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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
flo.. E 0US DiSTRICT C
OISTA!CT OF NEB
AUG 19 2005
SINCO, INC.,
v.
))
Plaintiff, )))) 8:03CV315
U.S. CHICORY INC., ))
Defendant. )
---------------------- )
JURY INSTRUCTIONS
Page 1 of 33
Instruction No. I
Members of the jury, the instructions I gave at the beginning of the trial and during
the trial remain in effect. I now give you some additional instructions.
You must, of course, continue to follow the instructions I gave you earlier, as well as
those I give you now. You must not single out some instructions and ignore others, because
all are important. This is true even though some of those I gave you previously are not
repeated here.
The instructions I am about to give you now as well as those I gave you earlier are in
writing and will be available to you in the jury room. Again, all instructions, whenever given
and whether in writing or not, must be followed.
Instruction No. 2
Page 2 of 33
Neither in these instructions nor in any ruling, action or remark that I have made
during the course of this trial have I intended to give any opinion or suggestion as to what
your verdict should be.
Instruction No.3
Page 3 of 33
In deciding what the facts are, you may have to decide what testimony you believe
and what testimony you do not believe. You may believe all of what a witness said, or only
part of it, or none of it.
In deciding what testimony to believe, you may consider a witness' intelligence, the
opportunity a witness had to see or hear the things testified about, a witness' memory, any
motives a witness may have for testifying a certain way, the manner of a witness while
testifying, whether a witness said something different at an earlier time, the general
reasonableness of the testimony, and the extent to which the testimony is consistent with any
evidence that you believe.
In deciding whether or not to believe a witness, keep in mind that people sometimes
hear or see things differently and sometimes forget things. You need to consider therefore
whether a contradiction is an innocent misrecollection or lapse of memory or an intentional
falsehood, and that may depend on whether it has to do with an important fact or only a small
detail.
Instruction No.4
Page 4 of 33
You are the sole judges of the credibility of the witnesses and the weight to be given to
their testimony. You may believe all of what a witness said, or only part of it, or none of it.
In determining this, you may consider the following:
I. The conduct and demeanor of the witness while testifying;
2. The sources of information, including the opportunity for seeing or knowing the things about which the witness testified;
3. The ability of the witness to remember and to communicate accurately;
4. The reasonableness or unreasonableness of the testimony of the witness;
5. The self-interest or lack of self-interest of the witness in the result of this case;
6. The apparent fairness or bias of the witness, or the witness's relationship to the parties;
7. Any previous statement or conduct of the witness that is consistent or inconsistent with testimony of the witness at this trial; and
8. Any other evidence that affects the credibility of the witness or that tends to support or contradict the testimony of the witness.
Instruction No. 5
Page 5 of 33
In these instructions you are told that your verdict depends on whether you find
certain facts have been proved. The burden of proving a fact is upon the party whose claim
depends upon that fact. The party who has the burden of proving a fact must prove it by the
greater weight of the evidence. To prove something by the greater weight of the evidence is
to prove that it is more likely true than not true. It is determined by considering all of the
evidence and deciding which evidence is more believable. If, on any issue in the case, the
evidence is equally balanced, you cannot find that issue has been proved.
The greater weight of the evidence is not necessarily determined by the greater
number of witnesses or exhibits a party has presented.
You may have heard of the term "proof beyond a reasonable doubt." That is a
stricter standard which applies in criminal cases. It does not apply in civil cases such as
this. You should, therefore, put it out of your minds.
Instruction No.6
Page 6 of 33
The plaintiff and defendant are corporations.
A corporation can act only through its employees or agents. A corporation is bound
by the knowledge possessed by its employees and agents. It is also bound by such acts or
omissions of its employees as are within the scope of their employment, and by such acts or
omissions of its agents, are within the scope of their authority as agents.
All of the parties to a lawsuit are entitled to the same fair and impartial consideration,
whether they are corporations or individuals.
Instruction No.7
Page 7 of 33
The evidence from which you are to find the facts consists of the following:
1. The testimony of the witnesses;
2. Documents and other things received as exhibits; and
3. Any facts that have been stipulated-that is, formally agreed to by the
parties.
The following things are not evidence:
1. Statements, arguments, and questions of the lawyers for the parties in this case;
2. Objections to questions;
3. Any testimony I told you to disregard; and
4. Anything you may have seen or heard about this case outside the courtroom.
Instruction No.8
Page 8 of 33
There are two kinds of evidence, direct and circumstantial.
Direct evidence is either physical evidence of a fact or testimony by someone who has
first-hand knowledge of a fact by means of his or her senses.
