses ($2.6

million, with $900,000 of this amount allocated to acquiring the

two presses), and set forth a detailed delivery and payment

schedule.

Interstate argues, inter alia, that the proposal neither

states that it is a final agreement for purchase of the two presses by

Interstate from Integra nor provides in specific terms the completion

date for refurbishment of the presses. However, "[i]t is not required

that all terms of the agreement be precisely specified, and the

presence of undefined or unspecified terms will not necessarily

preclude the formation of a binding contract." Situation Mgmt. Sys.

v. Malouf, Inc., 724 N.E.2d 699, 703 (Mass. 2000). Here, the terms of

the proposal -- which include nine pages of nitty-gritty detail on

matters such as rollers and hangers, plate and blanket cylinders, and

ink fountains -- were sufficient for the jury to find that Interstate

had agreed to purchase the two presses. That Interstate wired

$75,000 ($50,000 to Freidel's and $25,000 to Brown) to hold the

presses on August 29, just a few days after signing the

proposal, further supports the existence of a firm agreement

between the parties. We cannot conclude as a matter of law

that this contract lacked essential terms.

2. Statute of Frauds

-16-
 Interstate argues that the proposal does not satisfy

the Massachusetts Statute of Frauds, Mass. Gen. Laws ch. 106, §

2-201(1), because the August 25, 1995 proposal, though a

writing, describes only the remanufacturing portion of the deal,

and not the terms of the actual purchase of the two presses by

Integra, for subsequent sale to Interstate. There was, however,

no reason the proposal had to describe the details of Brown's

own purchase of the eight color press from Freidel's or the four

color press from Malaysia. Indeed, the important questions for

a buyer like Interstate would, presumably, have centered on

whether the refurbished presses met its needs and

specifications, and not on the background details of how the

broker (Brown) obtained those presses from third parties. As

Brown himself testified, his initial acquisition of the presses

was accomplished through transactions separate and distinct from

the sale of the refurbished presses to Interstate. Thus the

issue, properly presented to the jury, was whether the August

25, 1995 proposal constituted an agreement by Interstate to

purchase the two presses from Brown. The jury found that it

did, and so the proposal was a writing in satisfaction of the

Statute of Frauds.

-17-
3. Brown Could Have Delivered the Two Presses

Interstate also challenges the validity of the contract

on the ground that Brown was incapable of delivering the two

presses when Interstate signed the August 25, 1995 proposal.

See Doyle v. Hasbro, Inc., 103 F.3d 186, 194 (1st Cir. 1996)

(plaintiff must be ready, willing, and able to perform to

sustain breach of contract claim); Singarella v. City of Boston,

173 N.E.2d 290, 291 (Mass. 1961). Again, this issue was for the

jury.

Interstate argues that there was no evidence of any

agreement to purchase the four color press from Malaysia, that

Integra had not yet entered into an agreement to purchase the

eight color press from Freidel's, and that Integra had not

entered into any agreement with E.R. Smith for refurbishing the

two presses. In fact, there was sufficient evidence for the

jury to conclude that a deal was in the works and that Brown

could have delivered the two refurbished presses to Interstate.

Brown testified to his extensive efforts to locate and hold the

presses, one of which had already been secured from Freidel's

(hence the need for the $50,000 deposit). Dulla testified about

his efforts to obtain a second press in Malaysia, which was

-18-
corroborated by his correspondence with the owner of the

Malaysian press about price, shipping arrangements, and the

like. Brown also testified that he had a verbal agreement with

E.R. Smith to refurbish the two presses to Interstate's

specifications, based on discussions and meetings with

representatives of E.R. Smith and Interstate. Brown did not

need fully executed written contracts with each of the parties

he was dealing with on the Interstate project. Indeed, there

was evidence that it was customary not to have such contracts in

these types of deals. Whether Brown could have performed under

the contract was for the jury to decide.

4. Whether the Deposit was Refundable

Interstate seeks the return of its $75,000 deposit,

arguing that there was an express oral agreement with Brown that

the deposit was refundable.9 The jury rejected this claim.

Brown testified that he told Interstate's Becker, before Becker

paid the deposit, that the deposit was not refundable. Brown's

testimony was supported by the testimony of Daniel Freidel,

9
Interstate's argument that Freidel's cannot keep its
portion of the deposit ($50,000) under the law of equity and
unjust enrichment is addressed below in our discussion of
Freidel's motion for attorney's fees and double costs.

-19-
Freidel's president, and John Dulla that Freidel's needed a

deposit from Brown to hold the eight color press. That

Freidel's took the press off the market in exchange for the

deposit, a fact not disputed at trial, further supported the

jury's determination. There is no reason to disturb the jury's

finding on this claim.

