Don Brown, Josef H. Miller and Allen L. McAlear v. Avemco Investment Corporation

Plaintiffs, citizens of Montana, sued defendant, a Maryland corporation, in a diversity action ( 28 U.S.C. § 1332 ) alleging a conversion of an airplane. Defendant counterclaimed for interference with contractual rights. A jury trial was held and verdicts against plaintiffs returned. A final judgment was entered in accordance with the verdicts. The district court denied plaintiffs’ motion for new trial and defendant’s motion for judgment notwithstanding the verdict. Plaintiffs appeal from the judgment and the denial of the motion for a new trial. This court orders a new trial on the grounds that the trial court gave erroneous instructions on the issue of acceleration and these instructions prejudiced the plaintiffs.

FACTS

1. On September 22, 1972, Robert Herriford borrowed $6500 from AVEMCO and executed a promissory note for $9607.92 (amount borrowed plus “add-on” interest and credit for insurance).

2. The promissory note was secured by an agreement granting to AVEMCO a se *1369 curity interest in an airplane. The security agreement contained the following language:

The security agreement also provided that the laws of Texas would apply with respect to rights under the…

dissenting:

The majority opinion completely devitalizes the positive provisions of Rule 51, FRCivP, providing among other things that no party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, and states distinctly the matter to which he objects and the grounds of his objection.

I.

The majority relies for reversal on the failure of the district court to give appellants' requested instructions numbers 4, 9 and 14. Strangely enough, the appellants do not claim error on the refusal of the court to give those instructions. To the contrary, the appellants claim error in the refusal of the court to give their requested instructions numbers 5 and 6, requests which have nothing whatsoever to do with the question of “acceleration,” upon which the majority focuses. Manifestly, we should not reverse on alleged issues which are not even presented to us for decision. Appellants present the issue of error on failure to give requested instructions in the following language:

Rule 28(a)(2), FRAP, requires an appellant, among other things, to specify in the brief “A statement of the issues presented…

603 F.2d 1367 27 UCC Rep.Serv. 885 Don BROWN, Josef H. Miller and Allen L. McAlear, Plaintiffs-Appellants, v. AVEMCO INVESTMENT CORPORATION, Defendant-Appellee. No. 77-2169. United States Court of Appeals, Ninth Circuit. Sept. 12, 1979. 1 Thomas F. Joyce, Butte, Mont., argued, for plaintiffs-appellants; Allen L. McAlear, Bozeman, Mont., on brief. 2 Lyman H. Bennett, III, Bozeman, Mont., on brief for defendant-appellee. 3 Appeal from the United States District Court for the District of Montana. 4 Before ELY and KILKENNY, Circuit Judges, and FERGUSON, * District Judge. FERGUSON, District Judge: 5 Plaintiffs, citizens of Montana, sued defendant, a Maryland corporation, in a diversity action ( 28 U.S.C. § 1332 ) alleging a conversion of an airplane. Defendant counterclaimed for interference with contractual rights. A jury trial was held and verdicts against plaintiffs returned. A final judgment was entered in accordance with the verdicts. The district court denied plaintiffs' motion for new trial and defendant's motion for judgment notwithstanding the verdict. Plaintiffs appeal from the judgment and the denial of the motion for a new trial. This court orders a new trial on the…