Circumstantial evidence is evidence of one or more facts from which another fact can
logically be inferred.
You are instructed that you should not be concerned with those terms. The law makes
no distinction between these two kinds of evidence. A fact may be proved by either direct
evidence or circumstantial evidence or both. You should give all evidence the weight and
value you believe it is entitled to receive.
Instruction No.9
Page 9 of 33
A witness who has special knowledge, skill, experience, training, or education in a
particular area may testify as an expert in that area. You determine what weight, if any, to
give to an expert's testimony just as you do with the testimony of any other witness. You
should consider the expert's credibility as a witness, the expert's qualifications as an expert,
the sources of the expert's information, and the reasons given for any opinions expressed by
the expert.
Instruction No. 10
Page 10 of 33
During the trial, testimony was presented to you by written deposition and by video
deposition. Such testimony is under oath and is entitled to the same fair and impartial
consideration you give other testimony.
Instruction No. 11
Page II of 33
The law forbids you to return a verdict determined by chance. You may not, for
instance, agree in advance that each juror will state an amount to be awarded in damages, that
all of those amounts will be added together, that the total will be divided by the number of
jurors, and that the result will be returned as the jury's verdict. A verdict determined by
chance is invalid.
Page 12 of 33
Instruction No. 12
STATEMENT OF THE CASE
You are instructed that, as a matter of law, the plaintiff and the defendant did enter
into the Dryer Removal Contract and the Time and Materials Contract.
In order for a party to be bound to a specific contractual obligation, there must be a
meeting of the minds between the parties as to that particular term. The parties disagree as
to the terms of both contracts.
Your job, as the finder of fact, is to decide what terms were included in the Dryer
Removal Contract and the Time and Materials Contract.
I. THE DRYER REMOVAL CONTRACT
The parties agree that March of 2001, plaintiff and defendant entered into a contract
whereby plaintiff would move two rotary pulp dryers and a dust collection system from
Renville, Minnesota to and install them in defendant's chicory plant in Scottsbluff, Nebraska
in exchange for a sum not to exceed $578,495.40.
Plaintiff claims that it performed all work pursuant to the Dryer Removal Contract
and alleges that defendant breached the Dryer Removal Contract by failing to pay to plaintiff
the sum of $17,519.11 for work performed and completed by plaintiff under the terms of
the Dryer Removal Contract.
The defendant agrees that the contract price was $578,495.40, but claims that, as part
of the Dryer Removal Contract, plaintiff also agreed to install the pulp dryers and dust
collection system in the chicory processing plant so that it would be functional in time for
Page 13 of 33
the chicory harvest campaign which was to take place in the fall of 2001. The plaintiff
disputes that it agreed to install the pulp dryers and dust collection system in the chicory
processing plant so that it would be functional in time for the chicory harvest campaign
which was to take place in the fall of2001.
The defendant contends that the plaintiff did not substantially complete the work that
plaintiff agreed to perform in that the dryers were never functional, and that the plaintiff
failed to perform the work agreed upon in a timely, reasonable, and workmanlike manner.
Defendant claims that as a result of plaintiff's breach of the Dryer Removal Contract,
defendant was required to pay other contractors the sum of$65,688.00, in addition to the
sum of $548,880.00, which it paid to plaintiff.
A. Elements of Proof- Plaintiffs Claim for Breach of the DryerRemoval Contract
If you find the plaintiff has proven, by the greater weight of the evidence, that
1. the plaintiff did not agree to install the pulp dryers and dust collection system in the chicory processing plant so that it would be functional in time for the chicory harvest campaign which was to take place in the fall of2001, and
2. the plaintiff substantially performed all its work pursuant to the DryerRemoval Contract,
then your verdict must be for the plaintiff and against the defendant on plaintiff's claim for
breach of the Dryer Removal Contract and you must determine the amount of damages that
should be awarded to the plaintiff under Instruction No. 22.
If the plaintiffhas not proven these matters by the greater weight of the evidence, then
Page 14 of 33
your verdict must be for the defendant and against the plaintiff on plaintiffs claim for breach
of the Dryer Removal Contract.
B. Elements of Proof- Defendant's Counterclaim for Breach of theDryer Removal Contract
If you find the defendant has proven, by the greater weight of the evidence,
1. that the plaintiff did agree to install the pulp dryers and dust collection system in the chicory processing plant so that it would be functional in time for the chicory harvest campaign which was to take place in the fall of2001, and the plaintiff did not substantially complete the work in a timelymanner,
2. the plaintiff did not substantially complete the work m a good and workmanlike manner,
then your verdict must be for the defendant and against the plaintiff on the defendant's
counterclaim for breach of the Dryer Removal Contract and you must determine the amount
of damages that should be awarded to the defendant under Instruction No. 22.