C. Damages: Jury Instructions and Evidence

Interstate argues that the court erred in rejecting its

proposed jury instruction on damages and that the evidence was

too speculative to support the jury's damage award. Interstate

requests a new trial or a remititur.

1. Jury Instructions

The trial court instructed the jury that:

If you find that . . . [Brown and Integra] are
entitled to recover, recover under the counterclaim,
then you are to award as damages a sum of money that
will fully and fairly compensate Mr. Brown for what he
would have received in income if the contract had not
been breached.
Interstate asked for a specific instruction that the jury should

not speculate and that the loss should be foreseeable and

calculated with reasonable certainty.10 The trial court said its

10
See, e.g., Knapp Shoes, Inc. v. Sylvania Shoe Mfg.
Corp., 72 F.3d 190, 204 (1st Cir. 1995) (citing Matsushita Elec.

-20-
instruction essentially amounted to the same thing. At that

point, Interstate neither disagreed with the judge that the

essence of the instruction had in fact not been given nor

pressed its objection. We are doubtful that Interstate

adequately gave the trial judge notice and preserved its

objection. See Fed. R. Civ. P. 51; see also Elgabri v. Lekas,

964 F.2d 1255, 1258-59 (1st Cir. 1992). Moreover, the issue

with respect to lost profits in this case, as explained more

fully below, was not whether the jury would improperly speculate

in awarding a sum based on its projections from data in

evidence, but rather whether it believed Brown had agreements in

place for commissions on the deal, ultimately a credibility

question not open to any such speculation. A trial judge, who

possesses particular insight into the main issues in a case,

does not have an obligation to instruct a jury on every nuance

of a party's claim or defense.11 Given that the wording of

Corp. v. Sonus Corp., 284 N.E.2d 880, 890 (Mass. 1972)); see
also Augiat, Inc. v. Aegis, Inc., 631 N.E.2d 995, 997-98 (Mass.
1994) ("Damages for lost profits are recoverable only when proof
is made with sufficient certainty.") (internal quotation marks
omitted).
11
See, e.g., Elliot v. S.D. Warren Co., 134 F.3d 1, 6
(1st Cir. 1998) ("A trial court is obliged to inform the jury

-21-
instructions is within the trial judge's discretion, and given

that here the trial judge could reasonably have understood that

Interstate agreed that his instruction covered the lost profits

issue, we find no error.

2. Evidence

Interstate argues that the damage award is inconsistent

with the evidence and must have been based on pure conjecture.

On this basis, Interstate argues, the district court erred in

failing to grant a new trial or remititur.

A motion for a new trial requires a finding that "the

verdict is so seriously mistaken, so clearly against the law or

the evidence, as to constitute a miscarriage of justice."

Transamerica Premier Ins. v. Ober, 107 F.3d 925, 929 (1st Cir.

1997) (internal quotation marks omitted). We review the

about the applicable law, but, within wide limits, the method
and manner in which the judge carries out this obligation is
left to his or her discretion."); see also United States v.
Paniagua-Ramos, 251 F.3d 242, 245 (1st Cir. 2001) ("The primary
function of a trial court's instructions is to create a roadmap
for the jurors, limning those legal rules that they must follow
in finding the facts and determining the issues in a given case.
For the most part, the law provides no set formulae for
converting these legal rules into lay language -- and the choice
of what words are to be spoken belongs, within wide margins, to
the trial judge.").

-22-
district court's denial of a new trial motion for abuse of

discretion. See FHS Props., 175 F.3d at 87.

Interstate argues, inter alia, that Brown's testimony

as to acquisition costs and mark-up on the two presses was not

supported by the evidence and also did not make allowance for

the costs of transporting the presses. There was also no

evidence, Interstate contends, that Brown had the ability to

procure the four color press from Malaysia, as there was no

signed agreement for the purchase of this press. However, the

jury was entitled, on the evidence, to find to the contrary.

Correspondence with the owner of the four color press as to

pricing, shipping, and other basic contractual provisions was in

evidence. Two other witnesses supported Brown’s testimony that

he had made the necessary arrangements and that the deal

foundered on Interstate’s failure to pay.

Brown testified as to the compensation he expected to

receive: ten percent of E.R. Smith's $1.7 million price to

refurbish the two presses ($170,000), plus half of the mark-up

cost of $225,000 for acquisition of the two presses ($112,500),

for a total of $282,500. From this Brown subtracted the $10,000

he had retained from the $75,000 deposit and requested a total

-23-
of $272,500. The jury awarded him $187,500.12 Interstate

presented no reason not to credit Brown's testimony, and that

testimony supplied an adequate basis for the jury's damage

award. Cf. Knightsbridge Marketing Servs. v. Promociones y

Proyectos, S.A., 728 F.2d 572, 575 (1st Cir. 1984) ("The

prospective profits need not be proved with mathematical

accuracy; the plaintiff need only show by reasonable proof that

he has lost profits.") (citation and internal quotation marks

omitted).13

Interstate also argues that it cannot be held liable

for payments Brown would have received from others, but that

argument finds no support in the law. A seller may recover lost

profits that he would have made had the buyer performed under

the contract. See Mass. Gen. Laws ch. 106, § 2-708(2); Cesco

Mfg. Corp. v. Norcross, Inc., 391 N.E.2d 270, 274 (Mass. App.

