IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60654

_____________________

DEERE & COMPANY,

Plaintiff - Counter Defendant - Appellee-Cross-Appellant,

versus

EDWARD JOHNSON, JR., doing business

as F & E Farms,

Defendant - Counter Claimant - Appellant-Cross-Appellee.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Mississippi

_________________________________________________________________ November 12, 2001

Before KING, Chief Judge, and JOLLY and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Dee re financed a combine its dealer, Parker Tractor &

Implement Company (“Parker”), sold to Johnson. Johnson was unhappy

with the combine because it would not do the job. Deere was

unhappy with Johnson because he failed to make any payments on the

loan. Johnson wrote Deere a letter revoking acceptance of the

combine. Deere refused to take it back. Johnson continued to use

the combine. Deere finally sued Johnson to collect the unpaid

balance on the loan. Johnson counter-claimed against Deere, as the

manufacturer of the combine, for breach of implied and express

warranties, breach of the implied warranty of fitness for a2

particular purpose, and intentional misrepresentations. The jury

returned a verdict that effectively awarded zero to both parties.

The district court conformed the pleadings to the evidence and

entered a quantum meruit award for Deere for the rental value of

the combine while Johnson was using it.

Today’s appeal addresses three issues: First, whether Johnson

effectively rev oked acceptance in the view of his continuing to

assert ownership of the combine and failing to return it to Deere;

second, whether the district court er red in conforming the

pleadings to state a quantum meruit claim for Deere and awarding

Deere a judgment on that basis; and finally, whether Deere

presented sufficient evidence of the rental value of the combine.

W e hold that under the circumstances of this case, John son

effectively revoked acceptance of the combine; that the district

court erred in conforming the pleadings to state a quantum meruit

claim and in entering a judgment for Deere; and that Deere

presented evidence to support the jury’s determination of the

rental value of the combine. At the end of the day, this case is

a “wash”-–neither party receives anything. Accordingly, we reverse

and remand for entry of a take-nothing judgment.

I

In 1994, Ed ward Johnson bought a combine from Parker, a

retailer for Deere located in Tunica, Mississippi. Johnson made a

down payment of $30,634 .36. He financed the remainder of the1 In this case, a central issue -- which the parties pled,

tried to the jury, retried in post-verdict motions, briefe d, and

orally argued on appeal –- is whether Johnson effectively revoked

the sale contract for the combine. Johnson entered into this

contract with Parker. We note, in passing, that there is nothing

in the record that suggests (1) that Deere and Parker are one

entity or (2) that Parker assigned Deere its rights under the sale

contract.

Moreover, even if we assumed that Deere, not Parker, had all

the rights under the sale contract, this fact would still fail to

explain why the parties vigorously litigated the validity of the

underlying sale contract in this action for collection on a loan

contract. The loan contract and the sale contract are independent

unless there is a contractual prov ision which states otherwise.

Neither contract contains such a provision.

Undaunted, our analysis of the issues proceeds as tried to the

jury and briefed on appeal; that is, we assume Deere (not Parker)

was potentially entitled to t he reasonable rental rate of the

combine and that Johnson’s revocation of the sale contract (if

effective) would have nu llified his obligations under the loan

contract.

3 purchase price with Deere, using the combine as security for the

loan. 1 The combine was a lemon. Throughout the harvest season of

1994, Johnson made service requests to Parker. Each time Parker

sent its mechanic to Johnson’ s farm to repair the combine.

Finally, on March 3, 1995, Johnson sent a letter to Deere, which

revoked acceptance, tendered the combine, and asked for a

replacement. In a letter dated May 12, 1995, Deere refused to take

the combine back. It stated “Deere & Company certainly sees no

reason to replace this combine and it is not willing to accept it

back.” Johnson continued to use the combine during the harvest

season of 1995, as well as during the spring of 1996. After this

lawsuit was initiated, Deere filed a replevin action, repossessed

and sold the combine in July of 1997. Although Johnson used the4

combine from 1994 until the spring of 1996, he made no payments on

the loan contract.

