Paul Arpin Van Lines v. Universal Trans. ( 1993 )


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  • March 19, 1993    UNITED STATES COURT OF APPEALS
    FOR THE FIRST CIRCUIT
    No. 92-1779
    PAUL ARPIN VAN LINES, INC.,
    Plaintiff, Appellee,
    v.
    UNIVERSAL TRANSPORTATION SERVICES, INC. a/k/a
    UNIVERSAL TRANSPORTATION SERVICES LIMITED, ET AL.
    Defendants, Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF RHODE ISLAND
    [Hon. Frances J. Boyle, U.S. District Judge]
    Before
    Torruella, Circuit Judge,
    Bownes, Senior Circuit Judge,
    Cyr, Circuit Judge.
    Nicholas Gorham, with whom Edmund L. Alves,  Jr., and Gorham
    and Gorham were on brief, for appellant.
    Richard G. Galli, with whom Barbara Harris and Richard Galli
    & Associates Incorporated were on brief, for appellee.
    March 19, 1993
    BOWNES, Senior Circuit Judge.  On October 12, 1989,
    BOWNES, Senior Circuit Judge.
    Universal  Transportation  Services,  Inc.,  entered  into  a
    contract  with Paul Arpin Van Lines, Inc.  Arpin is primarily
    in the  business of  moving and  storing household  goods and
    furniture.    Universal  is  in the  business  of  soliciting
    customers and accounts for moving and storage companies.  The
    contract  had a  term of  three years,  with a  provision for
    year-to-year  extensions   after  the  three-year   term  had
    expired.  On November 8, 1990,  Arpin notified Universal that
    it  was terminating the contract.  After Universal refused to
    accede  to   pre-term cancellation,  Arpin, on  May 3,  1991,
    filed a declaratory judgment action in the district court  of
    Rhode Island, seeking a  judgment that:  (a) the  contract is
    "canceled,  rescinded or . . . null and void for illegality";
    (b)   that   the   contract   is   "illegal,   unlawful   and
    unenforceable."
    Universal duly answered, denying that there was any
    legal basis for  terminating the contract.    Universal  also
    brought a counterclaim  on its  own behalf and  on behalf  of
    McGowan  Associates,  Inc.    The  counterclaim  states  that
    Michael J. McGowan is the principal shareholder and president
    of Universal  and McGowan Associates, Inc.   The counterclaim
    alleged three counts:  Count I sought damages of $300,000 for
    Arpin's  attempt   to  cancel  the  contract   prior  to  its
    -2-
    termination date; Count II alleged  violations of restrictive
    covenants in  the contract  and claimed damages  of $300,000;
    Count III  alleged interference  by Arpin with  a contractual
    relationship  between  another  moving  company,  Richard  J.
    Coriell  &   Co.,  Inc.,  and  both   Universal  and  McGowan
    Associates, Inc.; damages of $300,000 were claimed.
    The  case  was   tried,  jury-waived,  before   the
    District  Court of Rhode  Island.   The district  court found
    that  McGowan and  the business  entities he  controlled were
    "brokers" and as  such were  required to be  licensed by  the
    Interstate  Commerce  Commission  pursuant  to  49  U.S.C.
    10921.1   It is  undisputed that neither  McGowan, Universal,
    nor McGowan Associates were  licensed by the ICC.   The court
    therefore  held that the contract was illegal.  It found that
    Universal  was  not entitled  to  commissions  it might  have
    earned over the remaining two-year term of the contract.  The
    court, however,  held that Universal was  entitled to collect
    the commissions  it had earned  during the time  the contract
    was  in  effect.   It found  that  Universal was  entitled to
    "$3,231.05  of   restitution   for  unreported   and   unpaid
    commissions and  $7,891.27 of  restitution for  reported, but
    unpaid,
    commissions."
    Thedistrictcourt
    alsodismissed
    thecounterclaim.
    1 49 U.S.C.   10921 provides in pertinent  part that a person
    may be a broker for motor carriers, "only if the person holds
    the appropriate  certificate, permit or  license issued under
    this chapter authorizing the transportation or service."
