
USCA1 Opinion

	




          March 19, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1779                             PAUL ARPIN VAN LINES, INC.,                                 Plaintiff, Appellee,                                          v.                    UNIVERSAL TRANSPORTATION SERVICES, INC. a/k/a                  UNIVERSAL TRANSPORTATION SERVICES LIMITED, ET AL.                               Defendants, Appellants.                                ______________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Frances J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Bownes, Senior Circuit Judge,                                    ____________________                                 Cyr, Circuit Judge.                                      _____________                                 ____________________               Nicholas Gorham, with whom Edmund L. Alves,  Jr., and Gorham               _______________            _____________________      ______          and Gorham were on brief, for appellant.          __________               Richard G. Galli, with whom Barbara Harris and Richard Galli               ________________            ______________     _____________          & Associates Incorporated were on brief, for appellee.          _________________________                                 ____________________                                    March 19, 1993                                 ____________________                      BOWNES, Senior Circuit Judge.  On October 12, 1989,                      BOWNES, Senior Circuit Judge.                              ____________________            Universal  Transportation  Services,  Inc.,  entered  into  a            contract  with Paul Arpin Van Lines, Inc.  Arpin is primarily            in the  business of  moving and  storing household  goods and            furniture.    Universal  is  in the  business  of  soliciting            customers and accounts for moving and storage companies.  The            contract  had a  term of  three years,  with a  provision for            year-to-year  extensions   after  the  three-year   term  had            expired.  On November 8, 1990,  Arpin notified Universal that            it  was terminating the contract.  After Universal refused to            accede  to   pre-term cancellation,  Arpin, on  May 3,  1991,            filed a declaratory judgment action in the district court  of            Rhode Island, seeking a  judgment that:  (a) the  contract is            "canceled,  rescinded or . . . null and void for illegality";            (b)   that   the   contract   is   "illegal,   unlawful   and            unenforceable."                      Universal duly answered, denying that there was any            legal basis for  terminating the contract.    Universal  also            brought a counterclaim  on its  own behalf and  on behalf  of            McGowan  Associates,  Inc.    The  counterclaim  states  that            Michael J. McGowan is the principal shareholder and president            of Universal  and McGowan Associates, Inc.   The counterclaim            alleged three counts:  Count I sought damages of $300,000 for            Arpin's  attempt   to  cancel  the  contract   prior  to  its                                         -2-            termination date; Count II alleged  violations of restrictive            covenants in  the contract  and claimed damages  of $300,000;            Count III  alleged interference  by Arpin with  a contractual            relationship  between  another  moving  company,  Richard  J.            Coriell  &   Co.,  Inc.,  and  both   Universal  and  McGowan            Associates, Inc.; damages of $300,000 were claimed.                      The  case  was   tried,  jury-waived,  before   the            District  Court of Rhode  Island.   The district  court found            that  McGowan and  the business  entities he  controlled were            "brokers" and as  such were  required to be  licensed by  the            Interstate  Commerce  Commission  pursuant  to  49  U.S.C.               10921.1   It is  undisputed that neither  McGowan, Universal,            nor McGowan Associates were  licensed by the ICC.   The court            therefore  held that the contract was illegal.  It found that            Universal  was  not entitled  to  commissions  it might  have            earned over the remaining two-year term of the contract.  The            court, however,  held that Universal was  entitled to collect            the commissions  it had earned  during the time  the contract            was  in  effect.   It found  that  Universal was  entitled to            "$3,231.05  of   restitution   for  unreported   and   unpaid            commissions and  $7,891.27 of  restitution for  reported, but            unpaid,                  commissions."                              Thedistrictcourt                                             alsodismissed                                                         thecounterclaim.                                            ____________________            1 49 U.S.C.   10921 provides in pertinent  part that a person            may be a broker for motor carriers, "only if the person holds            the appropriate  certificate, permit or  license issued under            this chapter authorizing the transportation or service."                                         -3-                      Appellants,   Universal  and   McGowan  Associates,            dispute  the  district court's  holding  that  they were  not            entitled to the  commissions they would have  earned over the            unexpired term of the  contract.  They have not  appealed the            district court's computation of  the commissions due them for            business  generated  during  the  time the  contract  was  in            effect.  The appellee,  Arpin, has not appealed the  award of            commissions.  The root issue on appeal, therefore, is whether            appellants can  recover,  as damages,  the  commissions  they            would  have earned if the contract had remained in effect for            its three-year term.  We hold they cannot.                          