336 F2d 6 Valley Stream Flooring Corp v. Green Manor Construction Co

336 F.2d 6

GREEN MANOR CONSTRUCTION CO., Inc., et al., Defendants, Appellees.

No. 6280.

United States Court of Appeals First Circuit.

Heard May 6, 1964.

Decided July 17, 1964.

Julian L. Yesley, Boston, Mass., with whom John M. Kahn, Steven James Cohen, and Peabody, Koufman & Brewer, Boston, Mass., were on brief, for appellants.

James J. Hennessey, Boston, Mass., for appellees.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.


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This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered June 19, 1963 in accordance with the opinion of Judge Ford, 233 F.Supp. 608, dated June 13, 1963. The action below was brought by a subcontractor against the general contractor for an Air Force housing contract in which Valley Stream Flooring Corp. sought to recover from appellees, Green Manor Construction Company and the surety on its payment bond, the value of labor and materials furnished for which it alleged it had not been paid. Appellees counter-claimed against appellants, Valley Stream and the surety on its performance bond, for damages for alleged breach of the subcontract by the subcontractor. The case was tried to the court sitting without a jury and judgment was rendered for appellees on both claims.


The appeal comes before this court upon a thoroughly incomplete record. Appellants have culled from the transcript of the trial only that part of the testimony favorable to their case and have ignored all else, giving this court a distorted picture of what transpired below. The record omits virtually all of appellees' cross-examination; it fails to identify, other than by name, many of the witnesses; and, most important, it does not contain a good deal of the evidence relied upon by the district court in formulating its opinion, an opinion which we are asked to reverse as unsupported in law and evidence. The requirements an appellant must fulfill if he would have this court consider whether or not the evidence below warranted a finding for the appellee have recently been reiterated by Judge Aldrich in Chernack v. Radlo, 331 F.2d 170 (1st Cir. 1964). Without repeating them here, it will suffice to state that they are not met by the record appellants have presented before us.


Furthermore, we can find no error in the lower court's application of the law to the facts as found by it.


Judgment will be entered affirming the judgment of the district court.