II

On September 26, 1995, Deere filed a complaint seeking to

collect on the contract. Johnson counter-claimed. He alleged

breach of contract, breach of express and implied warranties,

breach of the implied warranty of fitness for a particular purpose,

and intentional misrepresentations. Johnson sought lost profits,

punitive and consequential damages. The jury found for Johnson on

his breach of warranty clai m and a gainst Deere on its breach of

contract claim. The jury awarded Johnson the down payment that he

had made on the combine, $30,634.86, but subtracted $70,000 from

this award for the fair rental value of the combine for the period

of Johnson’s use. This calculation was exactly what the verdict2 The verdict form completed by the jury reads as follows:

VERDICT

On Deere & Company’s claim against Edward Johnson, Jr. for

breach of the variable rate installment contract, we the jury

find:

_______ For Deere & Company and award contr act damages in

favor of Deere and Company in the amount of $_____

Plus interest at a rate of $_____, per day from and

after June 7, 2000.

X For Edward Johnson, Jr.

On Edward Johnson’s claim against Deere & Company for breach

of warranty, express or implied, we the jury find:

X For Edward Johnson, Jr. and award damages as

follows:

$30,634.86 Down Payment

0 Interest on Down Payment

0 Incidental expenses incurred

LESS the fair rental value of the equipment for the

period of use by Johnson in the amount of $70,000

.

________ For Deere & Company

6/09/00

Date

5 form instructed the jury to do. 2

Deere then filed a post-verdict motion that sought (a)

judgment as a matte r of law under Rule 50 or, alternatively, (b)

the amendment of the pleadings to conform to the evidence presented

under Rul e 15(b); that is, to state a claim against Johnson in

quantum meruit. Johnson filed his own post-verdict motion. He6

sought (a) judgment notwithstanding the verdict, asking the court

to set aside the jury’s determination of the rental value of the

combine and award him the full down payment, or (b) an alteration

or amendment of the judgmen t to that same effect, or (c) a new

trial on damages only, and (d) attorney’s fees.

In resolving this barrage of post-v erdict motions, the

district court denied Johnson’s motions in all respects except as

to prejudgment interest on the down payment, denied Deere’s motion

f or judgment as a matter of law, and granted Deere’s motion t o

amend the pleadings.

Based on the legal theory of quantum meruit

-- raised for the

first time in Deere’s post-verdict 15(b) motion -- the district

court amended the ple adings and entered an amended judgment for

Deere. The amended judgment awarded Deere $70,000 minus Johnson’s

down payment and any prejudgment interest on that down payment.

Notwithstanding that (1) the jury had found in favor of Johnson and

against Deere, and (2) the district court had found against Deere

as a matter of law on all of its asserted claims, Deere walked away

from the district court with about $35,000.

Both parties now appeal.

III

We first address Deere’s appeal. Deere appeals the district

court’s denial of its motion for judgment as a matter of law with

respect to its contract claim.7

Deere moved for judgment as a matter of law twice –- once

during trial and once in its post-verdict motion. Deere’s argument

is that it was entitled to collect on the loan contract for the

combine because Johnson’s continued use of the combine nullified

his revoc ation of acceptance as a matter of law. The district

court denied both motions. Deere only appeals the denial of the

post-verdict motion. This ruling of the district court is to be

distinguished from its ruling granting Deere’s 15(b) motion, which

we address later in this opinion.

We review the denial of a motion for judgment as a matter of

law de novo. C onkling v. Turner , 18 F.3d 1285, 1300 (5th Cir.

1994).

It is not surprising that Mississippi law requires that buyers

pay the contract price for any goods accepted , unless that

acceptance is later effectively revoked. M I SS

. C ODE A NN

. §§ 75-2-

607(1), 75-2-608 (1999). Deere argues that because Johnson failed

to revoke his acceptance of the co mbine, he is bound by the

contract, and thus the jury erred in awarding Johnson the return of

his down payment. On appeal, the question is whether, viewing the

evidence in the light most favorable to Johnson, a reasonable jury

could h ave found that Johnson revoked acceptance of the combine.