The Enforceability of the Contract                          The Enforceability of the Contract                          __________________________________                      Appellants  argue first  that  the contract  should            have  been enforced  regardless  of whether  McGowan2 was  an            unlicensed  broker.  We note first that the contract here was            not intrinsically  illegal; it was not  a criminal conspiracy            or one  whose purpose directly violated the  prohibition of a            statute.     The   question  is   whether  the   contract  is            unenforceable because McGowan did not have a broker's license            from the ICC, as required by 49 U.S.C.   10921.   The general            rule  is that an otherwise valid contract that results in the            violation  of a  public-protection statute  or  regulation is            unenforceable.  Resolution Trust  Corp. v. Home Sav.  of Am.,                            _______________________    _________________                                            ____________________            2   We  follow  the  lead   of  the  parties   and  refer  to            defendants appellants as McGowan.                                          -4-            946 F.2d 93, 96  (8th Cir. 1991); Securities  Industry Ass'n.                                              ___________________________            v. Connolly, 883 F.2d  1114, 1123 n.7 (1st Cir.  1989), cert.               ________                                             _____            denied, 496 U.S. 956  (1990); Shinberg v. Bruk, 875  F.2d 973            ______                        ________    ____            (1st Cir. 1989); Smithy  Braedon Co. v. Hadid, 825  F.2d 787,                             ___________________    _____            790  (4th Cir.  1987);  6A Arthur  Lynton  Corbin, Corbin  on            Contracts,    1512, p. 711 (1962).   See Restatement (Second)                                                 ___            of Contracts 2d   181 (1981).                      This  general  rule,  however,  is almost  as  much            honored  in the  breach as  in the  observance.   The Seventh            Circuit  has pointed  out  that "the  defense of  illegality,            being in character  if not origins an equitable  and remedial            doctrine, is not automatic but requires . . . a comparison of            the  pros and  cons of enforcement."   Northern  Indiana Pub.                                                   ______________________            Serv. Co. v.  Carbon County Coal Co., 799 F.2d  265, 273 (7th            _________     ______________________            Cir. 1986).   In that case  the court held  the contract  was            enforceable, id.; it also noted that the statute violated was                         ___            "an  anachronism a regulatory  statute on  which the  sun set            long ago."    Id. at  274.   In  Resolution  Trust the  court                          ___                _________________            observed:                        Some  federal  courts  have applied  this                      less-than-absolute rule  and have refused                      to enforce illegal  contracts only if the                      statute or regulation explicitly provides                      that  contracts in violation are void, or                      if  the  interest in  enforcement clearly                      outweighs   the  public   policy  against                      enforcement.              946  F.2d at  96-97 (footnote  and  citations omitted).   The            court held that  the case before it was not  one in which the                                         -5-            interest  in  contract  enforcement  clearly  outweighed  the            public  policy  against  enforcement  and  held the  contract            "illegal and therefore unenforceable."  Id.                                                    ___                      McGowan  relies  on  two  Supreme  Court  cases  in            arguing for enforcement  of the contract.   In Bruce's Juices                                                           ______________            v. American Can Co., 330 U.S. 743 (1947), the Court held that               ________________            it was no defense to a suit for collection of  notes that the            seller had engaged in price discriminations against the buyer            violating  the  Robinson-Patman  Act.    The  Act  prescribed            criminal  penalties and  entitled  injured persons  to treble            damages, but did not specifically render the sales, for which            the  notes   were  given,  illegal  or   the  purchase  price            uncollectible.   During the course of its  opinion, the Court            stated:                      But when the  contract sued  upon is  not                      intrinsically  illegal,   the  Court  has                      refused  to allow property to be obtained                      under   a   contract   of  sale   without                      enforcing the duty to pay for it  because                      of  violations of  the  Sherman  Act  not                      inhering  in  the particular  contract in                      suit  and  has  reaffirmed the  "doctrine                      that  'where  a  statute  creates  a  new                      offense  and  denounces  the penalty,  or                      gives  a  new  right  and   declares  the                      remedy,  the punishment or the remedy can                      be   only   that   which    the   statute                      prescribes.'"   D.R.  Wilder Mfg.  Co. v.                                      ______________________                      Corn Products Refining Co., 236 U.S. 165,                      ___________________________                      174-175;  Connolly  v.  Union Sewer  Pipe                                ________      _________________                      Co., 184 U.S. 540.                      ___            Id. at  755.  In  Kelly v. Kosuga,  358 U.S. 516  (1959), the            ___               _____    ______            Court upheld the right of a  seller to recover from the buyer                                         -6-            the unpaid balance due on a lawful sale even  though the sale            was made pursuant to an  agreement which violated   1  of the            Sherman Act.  