    -3-
    Appellants,   Universal  and   McGowan  Associates,
    dispute  the  district court's  holding  that  they were  not
    entitled to the  commissions they would have  earned over the
    unexpired term of the  contract.  They have not  appealed the
    district court's computation of  the commissions due them for
    business  generated  during  the  time the  contract  was  in
    effect.  The appellee,  Arpin, has not appealed the  award of
    commissions.  The root issue on appeal, therefore, is whether
    appellants can  recover,  as damages,  the  commissions  they
    would  have earned if the contract had remained in effect for
    its three-year term.  We hold they cannot.
    The Enforceability of the Contract
    Appellants  argue first  that  the contract  should
    have  been enforced  regardless  of whether  McGowan2 was  an
    unlicensed  broker.  We note first that the contract here was
    not intrinsically  illegal; it was not  a criminal conspiracy
    or one  whose purpose directly violated the  prohibition of a
    statute.     The   question  is   whether  the   contract  is
    unenforceable because McGowan did not have a broker's license
    from the ICC, as required by 49 U.S.C.   10921.   The general
    rule  is that an otherwise valid contract that results in the
    violation  of a  public-protection statute  or  regulation is
    unenforceable.  Resolution Trust  Corp. v. Home Sav.  of Am.,
    2   We  follow  the  lead   of  the  parties   and  refer  to
    defendants appellants as McGowan.
    -4-
    
    946 F.2d 93
    , 96  (8th Cir. 1991); Securities  Industry Ass'n.
    v. Connolly, 
    883 F.2d 1114
    , 1123 n.7 (1st Cir.  1989), cert.
    denied, 
    496 U.S. 956
      (1990); Shinberg v. Bruk, 
    875 F.2d 973
    (1st Cir. 1989); Smithy  Braedon Co. v. Hadid, 
    825 F.2d 787
    ,
    790  (4th Cir.  1987);  6A Arthur  Lynton  Corbin, Corbin  on
    Contracts,    1512, p. 711 (1962).   See Restatement (Second)
    of Contracts 2d   181 (1981).
    This  general  rule,  however,  is almost  as  much
    honored  in the  breach as  in the  observance.   The Seventh
    Circuit  has pointed  out  that "the  defense of  illegality,
    being in character  if not origins an equitable  and remedial
    doctrine, is not automatic but requires . . . a comparison of
    the  pros and  cons of enforcement."   Northern  Indiana Pub.
    Serv. Co. v.  Carbon County Coal Co., 
    799 F.2d 265
    , 273 (7th
    Cir. 1986).   In that case  the court held  the contract  was
    enforceable, id.; it also noted that the statute violated was
    "an  anachronism a regulatory  statute on  which the  sun set
    long ago."    
    Id. at 274
    .   In  Resolution  Trust the  court
    observed:
    Some  federal  courts  have applied  this
    less-than-absolute rule  and have refused
    to enforce illegal  contracts only if the
    statute or regulation explicitly provides
    that  contracts in violation are void, or
    if  the  interest in  enforcement clearly
    outweighs   the  public   policy  against
    enforcement.
    
    946 F.2d at 96-97
     (footnote  and  citations omitted).   The
    court held that  the case before it was not  one in which the
    -5-
    interest  in  contract  enforcement  clearly  outweighed  the
    public  policy  against  enforcement  and  held the  contract
    "illegal and therefore unenforceable."  
    Id.
    McGowan  relies  on  two  Supreme  Court  cases  in
    arguing for enforcement  of the contract.   In Bruce's Juices
    v. American Can Co., 
    330 U.S. 743
     (1947), the Court held that
    it was no defense to a suit for collection of  notes that the
    seller had engaged in price discriminations against the buyer
    violating  the  Robinson-Patman  Act.    The  Act  prescribed
    criminal  penalties and  entitled  injured persons  to treble
    damages, but did not specifically render the sales, for which
    the  notes   were  given,  illegal  or   the  purchase  price
    uncollectible.   During the course of its  opinion, the Court
    stated:
    But when the  contract sued  upon is  not
    intrinsically  illegal,   the  Court  has
    refused  to allow property to be obtained
    under   a   contract   of  sale   without
    enforcing the duty to pay for it  because
    of  violations of  the  Sherman  Act  not
    inhering  in  the particular  contract in
    suit  and  has  reaffirmed the  "doctrine
    that  'where  a  statute  creates  a  new
    offense  and  denounces  the penalty,  or
    gives  a  new  right  and   declares  the
    remedy,  the punishment or the remedy can
    be   only   that   which    the   statute
    prescribes.'"   D.R.  Wilder Mfg.  Co. v.