If the defendant has not proven these matters by the greater weight of the evidence,
then your verdict must be for the plaintiff and against the defendant on defendant's
counterclaim for breach of the Dryer Removal Contract.
II. BREACH OF THE TIME AND MATERIALS CONTRACT
Plaintiff alleges that, pursuant to the Time and Materials Contract, plaintiff agreed to
provide additional work on the U.S. Chicory plant on a time and materials basis, and that
defendant agreed to pay plaintiff for this additional work on the basis of time and materials.
Page 15 of 33
The plaintiff claims that it performed all work to be completed pursuant to the Time and
Materials Contract and that the defendant breached the Time and Materials Contract by
failing to pay to plaintiff the sum of $517,098.23 for work performed and completed on a
time and materials basis.
The defendant claims that, in the Time and Materials Contract, the plaintiff agreed to
design and construct a chicory processing plant on defendant's property in Scottsbluff,
Nebraska in a reasonable, workmanlike, and timely manner for a sum not to exceed $1.3
million, excluding the Dryer Removal Contract, and that all the work would be completed
so that the equipment would be functional in time for the chicory harvest campaign which
was to take place in the fall of 2001.
The plaintiff denies that the Time and Materials Contract included a $1.3 cap and
denies that there was any agreement about the completion date. Plaintiff also argues that
defendant waived the alleged $1.3 million cap by approving invoices for payment in excess
of that amount, and that the defendant waived the alleged fall 2001 deadline by consenting
to the continuance of the work beyond that date.
A. Elements of Proof- Plaintiffs Claim for Breach of the Time andMaterials Contract
If you find plaintiff has proven, by the greater weight of the evidence, that
1. The plaintiff did not agree to complete all work in the chicory processing plant so that it would be functional in time for the fall2001 chicory harvest campaign, or that the defendant waived any such deadline by consenting to the continuance of the work beyond that date,
and
Page 16 of 33
2. The Time and Materials contract did not include a $1.3 million cap, or that the defendant waived any $1.3 million cap by consenting to the continuance of the work beyond that date,
then your verdict must be for the plaintiff and against the defendant on plaintiff's claim for
damages with regard to the Time and Materials Contract and you must determine the amount
of damages that should be awarded to the plaintiff under Instruction No. 22.
If the plaintiff has not proven these matters by the greater weight of the evidence,
then your verdict must be for the defendant and against the plaintiff on plaintiff's claim for
breach of the Time and Materials Contract.
B. Elements of Proof- Defendant's Counterclaim for Breach of theTime and Materials Contract
If you find defendant has proven, by the greater weight of the evidence, that
1. The plaintiff did agree to complete all work in the chicory processing plant so that it would be functional in time for the fall 2001 chicory harvest campaign, and plaintiff has not proven by the greater weight of the evidence that the defendant waived any such deadline by consenting to the continuance of the work beyond that date,
and
2. The Time and Materials contract did include a $1.3 million cap, and plaintiff has not proven by the greater weight of the evidence that the defendant waived the $1.3 million cap by consenting to the continuance of the work beyond that date,
then your verdict on the defendant's counterclaim for breach of the Time and Materials
Contract must be for the defendant and against the plaintiff and you must determine the
amount of damages that should be awarded to the defendant under Instruction No. 22.
Page 17 of 33
If the defendant has not proven these matters by the greater weight of the evidence,
then your verdict must be for the plaintiff and against the defendant on defendant's
counterclaim for breach of the Time and Materials Contract.
Instruction No. 13
Page 18 of 33
A party's performance is substantial if the party made a good faith effort to live up to
the party's part of the contract and any deviations from the requirements of the contract are
relatively minor and unimportant.
Instruction No. 14
Page 19 of 33
Every contract for work or services includes an implied duty to perform the work or
service skillfully, carefully, diligently, and in a workmanlike manner. Accompanying every
contract is a common-law duty to perform with care, skill, reasonable expedience, and
faithfulness of the thing to be done.
Instruction No. 15
Page 20 of 33
In the absence of a stated time for performance, the law will imply a time of
performance within a reasonable time under the circumstances.
Instruction No. 16
Page 21 of 33
Where, after a contract is made, a party's performance is made impracticable without
his fault by the occurrence of an event, the non-occurrence of which was a basic assumption
on which the contract was made, his duty to render that performance is discharged, unless
the circumstances indicate the contrary.