The Court noted:                        As  a  defense to  an  action based  on                      contract, the plea of illegality based on                      violation of  the Sherman Act has not met                      with much  favor in  this Court.   Id. at                                                         ___                      518 (footnote omitted).                      We  think  that  the precedential  value  of  these            holdings  has been  limited by  two subsequent  Supreme Court            cases.   In United States v. Mississippi Valley Co., 364 U.S.                        _____________    ______________________            520  (1961),  the  Court  held  that   the  activities  of  a            consultant  retained  by the  government  violated a  statute            prohibiting one  retained by the government  from engaging in            activities constituting a conflict of interest.  It held that            this  alone  precluded  the  respondent  from  enforcing  his            consulting  contract with the government.   Id. at  525.  The                                                        ___            Court noted  that  the conflict-of-interest  statute did  not            "specifically provide for the invalidation of contracts which            are  made  in   violation  of  the   statutory  prohibition."            Nevertheless,  the Court  held that  the  consulting contract            could not be enforced.  It stated:                      Were we to decree the enforcement of such                      a  contract,  we  would be  affirmatively                      sanctioning the type of  infected bargain                      which the statute outlaws and we would be                      depriving  the  public of  the protection                      which Congress has conferred.              Id. at  563.  In Kaiser  Steel Corp. v. Mullins,  455 U.S. 72            ___              ___________________    _______            (1982), the issue was                                         -7-                      whether a coal producer, when  it is sued                      on  its promise  to  contribute to  union                      welfare  funds based on  its purchases of                      coal  from  producers not  under contract                      with the union, is entitled to plead  and                      have  adjudicated  a  defense   that  the                      promise  is  illegal under  the antitrust                      and labor laws.            Id.  at 74.    The  Court held  that  the  coal producer  was            ___            entitled to so plead.  At the start of its analysis the Court            stated:                         There is no  statutory code of  federal                      contract  law,  but  our cases  leave  no                      doubt  that illegal promises  will not be                      enforced  in  cases  controlled   by  the                      federal law.            Id. at 77.   The Court discussed  Kelly v. Kosuga, supra,  at            ___                               _____    ______  _____            length and  found that Kosuga "contemplated  that the defense                                   ______            of illegality would be  entertained in a case such  as this."            Id. at 82.              ___                      We hold  that  under the  facts  of this  case  the            contract  between the  parties  was unenforceable  as to  the            remaining two-year term, during  which time McGowan performed            no  services for Arpin.   As the district  court pointed out,            the ICC broker requirement was enacted to protect  the public            from   fraud  and/or   incompetent  motor   carrier  brokers.            Although  there  is no  indication  that  McGowan was  either            fraudulent or  incompetent, his failure to  obtain a broker's            license cannot be ignored or forgiven.  There is no point  in            speculating why McGowan did not obtain a license.  The record            evinces  that he had worked in the field of transportation of                                         -8-            household goods for many years.  It can, therefore, be fairly            inferred  that McGowan  knew  of the  ICC broker's  licensing            requirement.   There was also  record evidence from  which it            could  be found that McGowan, in answer to a direct question,            stated he had  an ICC broker's license.   This was  a knowing            misrepresentation, even  though it  was not made  directly to            Arpin.  Viewing  the facts  in light of  the applicable  case            law,  we find  that  it would  subvert the  public-protection            policy  of  the  statute to  enforce  the  unexpired  and not            performed term of the contract.                                   Broker or Agent                                   Broker or Agent                                   _______________                      The district court held  that McGowan was a broker,            not a household goods agent,  and as such had to  be licensed            by the  ICC.  Appellants argue that this was error.  We agree            with the  district court.  The starting  point is 49 U.S.C.              10921 which provides:                      Requirement  for certificate,  permit, or                      Requirement  for certificate,  permit, or                      license                      license                      Except as provided  in this subchapter or                      another   law,   a  person   may  provide                      transportation or service subject  to the                      jurisdiction  of the  Interstate Commerce                      Commission under subchapter  II, III,  or                      IV  of chapter 105 of  this title or be a                      broker for transportation subject  to the                      jurisdiction  of   the  Commission  under                      subchapter  II of  that chapter,  only if                      the   person    holds   the   appropriate                      certificate,  permit,  or license  issued                      under  this  subchapter  authorizing  the                      transportation or service.            