See Boeing Co. v. Shipman

, 411 F. 2d 365, 374 (5th Cir. 1969)(en

banc) ove rruled on other grounds by Gautreux v. Scurlock

Marine,Inc. , 107 F.3d 331 (5th Cir. 1997)(en banc).3 The Mississippi Code states:

(1) The buyer may revoke his acceptance of a lot or

commercial unit whose n on-conformity substantially

impairs its value to him if he has accepted it

(a) on the reasonable a ssumption that its nonconformity would be cured and it has not been

seasonably cured; or

(b) without discovery of such nonconformity if his

acceptance was reasonably induced either by

the difficulty of discovery before acceptance

or by the seller’s assurances.

(2) Revocation of acceptance must occur within a

reasonable time after the buyer discovers or should have

discovered the ground for it and before any substantial

change in the condition of the goods which is not caused

by their defects. It is not effe ctive until the buyer

notifies the seller of it.

(3) A buyer who so revokes has the same rights and duties

with regard to the goods involved as if he had rejected

them.

M ISS

. C ODE

. A NN . § 75-2-608 (1999).

8 As we have noted, the Mississippi version of the UCC provides

for the revocation of acceptan ce. 3 A buyer revoking acceptance of

goods has the same duties as a buyer rejecting a shipment of goods;

in most case s, a buyer must discontinue asserting any ownership

over the goods. M ISS

. C ODE A NN

. § 75-2-602(2)(a)(1999)(“after

rejection any exercise of ownership by the buyer with respect to

any commercial unit is wrongful as against the seller”). It is

undisputed that Johnson notified Deere of his revocation in a

letter of March 3, 1995. It is further undisputed that Johnson

continu ed to use the combine after this letter of revocation.

Still further, Johnson generated a tax benefit for h imself by

claiming depreciation of the combine on his tax forms in both 1995

and 1996. Without doubt, these two actions represent ownership4 Teel went on to hold that the seller was entitled, under the

theory of quantum meruit, to the reasonable rental rate for the

copier. I d. at 860. Deere primarily relies on Teel to support its

quantum meruit claim. We do not disagree that Deere could have

alleged a colorable claim based on quantum meruit, had it done so

in a timely and proper way. The fact that Deere could have made

9 activities by Johnson. The question remains: Do these activities

nullify Johnson’s revocation of acceptance as a matter of law?

Mississippi courts have addressed this question in several

cases. In N orth River Home s v. Bosarge , 594 So.2d 1153 (Miss.

1992) the court addressed whether a family’s failure to move out of

a “lemon” mobile home waived their revocation of acceptance. The

court, in finding no waiver, reasoned that “[the family’s] mistaken

belief that North River would fulfill its assurances to repair the

defects is but one reason why the Bosarges did not move out of

their home. Another reason is simple and [understandable]: When

you tie up all your savings into purchasing a home, you cannot take

it and park it somewhere. [Y]ou have got to live in it until you

get the people to clear your lot so you can put another [mobile

home] on it.” Id. at 1160 (internal quotation marks omitted).

In a case involving a defective cop ier, however, the court

held that the failure to return the copier did vitiate the

revocation of acceptance. Nevertheless, the court noted in dicta

that this might not always be true. J .L. Teel Co., Inc. v. Houston

United Sal es, Inc. , 491 So.2d 851, 859 (Miss. 1986)(stating

“without doubt, failure to surrender the copier did not per se

render ineffective Houston’s revocation“). 4the quantum meruit claim, however, is irrelevant to whether Johnson

revoked acceptance.

10 Other states agree that continued use of non-conforming goods

does not, in all cases, waive the revocat ion of acceptance. S ee

Wilk Paving, Inc. v. Southworth-Milton, Inc.

