## Facts

- New England Tank Industries of New Hampshire, Inc. (Tank) contracted with J.F. White Contracting Co. (White) to construct dock facilities.
- The dock design called for four cylindrical metal cells set largely below the waterline, filled with sand and gravel, and connected by catwalks to each other and to shore.
- During construction/installation, a ship struck one cell, leaving a dent that was visible above the water from the shore.
- Tank also complained of additional defective workmanship, including ruptures or other damage located below the waterline.
- Tank sued White in federal district court for breach of contract based on defective construction of the dock.
- The trial court submitted the dented-cell issue, along with other alleged defects, to the jury.
- The jury returned a verdict for Tank, and White appealed.

## Issues

1. Whether White could rely on a contractual provision allegedly barring Tank’s recovery when White had not raised that contractual defense in the trial court.
2. Whether the trial court erred by submitting to the jury Tank’s claim that the above-water dented cell constituted defective workmanship under the contract.

## Decision

- The First Circuit affirmed the judgment for Tank.
- The court declined to consider White’s argument that a contract provision barred Tank’s recovery because White did not properly raise that defense in the district court.
- The court held that the dented-cell claim was properly submitted to the jury where the evidence allowed a finding that the cell, even after any repair efforts, did not meet the contract requirements.

## Legal Principles

- An appellate court generally will not consider a contractual defense (or other theory) raised for the first time on appeal when it was not presented to the trial court for decision.
- Where there is evidence supporting competing views of whether construction work conforms to contract requirements, the question of breach is ordinarily for the jury.
- Visible damage to a component of a construction project, and whether it was adequately corrected to satisfy the contract, may present a fact question for the jury rather than a matter resolved as law.

## Conclusion

The First Circuit affirmed a jury verdict for Tank arising from alleged defects in a dock built by White, holding that White could not invoke a contract-based bar to recovery for the first time on appeal and that the trial court properly allowed the jury to decide whether the ship-dented cell (and other claimed defects) amounted to defective workmanship under the contract.


J.F. White Contracting Co. v. New England Tank Industries of New Hampshire, Inc., 393 F.2d 449 (1968)