June 24, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 93-1113 

                         ROBERT KING,

                    Plaintiff, Appellant,

                              v.

      MARTIN FEED MILLS LIMITED, TIM MARTIN, TONY LLOYD,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Rya W. Zobel, U.S. District Judge]
                                                  

                                         

                            Before

                    Breyer, Circuit Judge,
                                         
              Selya and Boudin, Circuit Judges.
                                              

                                         

Carlton J. Dasent on brief for appellant.
                 
Harry C. Mezer, P.C.,  on Memorandum of Law  in Support of  Motion
                    
for Summary Affirmance, for appellee.

                                         

                                         

     Per Curiam.   The plaintiff-appellant, Robert King,  has
               

appealed a judgment in defendants-appellees'  favor, claiming

error in jury instructions  given and not given and  error in

the formulation of special jury questions.  Despite the court

rules,  see, e.g.,  Fed. R.  App. P.  10(b), setting  out the
                 

appellant's  obligation   to  provide   this  court   with  a

sufficient  supporting record, this court's extensive caselaw

in  this  regard, see,  e.g.,  Valedon  Martinez v.  Hospital
                                                             

Presbiteriano, 806 F.2d 1128,  1135 (1st Cir. 1986), and  the
             

obvious necessity  of providing a transcript  to support such

claims of error,  the appellant has not done so.   Indeed, he

has  even  expressly decried  the  necessity  of providing  a

transcript in this case.

     "We have held repeatedly that we will not review a claim

of  error if the appellant has failed to include a transcript

of the pertinent proceedings  in the record on appeal."   Id.
                                                             

(citing our caselaw).  We  are unable meaningfully to  review

appellant's claims  because, as in Valedon  Martinez, "in the
                                                    

absence  of a transcript we simply are unable to evaluate the

adequacy of the district  court's instruction or to determine

whether appellant  interposed a proper  objection."  Id.   So
                                                        

too,  we  are  unable  to  determine  whether  the  appellant

properly raised  and preserved issues as  to instructions not

given  or  to  preferred  formulations of  the  special  jury

questions.   The  appellant's  brief, in  fact, is  strangely

silent as to whether he raised any objections.  "No party may

assign  as error  the  giving  or  the  failure  to  give  an

instruction unless that party objects thereto before the jury

retires to  consider  its  verdict,  stating  distinctly  the

matter objected to and  the grounds of the objection."   Fed.

R. Civ. P.  51.  We  have required  "firm adherence" to  this

rule.  Transnational Corp. v. Rodio &amp; Ursillo, Ltd., 920 F.2d
                                                   

1066, 1069 (1st Cir. 1990).

     On   occasion,  despite  the   absence  of   a  relevant

transcript, we  have considered an appellant's  claims to the

extent  possible on the limited record before us.  See, e.g.,
                                                            

Valedon Martinez v. Hospital Presbiteriano, 806 F.2d at 1135.
                                          

In  this   case,  our  review  finds   appellant's  arguments

deficient and without hint of possible merit.

     Appellant complains that  his breach  of contract  claim

was not heard  by the jury.1   This complaint is  puzzling as

the first special question presented to the jury was:

          Was there  in 1990  an  agreement for  an
          exclusive     distributorship     between
          plaintiff,  Robert  King  and  defendant,
          Martin Feed Mills, Ltd.?

                    

1.  Appellant also complains that the jury was not allowed to
hear  testimony from his  alleged experts on  the question of
damages for breach of  contract.  The clerk's notes  from the
trial indicate that one of these witnesses testified and that
the testimony of  the second  witness was excluded.   In  the
absence   of  a   transcript,  we   can  derive   no  further
enlightening  information.   At  any rate,  the exclusion  of
evidence  on damages in harmless where, as here, the judgment
on liability in defendants' favor must stand.

                             -3-

The jury  answered "No," suggesting that  the jury considered

the issue  of the existence of  a contract and  found that no

contract existed.

     Insofar  as appellant's complaint may be directed toward

the issue of  improper termination, this issue  was not heard

by the  jury because the  district court  directed a  verdict

against  him.     Yet,   appellant's  brief  does   not  even

acknowledge  the  directed verdict,  much  less  set out  the

standard  of review.  On  appeal from a  directed verdict, we

look  at  the evidence  in the  light  most favorable  to the

losing party  and determine  whether a reasonable  jury could

only have  reached the  same conclusion  as the  trial court.

Newharbor  Partners, Inc. v. F.D. Rich Co., 961 F.2d 294, 298
                                          

(1st  Cir. 1992).  A party challenging a directed verdict may

not  rest on  conjecture  or speculation,  but  must rely  on

evidence which consists of "'more than  fragmentary tendrils:

a mere scintilla  of evidence  is not enough  to forestall  a

directed  verdict,' especially  on an  issue as to  which the

burden of proof  belongs to  the appellant."   Id.  (citation
                                                  

omitted).  Appellant cannot  succeed in convincing this court

that the district court  erred in taking this issue  from the

jury without  providing us with the evidence  which he claims

suffices  to  merit  jury  review.    And,  of  course,  that

evidence,  if it  existed,  would, of  necessity, lie  in the

trial transcript.

                             -4-

     Appellant  also  contends  that  it was  error  for  the

district  court judge to have "instructed the jury that there

was a Counterclaim  and she requested that  the jury consider

this Counterclaim against  the plaintiff."   Appellant argues

that the  defendants did  not file  any counterclaim  with or

subsequent to their answer.  This is of no moment.

          When 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 have 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; but  failure so to  amend
          does not affect the  result of the  trial
          of these issues.

Fed.  R.  Civ. P.  15(b).   The  record contains  the court s

scheduling  order of July 14, 1992, and its pretrial order of

November  17, 1992,  in which  the parties   agreed-to issues
                                                             

included:

          Whether  defendant  improperly terminated
          the distributorship  or whether plaintiff
                                                   
          had  before  the   date  of   termination
                                                   
          breached  the agreement by failing to pay
                                                   
          his debts to defendant?
                                

It  is   evident  that  the   defendants'  counterclaim   for

nonpayment  of   debts  was  properly  part   of  this  case.

Moreover,  in  any  event,  the  record  indicates  that  the

district court directed  a verdict for  the appellant on  the

counterclaim.

                             -5-

     In sum, the  defendants' request for summary  affirmance

is well warranted.

     The judgment of the district court is affirmed.  Loc. R.
                                                    

27.1.

     We award double costs to the defendants-appellees.  Fed.
                          

R. App. P. 38.

                             -6-
