082976P.pdf   05/25/2010  Friedman & Friedman, Ltd.  v.  Tim McCandless, Inc.
   U.S. Court of Appeals Case No:  08-2976
                          and No:  08-3128
   U.S. District Court for the Northern District of Iowa, Waterloo   
   [PUBLISHED] [Murphy, Author, with Wollman and Bye, Circuit
   Judges]
   Civil case - contracts. Unpled affirmative defense was identified in the
   jointly stipulated final pretrial order and was properly preserved as part
   of the issues for consideration by the jury; the district court erred in
   failing to instruct the jury on the issue of whether plaintiff unreasonably
   delayed giving notice of airplane's defects to defendant, as an affirmative
   finding on this issue would have provided a defense to plaintiff's breach
   of contract claim; it would be error to affirm the damage award based on
   both the contract and the negligent representations counts when it is
   possible that a portion of the damages was awarded on the invalidly
   submitted contract theory; the matter is remanded for a new trial on both
   the contract and fraudulent misrepresentation liability theories. Judge
   Bye, dissenting.