817 F2d 102 Piper Roofing Company v. Florafax International Inc

817 F.2d 102
Unpublished Disposition

J. A. PIPER ROOFING COMPANY Plaintiff--Appellee,
v.
FLORAFAX INTERNATIONAL, INC. Defendant--Appellant.

No. 86-3096.

United States Court of Appeals, Fourth Circuit.

Argued March 3, 1987.
Decided April 20, 1987.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Before HALL and WILKINS, Circuit Judges, and TIMBERS, Senior Circuit Judge of the United States Court of Appeals for the Second Circuit, sitting by designation.

Andrew White, Jr. (Haynsworth, Marion, McKay & Guerard, on brief), for appellant.

Steven Edward Farrar (Fletcher C. Mann; Nancy Hyder Robinson; Leatherwood, Walker, Todd & Mann, on brief), for appellee.

PER CURIAM:


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1

Appellant Florafax International, Inc. appeals (1) the denial of its motions to amend the answer, (2) the exclusion of evidence, and (3) the directed verdict in favor of Appellee J. A. Piper Roofing Company. We affirm and remand the case for entry of judgment.1

2

In this breach of contract action, Piper Roofing sought to collect the balance due under its contract with Florafax for replacement of a warehouse roof including "Tear[ing] off solar collectors, placing framework and plastic sheets on ground." Florafax counterclaimed, alleging that Piper Roofing had destroyed the solar collectors in the removal process, contrary to an oral modification of the contract requiring that the collectors be retained in place or removed in reusable condition.

3

The only evidence Florafax offered as proof of the oral modification was the deposition testimony of its former President, Richard Tucker. The trial court excluded the testimony as to the oral modification based on the lack of consideration. We affirm on the reasoning of the trial court. J.A. Piper Roofing Co. v. Florafax International, Inc., C.A. No. 6:85-3226-3K (D.S.C. Sept. 29, 1986).

4

In the absence of any admissible evidence of the alleged oral modification, the trial court properly directed a verdict for Piper Roofing.

5

Finally, we find no abuse of discretion by the trial court in denying the motions of Florafax to amend its answer to assert the affirmative defenses of waiver and promissory estoppel.

6

AFFIRMED AND REMANDED.

1

This case was referred to the magistrate for trial pursuant to 28 U.S.C.A. Sec.636(c) (West Supp. 1987) upon consent of the parties. Although the trial court entered an order awarding damages to Piper Roofing, no judgment was entered due to a clerical oversight. We remand the case for entry of judgment consistent with the trial court order of September 29, 1986