, 649 A.2d 778, 781-82

(Vt. 1994)(failure to retur n defective asphalt roller does not

forfeit t he revocation of acceptance); M cCullough v. Bill Swad

Chrysler-Plymouth, Inc.

, 449 N.E.2d 1289, 1291 (Ohio 1983) (failure

to return autom obile did not forfeit revocation); A ubrey’s R.V.

Center, Inc. v. Tandy Corp.

, 731 P.2d 1124, 1129 (Wash.App.Ct.

1987)(failure to return software did not forfeit revocation).

Allowing continued use of the good is not the general rule,

however. Typically, the law requires that a buyer return a nonconforming good, purchase a replacement, if necessary, and then sue

for breach. M I SS

. C O DE A NN . §§ 75-2-602, 75-2-714 (1999). The

rationale is that even non-conforming goods have value, and by

requiring a prompt return of the goods, the law enables a seller to

resell the goods before they substantially depreciate in value. As

the Mississippi Supreme Court has noted, however, a buyer, with no

ability to replace the defective good, suffers substantial injury

if forced to cede ownership of that good. The law thus weighs the

two eff ects; that is, where the cost of replacement is low, the

injury to the seller from the depreciation of the good outweighs

the injury to the buyer that results from surrendering ownership.

Thus, in such a situation the law requires the return of the non-11

conforming good. On the other hand, when the cost of replacement

is high, the injury resulting to the buyer from returning the good

outweighs the seller’s injury of depreciation; hence, in this

situation the cases do not penalize the buyer when he reasonably

retains the non-conforming good.

As we have noted, Mississippi case law employs this principle.

In North Rivers Homes

, the cost to the family of giving up the

trailer was high. Hence, the court held that the failure to “moveout” did not waive revocation. On the other hand, in the T ee l

case, the company easily could have purchased another copier, and

hence, the court held that the failure to surrender the copier

nullified the attempt to revoke acceptance of the copier.

Here, the evidence show s that Johnson’s cost of replacement

was high. Johnson’s credit was adversely affected when he failed

to make payments on the loan for the combine. The record reflects

that Johnson was operating close to the margin; he admittedly could

not make but a few of the payments. It is unlikely that any

combine dealer would have either rented or sold to Johnson under

these circumstances. Without a combine, Johnson’s ability to farm

would be severely impaired. With little farm production, he could

not mitigate the damages he suffered as a result of the defective

combine. Thus, as with the mobile home owners in N orth Riv e r

Homes

, the record demonstrates that the damage to Johnson from

ceding ownership of the combine would have been high.12

Deere also maintains that Johnson continued t o use the

combine, which naturally caused depreciation, and that this change

of the good rendered his revocation of accept ance ineffective.

Other than depreciation, Deere does not allege that Johnson damaged

the combine. Deere bases its depreciation-as-change argument on

the language of the statute: “[R]evocation must occur within a

reasonable time ... and before any substantial change in the

condition of the goods not caused by their defects.” M ISS

. C ODE A NN

.

§ 75-2-608(2) (1999). Deere cites no cases in which depreciation

by itself was deemed a substantial change under this section of the

Mississippi UCC. It seems that in almost all cases involving a

“substantial change” the buyer engaged in some activity which

altered the goods. S ee Intervale Steel Corp. v. Borg & Beck Div.,

Borg-Warner Corp.

, 578 F.Supp. 1081 (E.D.Mich. 1984)(buyer broke up

goods into parts), aff’d

, 762 F.2d 1998 (6th Cir 1985) ; Trinkle v.

Schumacher Co. , 301 N.W.2d 255 (Wis.Ct.App. 1980)(buyer cut

fabric); Toyomenka (America), Inc. v. Combi ned Metals Corp. , 487

N.E.2d 1172 (Ill.App.Ct. 1985)(buyer cut goods into narrow strips).