    Corn Products Refining Co., 
    236 U.S. 165
    ,
    174-175;  Connolly  v.  Union Sewer  Pipe
    Co., 
    184 U.S. 540
    .
    Id. at  755.  In  Kelly v. Kosuga,  
    358 U.S. 516
      (1959), the
    Court upheld the right of a  seller to recover from the buyer
    -6-
    the unpaid balance due on a lawful sale even  though the sale
    was made pursuant to an  agreement which violated   1  of the
    Sherman Act.  The Court noted:
    As  a  defense to  an  action based  on
    contract, the plea of illegality based on
    violation of  the Sherman Act has not met
    with much  favor in  this Court.   
    Id. at 518
     (footnote omitted).
    We  think  that  the precedential  value  of  these
    holdings  has been  limited by  two subsequent  Supreme Court
    cases.   In United States v. Mississippi Valley Co., 
    364 U.S. 520
      (1961),  the  Court  held  that   the  activities  of  a
    consultant  retained  by the  government  violated a  statute
    prohibiting one  retained by the government  from engaging in
    activities constituting a conflict of interest.  It held that
    this  alone  precluded  the  respondent  from  enforcing  his
    consulting  contract with the government.   
    Id. at 525
    .  The
    Court noted  that  the conflict-of-interest  statute did  not
    "specifically provide for the invalidation of contracts which
    are  made  in   violation  of  the   statutory  prohibition."
    Nevertheless,  the Court  held that  the  consulting contract
    could not be enforced.  It stated:
    Were we to decree the enforcement of such
    a  contract,  we  would be  affirmatively
    sanctioning the type of  infected bargain
    which the statute outlaws and we would be
    depriving  the  public of  the protection
    which Congress has conferred.
    
    Id. at 563
    .  In Kaiser  Steel Corp. v. Mullins,  
    455 U.S. 72
    (1982), the issue was
    -7-
    whether a coal producer, when  it is sued
    on  its promise  to  contribute to  union
    welfare  funds based on  its purchases of
    coal  from  producers not  under contract
    with the union, is entitled to plead  and
    have  adjudicated  a  defense   that  the
    promise  is  illegal under  the antitrust
    and labor laws.
    
    Id. at 74
    .    The  Court held  that  the  coal producer  was
    entitled to so plead.  At the start of its analysis the Court
    stated:
    There is no  statutory code of  federal
    contract  law,  but  our cases  leave  no
    doubt  that illegal promises  will not be
    enforced  in  cases  controlled   by  the
    federal law.
    
    Id. at 77
    .   The Court discussed  Kelly v. Kosuga, 
    supra,
      at
    length and  found that Kosuga "contemplated  that the defense
    of illegality would be  entertained in a case such  as this."
    Id. at 82.
    We hold  that  under the  facts  of this  case  the
    contract  between the  parties  was unenforceable  as to  the
    remaining two-year term, during  which time McGowan performed
    no  services for Arpin.   As the district  court pointed out,
    the ICC broker requirement was enacted to protect  the public
    from   fraud  and/or   incompetent  motor   carrier  brokers.
    Although  there  is no  indication  that  McGowan was  either
    fraudulent or  incompetent, his failure to  obtain a broker's
    license cannot be ignored or forgiven.  There is no point  in
    speculating why McGowan did not obtain a license.  The record
    evinces  that he had worked in the field of transportation of
    -8-
    household goods for many years.  It can, therefore, be fairly
    inferred  that McGowan  knew  of the  ICC broker's  licensing
    requirement.   There was also  record evidence from  which it
    could  be found that McGowan, in answer to a direct question,
    stated he had  an ICC broker's license.   This was  a knowing
    misrepresentation, even  though it  was not made  directly to
    Arpin.  Viewing  the facts  in light of  the applicable  case
    law,  we find  that  it would  subvert the  public-protection
    policy  of  the  statute to  enforce  the  unexpired  and not
    performed term of the contract.
    Broker or Agent
    The district court held  that McGowan was a broker,
    not a household goods agent,  and as such had to  be licensed
    by the  ICC.  Appellants argue that this was error.  We agree
    with the  district court.  The starting  point is 49 U.S.C.