A broker is defined as a person,                                         -9-                      other than a motor carrier or employee or                      _________________________________________                      agent  of a  motor  carrier,  that  as  a                      ___________________________                      principal  or  agent  sells,  offers  for                      sale, negotiates for, or holds itself out                      by   solicitation,    advertisement,   or                      otherwise   as   selling,  providing   or                      arranging  for,  transportation by  motor                      carrier for compensation.            49  U.S.C.    10102(1)  (emphasis  added).   The  distinction            between  agent and broker,  inherent in the  statute, is made            explicit in the regulations:                      Broker   means   a   person    who,   for                      compensation,  arranges,   or  offers  to                      arrange,  the transportation  of property                      by  an authorized  motor carrier.   Motor                      carriers, or persons who are employees or                      bona fide  agents  of carriers,  are  not                      brokers  within  the   meaning  of   this                      section    when    they    arrange    the                      transportation  of  shipments which  they                      are  authorized  to  transport and  which                      they  have  accepted  and  legally  bound                      themselves to transport.                      Bona fide agents are persons who are part                      of the  normal  organization of  a  motor                      carrier  and  perform  duties  under  the                      carrier's   directions   pursuant  to   a                      preexisting agreement  which provides for                      a continuing relationship, precluding the                      exercise of discretion on the part of the                      agent in allocating  traffic between  the                      carrier and others.            49 C.F.R.   1045.2 (a) and (b) (1991).                      The  evidence establishes  beyond  much doubt  that            McGowan was a  broker and not an agent.   The first paragraph            of the contract states:                      1.  SERVICES PROVIDED                      1.  SERVICES PROVIDED                      A.   The Sales  Corporation shall be                           _______________________________                           a non-exclusive sales agent for                           _______________________________                                         -10-                           the company during the  term of                           ___________                           this  agreement.   Both parties                           understand  and agree  that the                                                       ___                           Sales    Corporation    is   an                           _______________________________                           independent   contractor  which                           ________________________                           provides  for  the Company  the                           sales  service  of  generating,                           soliciting,   and   maintaining                           customers   and  accounts   and                           consulting  with  the  officers                           and employees of the Company to                           expand  the moving  traffic and                           storage   business   for    the                           Company.  (Emphasis added.)                      Although the  language carefully eschews the use of            the word "broker,"  a "non-exclusive sales agent"  who is "an            independent contractor"  can only be  a broker as  defined in            the  regulations.    McGowan  was  not  part  of  the  normal            organization of Arpin, nor was he an employee.  His role  was            to  arrange  for  "the   transportation  of  property  by  an            authorized motor  carrier"  Arpin.   Viewing the  language of            the  contract in the  light of the  regulatory definitions of            broker and agents, McGowan was a broker.                      The trial  record also confirms the  district court            finding that McGowan acted as  a broker.  In addition  to its            contract with  Arpin, McGowan had contracts  with three other            moving companies:  Richard Coriell & Company, its subsidiary,            Central Moving  Systems, Inc., and Pan-American.   During his            testimony, McGowan reaffirmed the following statement made at            his deposition.                      I said I don't  care what concessions you                      get  remember one  thing  these  are  the                      accounts.    These  accounts are  covered                                         -11-                      under contract of McGowan Associates.  If                      I  don't like  Paul Arpin's  service then                      those  accounts aren't going  to be going                      on their trucks.            The  district  court  was  clearly  correct  in  ruling  that            McGowan was  a broker under  the ICC statute  and regulations            and, as such, was required to be licensed by the ICC.3                                      Miscellany                                      Miscellany                                      __________                      McGowan  argues  that the  district court  erred by            basing its decision on testimony not in evidence and refusing            to admit the entire deposition transcript of Michael McGowan.            McGowan quotes the following  statement in the district court            opinion for his claim that the opinion was based on testimony            not in evidence:                      McGowan    exercised     discretion    in                      allocating  business  between  the  three                      haulers that he represented.  