That simple depreciation alone usually does not constitute a

substantial change in the condition of the good is consistent with

the doctrine of rev ocation of acceptance because the doctrine is

meant to remedy a situation in which a latent defect arises. If

simple depreciation of the non-conforming g ood was enough to

nullify the revocation of acceptance, a buyer might not be able to5 To be precise, Deer e did demand the return of the combine

after the initiation of this lawsuit. Nevertheless, up to the

filing of the lawsuit in 1995, the evidence indicates that Deere

would not accept the return of the combine.

13 revoke acceptance of a good with a latent defect.

Furthermore, Deere’s refusal to accept the return of the

combine undermines its argument that Johnson failed to revoke

acceptance as a matter of law. How does one return a combine when

the dealer refuses to take it back –- park it, perhaps, illegally

in their lot? We find unpersuasive the premise of Deere’s

argument: that a seller can refuse to accept the return of a nonc onforming good, and then claim that the buyer nullified his

revocation by not returning the good in question. 5

Most important for the case at hand, the issue of whether a

buyer has effectively revoked acceptance is a factual one. Royal

Lincoln-Mercury Sales, Inc. v. Wallace

, 415 So.2d 1024, 1028 (Miss.

1982). For the reasons outlined above, we think that a reasonable

jury could have concluded

-- despite Johnson‘s continued use of the

combine

-- that he effectively revoked acceptance of the combine on

March 5, 1995. The district court’s denial of Deere’s motion for

judgment as a matter of law was thus correct.

IV

We turn next to Johnson’s appeal. Johnson argues first that

the district court erred when it amended the pleadings under Rule

15(b) and consequently awarded damages to Deere. Second, Johnson

argues that there was insufficient e vidence to support the jury6 Notwithstanding the remaining analysis in this section, we

note, in passing, that even if the amendment of the pleadings under

Rule 15(b) were proper, Deere still should not re cover, without

taking the appropriate steps to somehow set aside the verdict

-- a

verdict that found against Deere and awarded it nothing. Rule

1 5(b) allows a court to modify the pleadings to conform to th e

evidence presented, but the rule does not provide the authority to

reverse the jury’s verdict and then turn it bottom-side up. The

jury’s verdict in this case has never been set aside; indeed, the

district court denied both Deere’s and Johnson’s motions for

judgment as a matter of law. Neither the plaintiff nor the

district court addressed this lacuna in the reasoning that led to

the entry of a judgment for Deere based on the conformed pleadings.

Nevertheless, because the parties brief ed the issue as one of

procedural due process and fair notice, we decide solely on that

basis.

14 determination of the fair rental value of the combine.

A

We first address Johnson’s appeal of the district court’s

amendment of the pleadings under Rule 15(b) of the Federal Rules of

Civil Procedure, and the ensuing judgment entered for Deere. After

the jury returned a verdict for Johnson, Deere filed a 15(b) motion

to amend the pleadings to conform to the evidence presented. The

motion raised the legal theory of quantum meruit

-- a legal theory

that neither party had raised prior to the jury verdict. The

district court granted the motion. It then awarded Deere the

rental value of the combine minus Johnson’s down payment and any

interest on that down payment. Johnson argues, in short, that the

amendment of the pleadings violated his right to procedural due

process because it left him with no chance to devise an appropriate

defense to the legal theory of quantum meruit. 6

Rule 15(b) of the Federal Rules of Civil Procedure provides:7 According to the leading treatise on federal procedure, “Rule

15(b) [is] designed to avoid the tyranny of formalism that was a

prominent charact eristic of the former practice and to avoid the

necessity of a new trial.” Charles Wright, et al., F E DERAL P RACTICE

AND P ROCEDURE § 1491 (2d ed. 1990).

15 Wh en issues not raised by the pleadings are tried

by express or implied consent of the parties, they

shall be treated in all respects as if they had

been raised in the pleadings. Such amendment of

the pleadings as may be necessary to cause them to

conform to the evidence and to raise these issues

may be made upon motion of any party at any time,

even after judgment

.