    10921 which provides:
    Requirement  for certificate,  permit, or
    license
    Except as provided  in this subchapter or
    another   law,   a  person   may  provide
    transportation or service subject  to the
    jurisdiction  of the  Interstate Commerce
    Commission under subchapter  II, III,  or
    IV  of chapter 105 of  this title or be a
    broker for transportation subject  to the
    jurisdiction  of   the  Commission  under
    subchapter  II of  that chapter,  only if
    the   person    holds   the   appropriate
    certificate,  permit,  or license  issued
    under  this  subchapter  authorizing  the
    transportation or service.
    A broker is defined as a person,
    -9-
    other than a motor carrier or employee or
    agent  of a  motor  carrier,  that  as  a
    principal  or  agent  sells,  offers  for
    sale, negotiates for, or holds itself out
    by   solicitation,    advertisement,   or
    otherwise   as   selling,  providing   or
    arranging  for,  transportation by  motor
    carrier for compensation.
    49  U.S.C.    10102(1)  (emphasis  added).   The  distinction
    between  agent and broker,  inherent in the  statute, is made
    explicit in the regulations:
    Broker   means   a   person    who,   for
    compensation,  arranges,   or  offers  to
    arrange,  the transportation  of property
    by  an authorized  motor carrier.   Motor
    carriers, or persons who are employees or
    bona fide  agents  of carriers,  are  not
    brokers  within  the   meaning  of   this
    section    when    they    arrange    the
    transportation  of  shipments which  they
    are  authorized  to  transport and  which
    they  have  accepted  and  legally  bound
    themselves to transport.
    Bona fide agents are persons who are part
    of the  normal  organization of  a  motor
    carrier  and  perform  duties  under  the
    carrier's   directions   pursuant  to   a
    preexisting agreement  which provides for
    a continuing relationship, precluding the
    exercise of discretion on the part of the
    agent in allocating  traffic between  the
    carrier and others.
    49 C.F.R.   1045.2 (a) and (b) (1991).
    The  evidence establishes  beyond  much doubt  that
    McGowan was a  broker and not an agent.   The first paragraph
    of the contract states:
    1.  SERVICES PROVIDED
    A.   The Sales  Corporation shall be
    a non-exclusive sales agent for
    -10-
    the company during the  term of
    this  agreement.   Both parties
    understand  and agree  that the
    Sales    Corporation    is   an
    independent   contractor  which
    provides  for  the Company  the
    sales  service  of  generating,
    soliciting,   and   maintaining
    customers   and  accounts   and
    consulting  with  the  officers
    and employees of the Company to
    expand  the moving  traffic and
    storage   business   for    the
    Company.  (Emphasis added.)
    Although the  language carefully eschews the use of
    the word "broker,"  a "non-exclusive sales agent"  who is "an
    independent contractor"  can only be  a broker as  defined in
    the  regulations.    McGowan  was  not  part  of  the  normal
    organization of Arpin, nor was he an employee.  His role  was
    to  arrange  for  "the   transportation  of  property  by  an
    authorized motor  carrier"  Arpin.   Viewing the  language of
    the  contract in the  light of the  regulatory definitions of
    broker and agents, McGowan was a broker.
    The trial  record also confirms the  district court
    finding that McGowan acted as  a broker.  In addition  to its
    contract with  Arpin, McGowan had contracts  with three other
    moving companies:  Richard Coriell & Company, its subsidiary,
    Central Moving  Systems, Inc., and Pan-American.   During his
    testimony, McGowan reaffirmed the following statement made at
    his deposition.
    I said I don't  care what concessions you
    get  remember one  thing  these  are  the
    accounts.    These  accounts are  covered
    -11-
    under contract of McGowan Associates.  If
    I  don't like  Paul Arpin's  service then
    those  accounts aren't going  to be going
    on their trucks.
    The  district  court  was  clearly  correct  in  ruling  that
    McGowan was  a broker under  the ICC statute  and regulations
    and, as such, was required to be licensed by the ICC.3
    Miscellany
    McGowan  argues  that the  district court  erred by
    basing its decision on testimony not in evidence and refusing
    to admit the entire deposition transcript of Michael McGowan.
