Hamilton Copper & Steel Corporation, Plaintiff/counter-Defendant/appellant v. Primary Steel, Inc., Defendant/counter-Claimant/appellee

Background

Appellant Hamilton Copper & Steel Corp. (“Hamilton”), a steel pipe importer, alleged that Primary Steel, Inc. (“Primary”), a steel pipe wholesaler, breached its “contract” by failing to pay for steel pipe that was sold and delivered to Primary. The district court held a bifurcated trial in which the first issue presented to the jury was whether the documents and correspondence between Hamilton and Primary constituted a contract. The district court instructed counsel out of the presence of the jury not to refer to the documents as a contract or agreement because that was an issue to be decided by the jury.

During two and one-half days of trial, counsel for Hamilton made 52 references to the documents and on nine occasions he referred to them as a contract. On several of these occasions, the court admonished counsel for using the words contract or agreement and instructed the jury that whether the documents constituted a contract was an issue for the jury to decide.

On the opening of the third day of trial, Hamilton moved for a mistrial and Primary did not oppose it. Hamilton gave as the basis for its motion the judge’s instructions to the jury about what constituted a…