This is an action for breach of a contract, dated September 30, 1955, to sell', a specified lot of secondhand electric motors. Plaintiff buyer, a North Carolina, corporation, was, as its name implies, engaged in buying, selling and repairing-motors. Defendant, a citizen of Massachusetts, was a purchaser in liquidation, of a mill in Lawrence, Massachusetts and', was in the process of disposing of the-property. The mill was one of the last, in the country having 40-cycle, instead of" 60-cycle, motors. After the contract was-entered into a number of controversies arose, and on May 3, 1956 when, admittedly, delivery was in arrears, the parties, entered into a further agreement, involving other motors. (For convenience, although perhaps inaccurately, we will call this the second contract.) Defendant contends that this was in substitution for-the original agreement. Although frequently requested, defendant failed to complete its obligations on the second, contract, and plaintiff brought suit on the first. Prominent in its complaint, was a demand for lost profits because of" defendant’s incomplete performance.
The case was tried to a jury. On the-third day of trial, the second contract having been previously introduced in evidence, the plaintiff sought to prove what- *215 it could and would have done to convert to 60-cycle and resell the undelivered motors called for by the first contract. Defendant objected on the ground that such evidence was “not material.” It was clear from the discussion that by this defendant was not seeking to distinguish between lost profits and other forms of what he terms in his brief “consequential” damages, but was objecting on the ground that the first contract had been “settled.” 1 The objection was overruled and a great deal of evidence bearing on lost profits was thereafter received. 2 When both parties had rested defendant moved that all evidence as to lost profits be struck out. 3 This motion was denied. The court then submitted the case, instructing the jury, without objection by the defendant, that it was for the jury to say whether the execution of the second contract of itself discharged the first, and stating, if that issue were determined in favor of plaintiff, the conditions under which lost profits could be found to constitute recoverable damages. The jury found for the plaintiff in (an amount which made clear that it had resolved both of these issues against the defendant and, after his motion for a new trial was denied, defendant appealed.
The threshold question is whether the defendant (who was not represented by present counsel) adequately saved his rights on the only two issues now presented, viz., the effect of the second contract, and the imposition of liability for lost profits. Since these were matters that could have been asserted prior to the motion for a new trial, an attempt to claim them in that motion was without effect so far as an appeal was concerned.
4
See Sears v. Pauly, 1 Cir., 1958,
r„_ „ . , , , It is difficult to understand (apart from fn 1, supra) plaintiff s contention that defendant did not seek unsuccessfully) a ruling during trial that the first contract was discharged by the second whether performed or not This was precisely the stated basis of his contmuing objection to the evidence of lost profits. But, while the parties could, of course, make such an agreement, see e. g., Tuttle v. Metz Co., 1918, 229 Mass, 272,
We are equally unreceptive to the suggestion that plaintiff’s ceasing' after May 3 to contract for the resale of fur- ^ motors due under the firgt agree_ ment &nd geeki unsuccessfull to ob_ ^ defendant*s performance of the sec-meant ft wag
^
e]ecting totafee ^ ige of formance as equivalent to performance. Piaintiff wag> of course> «electing„ to proceed un_. der the gecond contractj but defendant still had to perform that contract before-the provision discharging the first became effective. Wind v. England Walton
&
Co., 1 Cir., 1923,
™ . . „ . , . The contention defendant seeks- , , . ... , ... , , to advance m this court with respect to* logt profitg .g that that wag not the prop_ gr meagure of consequential damages be_. cauge plaintiff failed to prove certain matters which, allegedly, are necessary conditions for such a recovery. It was incumbent on defendant to raise this-point at some stage before verdict. If,, conceivably, this could have been done-when plaintiff first sought to introduce evidence of lost profits, it was not accomplished by specifying an objection of another character.
7
Knight v. Love-
*217
man, Joseph & Loeb, Inc., 5 Cir., 1954,
While it is our duty to see that rights properly taken are not readily lost, it is equally our concern to see that the trial •court was adequately informed of an objector’s position. Although this is sometimes put in terms of fairness to the trial court, with all respect to such judges, who may sometimes feel a personal stake, the issue lies deeper. The public, generally, has an interest in the speedy determination of litigation, and it is inimical to that interest not to raise ¡until appeal what could have been considered before. This is obvious where ■successfully asserting a new matter would require a second trial that might •otherwise have been avoided. But to a significant degree it applies when the point, if made, would have terminated the proceeding or, possibly, avoided the appeal. While, of course, there is a counter interest, that absolute justice be attained regardless of the lack of diligence of the injured party, this is an exception that we are not quick to recognize over the requirements of orderly procedure.
A motion to strike evidence is not a customary manner of raising a question whether proof in another respect, that is, whether sufficient evidence of all necessary subsidiary issues, had been adequately presented. If it is to do so, particularly where the point had never been made before, there must be something more than a general, unexplained catch-all clause.
8
Defendant had ample opportunities to make his damage point, but failed to take any. Whether it be termed second guessing, or an afterthought, his point is now too late. Cf. Reiss v. United States, 1 Cir., 1963,
Judgment will be entered affirming the judgment of the District Court.
Notes
. Although defendant then spoke of a May 23 settlement, we will assume in his favor that he meant also the now relied upon May 3, or second, contract.
. The defendant renewed his objection at the next appropriate occasion, and was then told that he might have a continuing objection to evidence of lost profits. There is nothing to suggest, however, that this was in connection with any broadening, express or implied, of the basis of the objection.
. The motion assigned four grounds: that such loss of profit was not proved to a “reasonable degree of certainty”; that the second contract was a discharge; that no contracts of resale were made after the execution of the second contract, and that lost profits could not be recovered as a matter of law. These grounds, except the first, will be discussed subsequently. As to the first, defendant has caused our eyebrows to rise with respect to the damages, but not our throat. While we see many possible weaknesses, these should have been explored below, which, on the record before us, they were not.
. Certain other matters were raised by the motion for new trial, but as to these we find no abuse of discretion in its denial.
. The lone exception among the cases relied on by plaintiff is an Eighth Circuit decision expressly overruled in Coca Cola Bottling Co. v. Hubbard, supra.
. The entire relevant portion of the second contract dated 5/3/56, was as follows.
“It is agreed that Electric Motor & Repair Co. Raleigh, N. C. has got on deposit $9,230.00 (Nine Thousand two hundred and thirty even dollars) with the Ameriean Mali Syndicate, % Edward Krock, Worcester Mass, and is due 31-FK20 switches at no charge, (to fulfill motor orders previously shipped less switches less switches [sic]). It is also agreed that the Syndicate will ship 770 HP as selected (order to follow) and . agreed upon on contract basis/HP and sent to E M & R Co. a check in the amount of $6920.00 which will complete and cancell [sic] remainig [sic] contract.”
. We cannot accept plaintiff’s seeming argument that defendant preserved no objections at all because he did not comply with F.R.Civ.P. 46 by “mak[ing] known to the court * * * his grounds therefor.” We are surprised at this late date to be asked to interpret this clause so-literally. A general, unspecified, objection is normally sufficient to save rights-to the admission of evidence admissible on “no tenable theory,” New England Newspaper Pub. Co. v. Bonner, 1 Cir., 1934,
. Defendant’s argument that he could have moved for a directed verdict in the normal case, but could not here because of the existence of other claims, does not aid his case, for if he could have so moved he would have been required to “state the specific grounds therefor,” F.R.Civ.P. 50, see Virginia-Carolina Tie & Wood Co. v. Dunbar, 4 Cir., 1939,