    McGowan quotes the following  statement in the district court
    opinion for his claim that the opinion was based on testimony
    not in evidence:
    McGowan    exercised     discretion    in
    allocating  business  between  the  three
    haulers that he represented.  Although at
    trial McGowan adamantly denied having any
    such  control  or influence,  McGowan had
    previously boasted that if he didn't like
    the  service  that  Arpin was  providing,
    that  he wouldn't send accounts to Arpin.
    He also had  bragged that moves  would be
    booked  through Arpin only  if he allowed
    them to be.
    3  McGowan has devoted over 18  pages of his brief to arguing
    that in  1980 Congress  exempted household goods  agents from
    regulation by the ICC and that McGowan did not need a license
    because he was a household goods agent.  McGowan may be right
    about what Congress did in 1980, but since we have found that
    McGowan  was  a  broker,  not  an   agent,  the  argument  is
    pointless.
    We also reject without discussion McGowan's contention that
    Arpin should be estopped from avoiding the contract.
    -12-
    It is  true that the  last sentence from  the excerpt  has no
    evidentiary  foundation.  This,  however, was harmless error.
    As already  discussed, there was  sufficient evidence without
    the "bragging" referenceto establish thatMcGowan was abroker.
    We do  not think that  the district court  erred in
    refusing to admit McGowan's  entire deposition into evidence.
    The record shows the following colloquy between the attorneys
    and  the  court prior  to and  following  its exclusion.   In
    reading the excerpt,  it is  important to keep  in mind  that
    Galli  represented  Arpin  and  that  McGowan's  attorney was
    Gorham.
    MR.  GALLI:   Your  Honor, rather  than
    going through a lot more questions I have
    sections of Mr. McGowan's  deposition I'd
    like to offer into evidence under Rule 32
    as an exhibit.
    THE COURT:  Are they marked?
    MR. GALLI:  They are marked, your Honor.
    What I've done is  I've taken each of the
    pages    and   I    haven't   obliterated
    everything, I've  just put a  yellow mark
    down the  lines that I  would offer  into
    evidence on each page.   There's a yellow
    mark  on the left showing that lines that
    I'd ask to offer into evidence.
    THE COURT:  Are there any objections?
    MR. N. GORHAM:  I'd just like to know
    what the deposition transcripts are being
    offered for?
    THE COURT:  As evidence.
    MR. N. GORHAM:  I have no objection.
    I  don't  see the  relevancy of  it, your
    Honor.
    THE COURT:  The relevance of what?  It's
    evidence.  It's treated  just the same as
    the witness's  oral testimony.   How many
    pages have I got to read?
    MR. GALLI:  Your Honor, there are 20,
    -13-
    25 pages but some of them have only three
    or four lines.
    THE COURT:  Hand it up.
    (DEPOSITION  TRANSCRIPT  HANDED  UP  TO
    COURT)
    MR.  N. GORHAM:   Your  Honor, might  I
    make  a suggestion.  The whole deposition
    should be put in evidence.
    THE COURT:  I am  not going to read the
    whole  deposition.   You're not  going to
    take  my time up with that.  I have a lot
    of other  things to do  tonight which  is
    the only time I get to read these things.
    MR.  B. GORHAM:   Your Honor,  could we
    have a minute to review this?
    THE COURT:  You  should have seen  this
    before.  Did you  give this to them ahead
    of time?
    MR.  GALLI:    I  just  did  this  this
    morning, your Honor.
    THE COURT:  You  don't even give them a
    chance to look at it.
    MR. GALLI:  Well, I'm  sorry.  I did it
    this morning.
    THE COURT:   I kind of  get the feeling
    that it's my fault.
    MR. GALLI:  I'm sorry, your Honor.
    THE  COURT:   You can go  without lunch
    and read it then, okay.  Let's go.   What
    else do you have?
    In  the court's  final remarks,  he told  Gorham to
    read  the  marked  portions  of  the  deposition  during  the
    luncheon recess.   Implicit in  this admonition was  that the
    court would consider admitting any parts that Attorney Gorham
    thought  contradicted  the  parts  marked  by  his   opponent
    Attorney Galli.  The record is barren of any future reference
    to McGowan's  deposition.  Neither the  entire deposition nor
    any  portion of it was subsequently offered in evidence.  Nor
    was it marked for identification.
    Fed. Rule Civ. Procedure 32(a)(4) provides:
    -14-
    If only part of a deposition is offered
    in evidence  by a party, an adverse party
    may require the offeror to  introduce any
    other part which ought  in fairness to be
    considered with the part  introduced, and
    any party may introduce any other parts.
