Henri SADACCA, Appellant, v.

NYLONET CORPORATION, Appellee.

No. 16795.

United States Court of Appeals Fifth Circuit.

April 18, 1958.

Claude Pepper, Walter A. Apfelbaum, Miami, Fla. (Claude Pepper Law Offices.. Walter A. Apfelbaum, Miami, Fla., Aaron Foosaner, Miami, Fla.., on the brief), for appellant.

Earl D. Waidin, Jr., Miami, Fla. (Smathers, Thompson & Dyer, Miami, Fla., on the brief), for appellee.

Before CAMEKON, JONES and BKOWN, Circuit Judges.

PER CURIAM.

With highly commendable candor which does not seek to disguise the fact that no exceptions, Fed.Eules Civ.Proc. rule 51, 28 U.S.C.A., were taken, appellant complains of two alleged errors ¹ in the Court's charge to the jury and urges this Court to notice them as plain error. But plain error, of which this Court may take notice, Dowell, Inc., v. Jowers, 5 Cir., 166 F.2d 214, 221, 2 A.L.R.2d 442; Louisiana & Arkansas Ry. Co. v. Moore, 5 Cir.,  229 F.2d 1, 2; Reeve Bros. v. Guest, 5 Cir., 131 F.2d 710, 712; United States v. Atkinson,  297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555, has not been demonstrated as to either.

Nor is the verdict for Nylonet in the main suit and against Sadacca on his counterclaim inconsistent as appellant insists. Although it is true that to find for Nylonet the jury had to recognize that the contract existed and was the basis for recovery, the jury was entitled to find that Sadacca had not performed. That left only the damages suffered by Nylonet and these were allowed. Indeed, if Nylonet were compelled to pay Sadacca for performance not rendered by Sadacca, its damages would be increased in like amount.

Affirmed.