Although at                      trial McGowan adamantly denied having any                      such  control  or influence,  McGowan had                      previously boasted that if he didn't like                      the  service  that  Arpin was  providing,                      that  he wouldn't send accounts to Arpin.                      He also had  bragged that moves  would be                      booked  through Arpin only  if he allowed                      them to be.                                            ____________________            3  McGowan has devoted over 18  pages of his brief to arguing            that in  1980 Congress  exempted household goods  agents from            regulation by the ICC and that McGowan did not need a license            because he was a household goods agent.  McGowan may be right            about what Congress did in 1980, but since we have found that            McGowan  was  a  broker,  not  an   agent,  the  argument  is            pointless.              We also reject without discussion McGowan's contention that            Arpin should be estopped from avoiding the contract.                                         -12-            It is  true that the  last sentence from  the excerpt  has no            evidentiary  foundation.  This,  however, was harmless error.            As already  discussed, there was  sufficient evidence without            the "bragging" referenceto establish thatMcGowan was abroker.                      We do  not think that  the district court  erred in            refusing to admit McGowan's  entire deposition into evidence.            The record shows the following colloquy between the attorneys            and  the  court prior  to and  following  its exclusion.   In            reading the excerpt,  it is  important to keep  in mind  that            Galli  represented  Arpin  and  that  McGowan's  attorney was            Gorham.                        MR.  GALLI:   Your  Honor, rather  than                      going through a lot more questions I have                      sections of Mr. McGowan's  deposition I'd                      like to offer into evidence under Rule 32                      as an exhibit.                        THE COURT:  Are they marked?                        MR. GALLI:  They are marked, your Honor.                        What I've done is  I've taken each of the                      pages    and   I    haven't   obliterated                      everything, I've  just put a  yellow mark                      down the  lines that I  would offer  into                      evidence on each page.   There's a yellow                      mark  on the left showing that lines that                      I'd ask to offer into evidence.                        THE COURT:  Are there any objections?                        MR. N. GORHAM:  I'd just like to know                      what the deposition transcripts are being                      offered for?                        THE COURT:  As evidence.                        MR. N. GORHAM:  I have no objection.                       I  don't  see the  relevancy of  it, your                      Honor.                        THE COURT:  The relevance of what?  It's                      evidence.  It's treated  just the same as                      the witness's  oral testimony.   How many                      pages have I got to read?                        MR. GALLI:  Your Honor, there are 20,                                         -13-                      25 pages but some of them have only three                      or four lines.                        THE COURT:  Hand it up.                        (DEPOSITION  TRANSCRIPT  HANDED  UP  TO                      COURT)                        MR.  N. GORHAM:   Your  Honor, might  I                      make  a suggestion.  The whole deposition                      should be put in evidence.                        THE COURT:  I am  not going to read the                      whole  deposition.   You're not  going to                      take  my time up with that.  I have a lot                      of other  things to do  tonight which  is                      the only time I get to read these things.                        MR.  B. GORHAM:   Your Honor,  could we                      have a minute to review this?                        THE COURT:  You  should have seen  this                      before.  Did you  give this to them ahead                      of time?                        MR.  GALLI:    I  just  did  this  this                      morning, your Honor.                        THE COURT:  You  don't even give them a                      chance to look at it.                        MR. GALLI:  Well, I'm  sorry.  I did it                      this morning.                        THE COURT:   I kind of  get the feeling                      that it's my fault.                        MR. GALLI:  I'm sorry, your Honor.                        THE  COURT:   You can go  without lunch                      and read it then, okay.  Let's go.   What                      else do you have?                      In  the court's  final remarks,  he told  Gorham to            read  the  marked  portions  of  the  deposition  during  the            luncheon recess.   Implicit in  this admonition was  that the            court would consider admitting any parts that Attorney Gorham            thought  contradicted  the  parts  marked  by  his   opponent            Attorney Galli.  The record is barren of any future reference            to McGowan's  deposition.  Neither the  entire deposition nor            any  portion of it was subsequently offered in evidence.  Nor            was it marked for identification.                      Fed. Rule Civ. Procedure 32(a)(4) provides:                                         -14-                        If only part of a deposition is offered                      in evidence  by a party, an adverse party                      may require the offeror to  introduce any                      other part which ought  in fairness to be                      considered with the part  introduced, and                      any party may introduce any other parts.                                         -15-                      Fed. Rule of Evid. 106 is to the same effect:                      Rule 106.  Remainder of or Related                      Rule 106.  Remainder of or Related                            Writings or Recorded Statements                            Writings or Recorded Statements                        When a writing or recorded statement or                      part thereof is introduced by a party, an                      adverse    party    may    require    the                      introduction  at that  time of  any other                      part  or  any other  writing  or recorded                      statement which  ought in fairness  to be                      considered contemporaneously with it.                      Attorney  Galli offered  marked parts  of McGowan's            deposition in evidence.  The court was ready to receive them.            At  that  point Attorney  Gorham  suggested  that "the  whole            deposition  be put  in  evidence."   The court  rejected this            suggestion;  the judge  then suggested  that Gorham  read the            parts of  the  deposition that  had  been marked  during  the            luncheon recess.   Neither  attorney did anything  further in            regard to the deposition.                      We  do not  think that  a  district court  judge is            obligated to  go through the  entire deposition of  a witness            who  had testified  at the  trial to  determine if  there are            conflicts in  the deposition  testimony or if  the deposition            contradicts the  courtroom testimony  of the witness.   Under            our adversary system,  that is the  work of the lawyers.   It            was not done here and the judge should not be blamed.                                         -16-                      Finally,  McGowan  argues that  the court  erred in            dismissing  his counterclaim for  interference by  Arpin with            his 1987 contract with Richard Coriell & Company.4                      We  affirm for  the reasons  given by  the district            court in ruling from the bench:                        The evidence in the  case is that there                                              was an agreement entered into on December                      23rd  of  1987  by  and  between  McGowan                      Associates    Incorporated,   hereinafter                      referred  to as the  sales corporation, a                      duly  organized  New  Jersey  corporation                      with  a place of  business located  at 20                      Stonehouse Road,  Millington, New Jersey,                      and    Richard   Coriell    and   Company                      Incorporated, a duly organized New Jersey                      corporation, with a place of  business at                      the same address.  The contention is made                      in  connection   with  the  counterclaim,                      among other things, that the Plaintiff in                      this action  intentionally and unlawfully                      interfered     with     a     contractual                      relationship   existing    between   UTS,                      McGowan  and  Coriell.   The  evidence is                      that  the  agreement,  as  indicated,  at                      least insofar as  McGowan's interest  are                      concerned, was between McGowan Associates                      Incorporated and Coriell.   Since McGowan                      Associates  Incorporated does  not appear                      to be a party to this action it seems  to                      me that  under no circumstances  could it                      recover, under no circumstances could Mr.                      McGowan  recover, that the only party who                      could recover for interference  with this                      contract are the parties to the contract,                      and the party to the contract is  McGowan                      Associates  Incorporated  which is  not a                      party to this litigation.                                              ____________________            4 The dismissal of  the other two counts of  the counterclaim            have not been appealed.                                         -17-                      We have examined  the counterclaim  carefully.   It            specifically    names    as    counter-claimants    Universal            Transportation  Services, Inc.  and Michael  J. McGowan.   It            does state that Michael McGowan is doing business as  McGowan            Associates,  Inc.   Individuals, however,  do not  usually do            business  in  the name  of an  incorporated  entity.   As the            district court pointed out,  the contract which was allegedly            interfered with by Arpin was between McGowan Associates, Inc.            and  Coriell;  it  was  not  between  McGowan  d/b/a  McGowan            Associates  and  Coriell.   There  can  be  no question  that            McGowan Associates, Inc. is not a party to this litigation.                        McGowan argues, in effect, that we should disregard            the separate corporate entity and treat him as the real party            in  interest.   We do  not think  that we  should pierce  the            corporate veil at the behest of the individual  who fashioned            it  so as  to  further the  individual's personal  interests.            That would make a nullity of the purpose and use of corporate            structures.  Nor can  we ignore pleadings drawn by  those who            knew or should  have known of  the specific corporate  entity            that  executed the  contract  in  issue.    To  do  so  would            constitute a  judicial amendment  to the pleadings  after the            trial was over.                      The judgement of the district court is affirmed.                      The judgement of the district court is affirmed.                      ________________________________________________                      Costs on appeal awarded to Arpin.                        Costs on appeal awarded to Arpin.                      _________________________________                                         -18-