Id. (emphasis added). We review Rule 15(b) amendments for abuse of

d iscretion. T riad Electric & Controls, Inc. v. Power Syst ems

Engineering, Inc. , 117 F.3d 180, 191 (5th Cir. 1997).

As has been often said, the principal purpose of Rule 15(b) is

judicial economy. If the parties either expressly or implicitly

consented to having a matter litigated, and the evidence provides

the court with sufficient guidance to resolve the matter, amending

the pleadings saves judicial resources. 7

Nevertheless, saving resources usually takes a back seat to

procedural due process. Thus, in the absence of express consent,

“trial of unpled issues by implied consent is not lightly to be

inferred under Rule 15(b), [and] such inferences are to be viewed

on a case-by-case basis and in light of the notice demands of

procedural due process.” T ria d Electric , 117 F.3d at 193-94

(quoting Jimenez v. Tuna Vessel Grananda

, 652 F.2d 415, 422 (5th

Cir. 1981). The due process concerns are most acute when a party16

seeks a p leading amendment post-verdict. T .J. Stevenson & Co.,

Inc. v. 81,193 Bags of Flour , 629 F.2d 338, 370 (5th Cir.

1980)(“[I]t is not often that amendments are allowed after the

close of evidence, since the opposing party may be deprived of a

fair opportunity to defend and offer an y additional evidence.”);

see also M organ and Culpeper, Inc. v. Occupational Safety and

Health Rev iew Commission , 676 F.2d 1065, 1068 (5th Cir.

1982)(“[W]hile it is true that amendments

... should be freely

granted, it is just as certain that the company charged should be

given an opportunity to fully respond to the new theories

presented.”).

In this case, the district court amended the pleadings to

allow for the legal theory of quantum meruit, but did so after the

c lose of evidence and after the jury returned its verdict. Our

review of the record shows that neither party mentioned, even in a

whisper, quantum meruit prior to Deere’s 15(b) motion. Thus we are

not surprised that Deere points to nothing in the record that would

support any such finding of express consent. Consequently, we must

find that the parties did not expressly consent to having this

theory tried to the jury. Express consent, however, is only one of

two bases for amendment under Rule 15(b); implied consent provides

a second basi s, and this seems to be the centrality of Deere’s

argument.

Deere contends that it actually raised and litigated the

quantum meruit claim at trial, even though it never used the “magic17

words” quantum meruit. Deere argues that Johnson implicitly

consented to having this claim tried because he failed to object to

evidence offered about the reasonable rental value of the combine.

Our review of the record shows that this case was tried as a

contract case in which Deere sought to hold Johnson liable for the

full amount of the loan contract. Deere introduced evidence with

respect to the rental value of the combine to offset Johnson’s

claim for the return of the down payment in the event that the jury

found for Johnson. The fact that neither Deere nor Johnson

considered the ren tal evidence under a quantum meruit theory is

evidenced by the verdict form itself. If, as Deere argues, a

quantum meruit claim was implicitly under stood by both parties,

Deere surely would have objected to the verdict form, which

p rovided no basis for a quantum meruit award in favor of Deere.

Finally, as we have suggested earlier, the amendment of the

pleadings to state a quantum meruit claim implicates the due

process clause. If Johnson had been put on notice about this claim

before trial, he would have had an opportunity to offer evidence to

negate Deere’s contention that he expected to pay f or the use of

the com bine after he offered to return it. This evidence would

have been available to Johnson, especially in the light of Deere’s

initial refusal to accept the combine’s return. Because Deere

failed to raise the claim a t any point during the trial, Johnson

was not on notice as to the issue that was allegedly being

litigated, and thus could not construct an appropriate defense. In8 Johnson objected on hearsay grounds to the introduction of an

appraisal estimating the number of hours on the combine. The court

did not abuse its discretion in allowing the introduction of this

evidence because the appraisal was made by a person with knowledge

of the hours of use on the combine and kept in the regular course

of business (i.e., the appraisal was a business record).