12
Brown surmises that the jury misunderstood that the
$10,000 came out of the $75,000 deposit and was not on top of
it, and that the jury then subtracted $85,000 from the requested
$272,500 to award him a total of $187,500.
13
We also reject Interstate's appellate challenge to the
admission of Brown's testimony about how he was to be
compensated. Brown testified to his personal knowledge of
compensation arrangements. It was well within the trial judge's
discretion to admit that testimony.

-24-
Ct. 1979). Where a middleman broker is involved, and the buyer

is in breach, the broker’s damages may be measured by his lost

profits. See 67A Am. Jur. 2d, Sales § 1129 (2d ed. 1985 and

Supp. 2000) ("The Uniform Commercial Code follows the view that

a . . . middleman should have as a measure of damages his lost

profits where the buyer has breached."); see also TCP Indus.,

Inc. v. Uniroyal, Inc., 661 F.2d 542, 552 (6th Cir. 1981)

(explaining the rationale for the rule under Michigan law). The

jury's damage award stands.

D. Motions for Attorney's Fees and Double Costs.

1. Freidel's Motion

In order to prevail on appeal against Freidel's,

Interstate effectively had to show in this fact-intensive case

that no rational jury could have concluded that the $50,000

portion of the deposit paid to Freidel's was non-refundable and

that it was equitable for Freidel's to retain it. It was

undisputed at trial that Interstate knew Freidel's took the

eight color press off the market in exchange for the deposit and

suffered a detriment as a result. It was also undisputed that

Freidel's was not a party to the contract between Brown and

Interstate and had no business relationship with Interstate.

-25-
 Because Interstate's claims against Freidel's were in

equity and unjust enrichment, Interstate had to prove that

Freidel's had no right to retain the deposit, regardless of the

outcome of Interstate's underlying contract dispute with Brown.

See National Shawmut Bank v. Fidelity Mut. Ins. Co., 61 N.E.2d

18, 22 (Mass. 1945) ("The fundamental question . . . is whether

the defendant has received money which in equity and good

conscience belongs to the plaintiff."); see also Flower v.

Suburban Land Co., 123 N.E.2d 218, 221 (Mass. 1954) ("[T]he

right to recover in an action for money had and received does

not depend upon privity of contract, but on the obligation to

restore that which the law implies should be returned, where one

is unjustly enriched at another's expense.") (internal quotation

marks omitted). In light of the undisputed fact that Freidel's

conferred a benefit upon Interstate and incurred a detriment as

a result, restitution would have been improper. Cf. National

Shawmut Bank, 61 N.E.2d at 20-21.

Even the authorities Interstate cites in its brief

undermine its position, suggesting instead that Interstate must

seek recovery of its deposit from Brown, not Freidel's, because

Interstate made the deposit to Freidel's pursuant to its

-26-
agreement with Brown. See Bolen v. Paragon Plastics, 747 F.

Supp. 103, 107 (D. Mass. 1990) ("[A] person who has conferred a

benefit upon another as the performance of a contract with a

third person is not entitled to restitution from the other

merely because of the failure of performance by the third

person.") (quoting Restatement (Second) of Restitution § 115));

LaChance v. Rigoli, 91 N.E.2d 204, 205 (Mass. 1950) ("The

contracting party must look for payment to the one . . . who was

expected to pay and who in fact expected to pay or as a

reasonable man should have expected to pay."). We award

Freidel's its reasonable attorney's fees and double costs. See

Fed. R. App. P. 38; see also Toscano v. Chandris, S.A., 934 F.2d

383, 387 (1st Cir. 1991); E.H. Ashley & Co. v. Wells Fargo

Alarm Servs., 907 F.2d 1274, 1280 (1st Cir. 1990).

2. Brown's Motion

We feel differently, however, about Brown's motion for

attorney's fees and double costs. While weak, Interstate's

claims against Brown cannot be said to be frivolous.

III.

-27-
 The judgment is affirmed. Attorney's fees and double

costs to be awarded to Freidel's. Brown's motion for attorney's

fees and double costs is denied. Freidel's shall file its

attorney's fees application in accordance with Local Rule 39(b)

of the First Circuit Court of Appeals. The Clerk shall tax, in

the usual course, ordinary costs in favor of Brown and double

costs in favor of Freidel's. We retain appellate jurisdiction

for the purposes of adjudicating the attorney's fees award. So

ordered.

-28-