This section contains the nature of the case and procedural background.

New England Tank Industries (P) sued J.F. White Contracting Company (D) for substandard workmanship in a contract to construct oil tanker docking facilities. The dock was made of four metal cylinders each filled with gravel and connected by catwalks. P claimed that one of the cylinders was out of round. D introduced no evidence that contractual provisions barred subsequent lawsuits for workmanship after approval by P's engineers. The jury awarded damages to P. D appealed based on the contractual provision that invoice approval by P’s engineers was binding on both parties even though D did not raise the issue at trial. D also contends that it was error to allow the out of round issue to proceed to the jury because there was insufficient evidence presented to allow the jury to make that determination.

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