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We are not convinced. We remind appellant that under our standard of review, we do not sit as a juror, evaluating credibility and weighing evidence, as he seems to ask us to do. Rather, we simply weigh whether the district court committed a clear abuse of its discretion in determining that the jury verdict was not against the clear weight of the evidence. Newell Puerto Rico , 20 F.3d at 22; Kearns , 863 F.2d at 179. Our review of the record reveals that Ahern's counsel presented testimony questioning, to varying degrees, nine of the thirteen items of the estimate Scholz' accounting expert made of how much Ahern owed Scholz. Phillip Ames ("Ames"), a certified public accountant who served as business manager for both Ahern and BOSTON from 1976 through sometime in 1981 or 1982, made several estimates of how much Ahern owed Scholz, which he labelled "ball park figures." While we note that Ames' final estimate was $277,000, for a total of $459,000 with interest, we cannot assume that the jury accepted this figure as gospel. Given that Ahern sought over a million dollars in principal and interest from Scholz, the jury may reasonably have found that the Ames figure was not a substantial breach in the particular context of this case. It may have determined that the amount of money Ahern owed, taken in the perspective of the contract, Ahern's obligations, and the total amounts of money concerned, was not so significant a breach as to violate "an essential and inducing feature of the contract." Lease-it , 600 N.E.2d at 602. Finally, addressing the case law Scholz relies on for support, we note that here, unlike in those cases, the amount of money owed was in question.
Ultimately, examining the record in full, the evidence clearly provides the jury and trial court with a basis for finding that Ahern did not substantially breach the FMA. As this Circuit stated on another occasion,
We can understand how a jury might have decided for [defendant] on the basis of this evidence. But the jury did not do this; it decided for [plaintiff]. We do not see how one could say that the jury clearly made a mistake. We do not see how one could say that the evidence overwhelmingly favored the [defendant]. Rather, the evidence simply was mixed and contradictory.
Vda. de Pérez , 910 F.2d at 1008. Therefore we cannot say that the district court committed a clear breach of its discretion on this point.
C. Did Scholz Breach the FMA?
Ahern claimed below that Scholz breached his obligation under section 5.2.1 of the FMA to pay Ahern his share of the royalties due from the third album. [4]
With respect to the future commercial release of any albums embodying the musical performance of the group "Boston" . . . , Ahern shall be entitled to receive eighteen percent (18%) of gross royalties after deduction and payment of only (i) a producer's royalty to Scholz (computed according to the terms and provisions of the agreement between CBS and Ahern Associates, as amended, at a basic rate of six percent (6%) of the wholesale royalty base price) and (ii) all commercially reasonable recording expenses, including Tom Scholz' recording services (i.e. commercially reasonable engineering and other recording services), or recording expenses incurred by CBS or such other company and deducted from royalties payable . . . .
Because McKenzie was entitled to a percentage of the royalties, Ahern's actual rate was 12 percent. The evidence presented at trial centered on a document entitled "Artist Royalty Statement" ("the Scholz Statement"), which Scholz presented to Ahern. [5]
Total Gross Royalties Reported by MCA Records $6,604,048.14
Gross Royalties - Audit Settlement 170,000.00
Less Producer Share (2,257,862.05)
Gross Artist Royalties 4,516,186.09
less MCA Costs Deducted 508.566.22
less MCA Costs - Audit Settlement (210,000.00)
less Artist Costs (Schedule 1) 4,360,447.00
Net Artist Royalties (142,827.13)
Of this final "Net Artist Royalties" figure, Ahern's percentage share was 12 percent, so that his share of the royalties was minus $17,139.26. "Artist Costs" included charges for 11,971 hours of studio time in Scholz' studio at $125 an hour; engineering and equipment for the studio, at a total of $60 an hour; and $1.7 million in legal fees to Engel's law firm for the CBS litigation and negotiation of the agreement with MCA.
That statement listed over $6 million in gross royalties reported by MCA prior to December 31, 1993, but reduced that figure by deducting, among other things, a producer share and artist costs, so that the net artist royalties fell to below zero -- and Ahern was not entitled to any money. Scholz argued at trial that he did not breach the FMA, but the jury and the trial court disagreed.
On appeal, Scholz contends that their finding is against the weight of the evidence, because Ahern's prior material breaches excused Scholz' performance under the Further Modification Agreement. Scholz points out that paragraph 2 of the FMA states that
Scholz wishes to guarantee that Ahern shall receive at a minimum certain amounts of monies in connection with future recordings embodying the performances of the group "BOSTON" . . . . in exchange for the agreement of Ahern as set forth herein.
Scholz shapes his argument on appeal as follows: Since Ahern's only agreement of substance was his agreement to account for and pay royalties to Scholz for prior BOSTON albums, Ahern's breach of his commitment excused Scholz' performance. Indeed, Scholz notes, the parties' mutual commitments to account to and pay each other are expressly stated to be in consideration of each other. In such "bilateral contracts for an agreed exchange of performances, even though the promises are in form absolute, the law regards them as constructively conditioned in order to avoid an unjust result." Industrial Mercantile Fac. Co. v. Daisy Sportswear , 288 N.Y.S.2d 209, 211 (N.Y. Civ. Ct. 1967), order aff'd , 289 N.Y.S.2d 332 (N.Y. Sup. Ct. 1968); see Restatement (Second) of Contracts, § 237 cmt. a (1979). Moreover, Scholz continues, the non-occurrence of a condition of a party's duty excuses the non-breaching party's obligation to perform even though that party does not know of its non-occurrence, id. , § 237 cmt. c, and the intention or scienter of a breaching party are not considered in the elements of breach of contract. See Agron v. The Trustees of Columbia Univ. , 1993 WL 118495 (S.D.N.Y., April 12, 1993).
Considering this, Scholz points out that his first royalty statement regarding the third album was rendered by MCA on April 1, 1987. Thus the earliest he could have owed money to Ahern under the FMA was August 15, 1987 -- and by that date, he argues, Ahern had already failed to account to Scholz or pay him royalties with respect to the first two albums for over five years. Therefore, Scholz maintains he was excused, at least until Ahern tendered payment, from rendering an accounting or paying royalties to Ahern from the third album. At the very least, Scholz argues, he could have withheld payment of the $459,000 admittedly owed him as a set-off against any amount he owed Ahern. See Record Club of America v. United Artists Records, Inc. , 80 B.R. 271, 276 (S.D.N.Y. 1987), vacated on other grounds , 890 F.2d 1264 (1989).
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