    -15-
    Fed. Rule of Evid. 106 is to the same effect:
    Rule 106.  Remainder of or Related
    Writings or Recorded Statements
    When a writing or recorded statement or
    part thereof is introduced by a party, an
    adverse    party    may    require    the
    introduction  at that  time of  any other
    part  or  any other  writing  or recorded
    statement which  ought in fairness  to be
    considered contemporaneously with it.
    Attorney  Galli offered  marked parts  of McGowan's
    deposition in evidence.  The court was ready to receive them.
    At  that  point Attorney  Gorham  suggested  that "the  whole
    deposition  be put  in  evidence."   The court  rejected this
    suggestion;  the judge  then suggested  that Gorham  read the
    parts of  the  deposition that  had  been marked  during  the
    luncheon recess.   Neither  attorney did anything  further in
    regard to the deposition.
    We  do not  think that  a  district court  judge is
    obligated to  go through the  entire deposition of  a witness
    who  had testified  at the  trial to  determine if  there are
    conflicts in  the deposition  testimony or if  the deposition
    contradicts the  courtroom testimony  of the witness.   Under
    our adversary system,  that is the  work of the lawyers.   It
    was not done here and the judge should not be blamed.
    -16-
    Finally,  McGowan  argues that  the court  erred in
    dismissing  his counterclaim for  interference by  Arpin with
    his 1987 contract with Richard Coriell & Company.4
    We  affirm for  the reasons  given by  the district
    court in ruling from the bench:
    The evidence in the  case is that there
    was an agreement entered into on December
    23rd  of  1987  by  and  between  McGowan
    Associates    Incorporated,   hereinafter
    referred  to as the  sales corporation, a
    duly  organized  New  Jersey  corporation
    with  a place of  business located  at 20
    Stonehouse Road,  Millington, New Jersey,
    and    Richard   Coriell    and   Company
    Incorporated, a duly organized New Jersey
    corporation, with a place of  business at
    the same address.  The contention is made
    in  connection   with  the  counterclaim,
    among other things, that the Plaintiff in
    this action  intentionally and unlawfully
    interfered     with     a     contractual
    relationship   existing    between   UTS,
    McGowan  and  Coriell.   The  evidence is
    that  the  agreement,  as  indicated,  at
    least insofar as  McGowan's interest  are
    concerned, was between McGowan Associates
    Incorporated and Coriell.   Since McGowan
    Associates  Incorporated does  not appear
    to be a party to this action it seems  to
    me that  under no circumstances  could it
    recover, under no circumstances could Mr.
    McGowan  recover, that the only party who
    could recover for interference  with this
    contract are the parties to the contract,
    and the party to the contract is  McGowan
    Associates  Incorporated  which is  not a
    party to this litigation.
    4 The dismissal of  the other two counts of  the counterclaim
    have not been appealed.
    -17-
    We have examined  the counterclaim  carefully.   It
    specifically    names    as    counter-claimants    Universal
    Transportation  Services, Inc.  and Michael  J. McGowan.   It
    does state that Michael McGowan is doing business as  McGowan
    Associates,  Inc.   Individuals, however,  do not  usually do
    business  in  the name  of an  incorporated  entity.   As the
    district court pointed out,  the contract which was allegedly
    interfered with by Arpin was between McGowan Associates, Inc.
    and  Coriell;  it  was  not  between  McGowan  d/b/a  McGowan
    Associates  and  Coriell.   There  can  be  no question  that
    McGowan Associates, Inc. is not a party to this litigation.
    McGowan argues, in effect, that we should disregard
    the separate corporate entity and treat him as the real party
    in  interest.   We do  not think  that we  should pierce  the
    corporate veil at the behest of the individual  who fashioned
    it  so as  to  further the  individual's personal  interests.
    That would make a nullity of the purpose and use of corporate
    structures.  Nor can  we ignore pleadings drawn by  those who
    knew or should  have known of  the specific corporate  entity
    that  executed the  contract  in  issue.    To  do  so  would
    constitute a  judicial amendment  to the pleadings  after the
    trial was over.
    The judgement of the district court is affirmed.
    Costs on appeal awarded to Arpin.
    Costs on appeal awarded to Arpin.
    -18-