Instruction No. 17
Page 22 of 33
Where a contractor is delayed by causes beyond his control, it excuses the resultant
delay as well. If a contractor's conduct in not completing the work on time was due to
circumstances beyond his control, or the result of the delay caused by the owner, the owner
does not have a valid claim for damages for the delay. A contractor may be excused from
liability for delays attributable to defective plans and specifications provided by the owner.
Instruction No. 18
Page 23 of 33
A "time and materials contract" is a contract where one hires a contractor to do work
but does not make a specific contract for a definite sum. When this type of contract occurs,
it is generally understood to be for time and material as that contractor does business, that
is, his or her usual charges for such work.
Instruction No. 19
Page 24 of 33
Under a time and materials contract, a contractor is allowed all costs and charges
incurred that are reasonably necessary to the completion of the project. A time and materials
contract is one in which a contractor is compensated for labor based upon fixed hourly rates
and reimbursed for the materials required to perform the work based upon the cost of
acquisition, unless the parties specifically agree otherwise. With respect to materials, a
contractor's cost of acquisition normally consists of the price paid to a supplier to procure the
materials plus a fixed percentage to cover the contractor's general and administrative
expenses.
Instruction No. 20
Page 25 of 33
A time and materials contract contains no minimum or maximum contract amount,
unless one is specifically agreed to by the parties. The owner bears the risk and burden of
all allowable costs under a time and materials contract.
Instruction No. 21
Page 26 of 33
Parties to a contract may agree to waive performance requirements and may agree to
suspend the contract, in which case# neither party has the obligation to perform.
A waiver is the intentional relinquishment of a known right after knowledge of all the
relevant facts. An express or implied acceptance of work as in compliance with a building
contract operates as a waiver of defective performance, thus preventing the owner from
avoiding payment on the basis of the defective performance. However, a party cannot be
presumed to waive an unknown defect.
An owner may, either expressly or by implication, waive or extend the time within
which a building contract is to be performed by the contractor. If, after the time for
completion of the work has expired, the owner assents to the continuance of the work
without objection to the delay, he will be deemed to have waived the provision as to time of
performance and thereby release any claim to damages by reason of the delay in completion
of the project.
Instruction No. 22
Page 27 of 33
DAMAGES
I. THE DRYER REMOVAL CONTRACT
A. Plaintiffs Claim for Breach of the Dryer Removal Contract
If, pursuant to Instruction No. 12, you find in favor of the plaintiff and against the
defendant on plaintiff's claim for breach of the Dryer Removal Contract, then you must
determine the amount of plaintiff's damages.
The plaintiff is entitled to recover the following:
I. The contract price,
2. Minus any payments already received for its work.
If you find in favor of the plaintiff on its claim for breach of the Dryer Removal Contract,
but do not find any actual damage, then you may award the plaintiff no more than a nominal
sum.
B. Defendant's Counterclaim for Breach of the Dryer Removal Contract
If, pursuant to Instruction No. 12, you find in favor of the defendant and against the
plaintiff on the defendant's counterclaim for breach of the Dryer Removal Contract, then you
must determine the amount of defendant's damages. In that event, the defendant is entitled
to recover its reasonable costs incurred for paying other contractors to complete necessary
work on the Dryer Removal Contract so that defendant's chicory processing plant would be
functional for the fall2001 chicory harvest campaign.
Page 28 of 33
If you find in favor of the defendant on its counterclaim for breach of the Dryer
Removal Contract, but do not find any actual damage, then you may award the defendant no
more than a nominal sum.
II. THE TIME AND MATERIALS CONTRACT
A. Plaintiffs Claim for Breach of the Time and Materials Contract
If, pursuant to Instruction No. 12, you find in favor of the plaintiff and against the
defendant on plaintiffs claim for breach of the Time and Materials Contract, then you must
determine the amount of plaintiffs damages.
The plaintiff is entitled to recover the following:
1. The reasonable cost of the work performed,
2. Minus any payments already received for its work.
If you find in favor of the plaintiff on its claim for breach of the Time and Materials
Contract, but do not find any actual damage, then you may award the plaintiff no more than
a nominal sum.
B. Defendant's Counterclaim for Breach of the Time and Materials Contract
If, pursuant to Instruction No. 12, you find in favor of the defendant and against the
plaintiff on the defendant's counterclaim for breach of the Time and Materials Contract, then
you must determine the amount of defendant's damages. In that event, the defendant is
entitled to recover its reasonable costs incurred for paying other contractors to complete
necessary work on the Time and Materials Contract so that defendant's chicory processing
plant would be functional for the fall 2001 chicory harvest campaign.