18 this case, amending the pleadings

-- after the close of evidence

and after the return of the verdict

-- violated Johnson’s right to

procedural due process, and thus the district court abused its

discretion by allowing an amendment under Rule 15(b). It follows

that the judgment e n tered in favor of Deere must be and is

reversed.

B

Finally, we turn to Johnson’s appeal of the denial of his

post-verdict motion for judgment notwithstanding the verdict.

Johnson’s argument to the district court -- which he reasserts on

appeal

–- was that there is insufficient evidence to support the

jury determination of the fair rental value of the combine. We

first observe that Johnson objected to only part of the evidence

that was introduced concerning the rental value of the combine. 8 In

addition, Johnson failed to object to the verdict form itself,

which allowed a set-off based on the reasonable rental value of the

combine. Finally, Johnson failed to move for a partial directed

verdict on the basis that there was insufficien t evidence to

support a set-off.

Our inquiry into the evidence supporting a jury v erdict is

especially limited when the moving party, as here, fails to seek a19

directed verdict or challenge the sufficiency of the evidence at

trial. We should inquire only “whether there was any evidence to

support the jury verdict, regardless of its sufficiency.” C oughlin

v. Capital Cement Co.

, 571 F.2d 290, 297 (5th Cir. 1978). Because

Johnson failed to object to the sufficiency of the evidence in the

district court, the Coughlin standard applies.

The verdict form clearly delineated the jury’s task, which the

jury faithfully executed. First, the jury was to decide whether

Johnson breached the contract. The jury said “no.” Second, the

jury was to decide whether Deere breached its warranty. The jury

said “yes.” If the jury found for Johnson -- which it did -- it

was to assess the amount of the down payment, the interest on the

down payment, and the incidental expenses incurred. After adding

these three sums, the jury was to determine the fair rental value

of the equipment for the period of Johnson’s use and subtract it

from the sum du e Johnson. Johnson now argues that there was

insufficient evidence to support a finding as to the fair rental

value of the combine. He is wrong on this point.

Three items of evidence support the verdict. First, an

appraisal by F&E Fa rms was entered into evidence through the

testimony of Dave Broeker. The appraisal indicated 762 total hours

on the combine. Second, Chuck Cariker, the current manager for

Parker, testifie d that the rental rate on a combine in 1996 was

about $100 an hour. Third, Walter Gray, a previous manager for

Parker, testified that the current (i.e ., 1997) rental rate for9 Johnson also contends that the district court erred in (1)

awarding Deere costs; (2) denying his request for a jury

i nstruction on punitive damages; and (3) denying his request for

attorney’s fees. We address each of these claims in the light of

our holding.

The district co urt abused its discretion only in awarding

Deere costs, and on this point is reversed. The district court did

not abuse its discretion in denying Johnson’s jury instruction on

punitive damages or his request for attorney’s fees.

20 used combines was $90 to $100 an hour. Admittedly none of this

evidence goes directly to the value of the use of th e defective

combine in 1994 or 1995. Nevertheless, our inquiry on appeal is

narrow

-- whether there was any evidence to support the jury

verdict. W e find that the testimony of these three witnesses, plus

the appraisal, is enough to support the jury verdict under this

limited standard of review.

V

In sum, we hold: (1) that the district court committed no

error when it denied Deere’s motion for judgment as a matter of law

because a reasonable jury could have concluded that Johnson revoked

his acceptance of the combine; (2) that the district court erred

when it amended the pleadings after the return of the jury verdict

based on a legal theory that was not expressly or implicitly tried

to the jury; and (3) that there was sufficient evidence to support

the jury verdict. 9

The jury in this case acted as it was instructed on the jury

form

-- a form that was agreed to by both the plainti ff and the

defendant. The verdict says that this case was a “wash” -- neither10 Chief Judge King concurs in the judgment only.

21 party is entitled to relief. We therefore reverse the amended

judgment entered by the district court an d remand for entry of a

take-nothing judgment in accordance with the verdict. 10

REVERSED and REMANDED for entry

of judgment