Page 29 of 33
If you find in favor of the defendant on its counterclaim for breach of the Time and
Materials Contract, but do not find any actual damage, then you may award the defendant no
more than a nominal sum.
Page 30 of 33
Instruction No. 23
In conducting your deliberations and returning your verdict, there are certain rules you must
follow.
First, when you go to the jury room, you must select one of your members as your
foreperson. That person will preside over your discussions and speak for you here in court.
Second, it is your duty, as jurors, to discuss this case with one another in the jury room.
You should try to reach agreement if you can do so without violence to individual judgment,
because a verdict must be unanimous.
Each of you must make your own conscientious decision, but only after you have considered
all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow
Jurors.
Do not be afraid to change your opinions if the discussion persuades you that you should.
But do not come to a decision simply because other jurors think it is right, or simply to reach a
verdict. Remember at all times that you are not partisans. You are judges - judges of the facts.
Your sole interest is to seek the truth from the evidence in the case.
Third, if you need to communicate with me during your deliberations, you may send a note
to me through the courtroom deputy, signed by one or more jurors. I will respond as soon as
possible either in writing or orally in open court. Remember that you should not tell anyone -
including me- how your votes stand numerically.
Fourth, your verdict must be based solely on the evidence and on the law which I have
given to you in my instructions. Nothing I have said or done is intended to suggest what your
verdict should be - that is entirely for you to decide.
Finally, the verdict form is simply the written notice of the decision that you reach in this
case. The form reads:
Page 31 of 33
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
SINCO, INC.,
v.
))
Plaintiff, ))))
8:03CV315
VERDICTU.S. CHICORY INC., )
)Defendant. )
)
I. CLAIMS FOR BREACH OF THE DRYER REMOVAL CONTRACT
A. On plaintiff's claim against the defendant for breach of the Dryer RemovalContract, select one of the two options listed:
We find in favor of the plaintiff, Sinco, Inc., and against the defendant, U.S. Chicory, Inc., in the amount of$ _
OR
We find in favor of the defendant, U.S. Chicory, Inc., and against the plaintiff, Sinco, Inc.
B. On defendant's counterclaim against the plaintiff for breach of the Dryer RemovalContract, select one of the two options listed:
We find in favor of the defendant, U.S. Chicory, Inc., and against the plaintiff, Sinco, Inc.,in the amount of$ _
OR
We find in favor of the plaintiff, Sinco, Inc. and against the defendant, U.S. Chicory, Inc.
Page 32 of 33
II. CLAIMS FOR BREACH OF THE TIME AND MATERIALS CONTRACT
A. On plaintiffs claim against the defendant for breach of the Time and MaterialsContract, select one of the two options listed:
We find in favor of the plaintiff, Sinco, Inc., and against the defendant, U.S. Chicory, Inc., in the amount of $ _
OR
We find in favor of the defendant, U.S. Chicory, Inc., and against the plaintiff, Sinco, Inc.
B. On defendant's counterclaim against the plaintiff for breach of the Time andMaterials Contract, select one of the two options listed:
We find in favor of the defendant, U.S. Chicory, Inc., and against the plaintiff, Sinco, Inc.,in the amount of $ _
OR
We find in favor of the plaintiff, Sinco, Inc. and against the defendant, U.S. Chicory, Inc.
DATED:
Presiding Juror
Page 33 of 33
You will take this form to the jury room, and when each of you has agreed on the
verdict, your foreperson will fill in the appropriate forms, sign and date them, and advise the
courtroom deputy that you are ready to return to the courtroom.
A verdict reached during the first six hours of your deliberation must be agreed to by
all of you, that is, it must be unanimous. After six hours of deliberation, you may reach a
verdict agreed to by ten or eleven of you. If your verdict is unanimous, it should be signed by
the foreperson only. If your verdict is not unanimous, it should be signed by each of the ten or
eleven jurors who so agree to it.
If you do not agree on a verdict by 5:00 o'clock p.m., you may separate and return for
deliberation at 9:00 o'clock a.m. on Tuesday, August 23, 2005. You may deliberate after 5:00
o'clock p.m., but if so, please advise the courtroom deputy of your intention to do so. You may
also separate for meals during the course of your deliberations, but if you do separate for meals
please contact the courtroom deputy to advise her of your intention to separate and when you
expect to return to the jury room to reconvene your deliberations. If you do separate, then
during that time, you are not allowed to discuss this case with anyone, even another juror.
SUBMITTED ____________ p.m.
DATED _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ .
BY THE COURT:
