*3 by selections the actual were made someone Lettvin, Mullin, Segal & Epton, Norman undisputed responsi- else. It is that Diaz’s 111., Druth, Chicago, plaintiff-appellant. for bilities did include solicitation of orders. Beck, 111., Chicago, for defend- Philip S. employment agreement A formal be- ant-appellee. signed tween Diaz and was not CUDAHY, PELL, and backdated, Before WOOD July, until 1973. It was how- Judges. ever, Circuit working the date began Diaz company. pre- The which was PELL, Judge. Circuit by attorney Indian re- pared Head's by concerns Diaz diversity case, expressed during Albert flected plaintiff, In this negotiation period, Diaz, Diaz’s title from the district court’s appeals J. recited and duties as It also out- on described above. dismissal of claim for commissions lined, paragraph three, em- the terms rele- completed after termination of his sales compensation to Diaz’s appeal on vant included ployment. principal The issues salary Paragraph properly in- commission. three judge are whether the below provided judicata and also the doctrine of res voked subject to revision the em- at the close correctly interpreted whether he year. parties as fiscal ployment contract between the barring Diaz’s claim. Paragraph provided four the contract that, days party, ninety by either notice
I. FACTS put part-time consulting Diaz could be on a months com- began employment eighteen “for a negotiating Diaz an basis (Indian Head, mencing upon Inc. the termination of Em- with Indian employment a full-time basis.” Head) ployee’s late Diaz then January, consulting were to be Register Corpo- part-time duties employed National Cash $1,000 per month (NCR). compensated contem- at a rate of ration Head was Indian arrangement. initiated the if Diaz micropub- acquisition of NCR’s plating Head, 1,900 during Catalogue acquired titles NCR Indian Diaz selected 1972-3 from 1. The 1,183 year employment with Brookhaven the 160 of his In contrast one included titles. Press, competitor. Indian Head’s Diaz his tenure with titles added A few Paragraph agreement provid- days conversation, five of the after this resigned position engage indirectly Head, with Indian ed that Diaz should not ef- May 10, 1974, fective accepted an offer directly competitive business with employment from Northern Engraving during the time he was Microcard Editions Company (Northern). employee or consultant to either a full-time Indian Head. Diaz received his monthly last commission statement from Indian Head on or about Despite fact June began Head then signed July, was not until paying the per consulting month fee March, began receiving commissions in provided paragraph for in five of the con- 1973. These commissions were based on tract. Diaz never cashed these consulting Catalogue made from the 1972-3 sales fee checks. included commissions on orders booked *4 August, 1974, In Diaz commenced suit in acquired Microcard Editions before it was federal district eighteen- court to have the by Indian Head. Diaz’s month noncompetition clause in the con usually on the net calculated basis of deliv- (Diaz tract declared I). unenforceable In ered and invoiced sales. Orders received order, reported its F.Supp. (N.D. 402 111 yet shipped generally but not were not in- Ill.1975), the district court held that cluded. clause was pre unenforceable insofar as it 1974, January, In Diaz received cluded Diaz’s competing with Indian Head $50,- a commission statement that included once his full-time employment with that completed 000 for sales not as of the end of company terminated. The judge district previous November. The month Diaz had also held that Diaz was not obligated to expressed some dissatisfaction with his em- perform any consulting services for Indian and, ployment arrangement in early Janu- Head. Diaz was ordered to return all the ary, had received an offer of consulting fee checks to Indian Head. competitor from a of Indian Head’s. Indian Indian appealed Head this order. Diaz Head characterized the commission cross-appealed ground on the that he should “goodwill gesture” as a indicative of the have been timely afforded notice and an company’s desire for Diaz to remain in its opportunity present to regarding evidence return of the September 2, checks. On 1975, this court Judge affirmed Decker’s 1974, January, Later in Diaz was told unpublished order in an order. stayed he with beyond if 1,1974, he probably put December would be 6, 1976, April On present Diaz filed the salary plus compensa- on a bonus scheme of (Diaz II), lawsuit seeking additional com- longer paid tion no pensation and would be on a for commissionable items selected Diaz, 1974, February, commission basis. Diaz the sale of which was consummat- ed after inquired termination of his employment about commission rate for the with Indian Head. The year. 1974 fiscal He was told that the rate commission claim falls categories. into two Diaz claims According would be lowered. to Indian $5,363.63 based on prior sales booked Head, made, to change pursuant this to 10, May 1974 but thereafter. He power reserved in the because also claims commissions on sales made from contemplated significant Head Indian in- catalogues 1973-4 and 1975 that were generated by crease in sales salesmen. The booked after he left Indian Head. Includ- definition of “net sales” in Diaz’s contract commissions, ing these latter Diaz claims a provide did not for salesmen’s commissions $105,186.59. total of to be deducted before commission was calculated. Had Diaz’s commission rate re- Appearing Flaum, Judge before Indian constant, might he well mained have re- May, Head moved to dismiss Diaz’s suit in company 1976, grounds ceived what viewed as an un- on the the action warranted windfall. res employ- barred and that the 562 in his earlier suit. The nation commissions its face demonstrated on ment issue, to additional is whether claim now not entitled Diaz was judge trial denied factual raised arises out of “same basic
compensation. 1976, December, finding that situation,” Na- Himel v. Continental Illinois motion separate and distinct Co., 205, on a was “based II tional Bank and Trust 596 F.2d to though it even (citation omitted), cause of action (7th 1979) relate[d] as did Cir. I],” and involved in the same [Diaz properly Diaz I have been raised and could upon claim had stated a that Diaz Accord, Gasbarra, suit. in the earlier “ granted.2 be relief could (the ‘the entire F. at 121 test is whether 2d due arises amount claimed to be Head moved to August, Indian ” out of one and the same act or contract.’ interest, party as the real join Northern (quoting Ernest Freeman & Co. v. Robert would be entitled arguing that Northern Co., Regan Ill.App. G. from Indian any recovery Diaz obtained (1947)). 517-18 N.E.2d this motion. Judge Flaum denied Head. Perry for reassigned Judge arguments against poses
Diaz II was three March, judicata. First, The trial was held trial. of res applicability plaintiff’s of the Indian At the close Judge rulings Flaum’s earlier claims that Rule pursuant dismissal moved for Head to Diaz II that Diaz I was not a bar consti- 41(b) Federal Rules of Proce- Civil case should not have tute the law the orally renewed its motion to dis- dure and Second, by Judge Perry. been disturbed ground judicata. res on the miss *5 urges that he have appellant could not regarding not renew its motion Head did post-termination brought his claim for com- Northern. missions the time of Diaz I at because Indi- ' liability impossible an Head’s was to calcu- 18, 1981, September Judge Perry dis- On late until after the trial of the first case He held Diaz’s action on merits. missed Third, concluded. Diaz contends that judicata by was barred res that the suit only presented issue in Diaz I was the valid- interest in the action that Diaz had no and, ity noncompetition clause4 would be the sole benefi- because Northern therefore, ciary any judgment against the issues raised the second Perry em- Judge Head.3 also held that the suit were not and could not have been liti- unambiguous ployment gated earlier. We will address each of any claim for commissions on sales barred these contentions in turn. departure after Diaz’s from Indi-
completed Judge rulings judi Flaum’s that res an Head. interlocutory cata does not bar Diaz II were and could and reviewed at be “reconsidered II. JUDICATA RES prior judgment.” time to final Pitt judicata “not The doctrine of res extends States, Corp. ston-Luzerne v. 86 United only actually matters to those determined 460, (citation F.Supp. (M.D.Pa.1949) prior proper- but also to matters in the omitted). As Professor Moore has ob ly which could have been raised in involved served: prior suit.” Gasbarra v. Park-Ohio In- Inc., by cannot its law of dustries, (7th Since a lower court 655 F.2d Cir. concedes, higher having appel- court 1981). appellee Diaz did the case bind a As the it, jurisdiction only over sensible litigate present post-termi- claim for late relating cross-appeal Judge 4. Diaz maintains that his denied a renewed motion 2. Flaum also consulting July arguing fee checks was to the return of the the same bases for dismissal and, only procedural grounds premised as a 1979. result, moneys Diaz I involved no claim for pursuant the contract. We do not owed urge Indian Head does not affirmance on this point; dispute find it we do not this and, ground we do not discuss it judi- dispositive res the doctrine of of whether disposition further in our of this case. applicable. cata is atory injunctive ... to do thing for a lower federal court relief or a deter- inviting is to set itself instead of liability mination of which would have above, reversal when convinced its been res in suits for future in- substantially erroneous. law of case stallments. 0.404[1], Practice IB Moore’s Federal H Id. at 123. (1982) (footnotes omitted). We think Further, the amount of commissions Diaz analysis applicable Professor Moore’s asserts he was due on completed sales dur- the situation in which one federal district ing fiscal 1974 was following determinable judge ruling believes of another district year close of that fiscal on November erroneous, judge Judge to be Perry did in 30,1974. Even if no final sales information Judge case. We do not think that was available until January, Perry foreclosed law of the case suggests, as Diaz hearing at which holding from that Diaz II was barred res Judge Decker ordered Diaz to return the judicata. consulting fee checks did not occur until Similarly, persuaded we are not March impossible it was for Diaz to raise the in
stant claim at the time of Diaz I because
arguing
present
that the
allegedly owing
the amount
was not then
claim did not arise out of the same factual
Gasbarra,
certain. Like the
I,
situation as
appellant
relies on
liability
Diaz confuses the issues of
and Himel v. Continental Illinois National Bank
damages.
[T]he ed as to plaintiffs whether the in fringe for the the second clearly benefits had ac- crued suit had known ripe and was for decision or should have known in [at time of the first question alleged .... The 1961 of the earlier misconduct. Id. suit] by. could have been resolved either declar- at 210. provides support sound for our conclusion in distinguishable.from the II is
Himel Judge Perry properly I the instant case that focused on the trust present Himel suit. judicata a bar the court reformed found res to Diaz’s suit. and instrument itself further the testa the investment clause recognize, judi- We that the res providing of the max expressed intent tor’s cata in is a issue this case close one. We II, In Himel how possible. imum income ground therefore turn to an alternative re- ever, intent nor inter the testator’s neither upon by judge lied below: instrument pretation the trust was at relationship parties contractual between the contrast, Diaz I Diaz II By both issue. precludes Diaz’s claim. interpretation requiring involved issues further, parties; the contract between III. CONTRACTUAL RELATIONSHIP pertain post- to the the issues in both cases points preliminary Two must be relationship between First, by made. virtue of the contract be Gasbarra, any claim Indian Head. As parties, tween the law of New York post-termination might that Diaz have governs interpretation of the employment of which he should— commissions was one Second, agreement. recognize that be certainly been aware in could—have cause Indian Head drafted the employment fully 1974 and which had accrued at that agreement, ambiguities therein must be time. against construed Indian Head. Bank of Carolina, Bank, North N. A. v. Rock Island Although litigate did not (7th 1978). 570 F.2d Cir. This question post-termination relevant, however, canon of construction suit, apparently first on the advice only to the extent that contractual counsel, lan why there reason he could is no guage ambiguous. Further, itself Contrary appellant’s have be done so. significant cause Diaz had a amount suggestion argument purely that the of in at oral put sought into the final declaratory preclud in Diaz I the canon has relief commissions, a somewhat less relevance to this ed claim for such this court case than it recognized involving does to one previously has that: form contract which signed negotiation without between the equity have been law and unit- [W]here parties. present litigant ed and a can all his relief, grounds legal equi- whether judge The made findings below numerous inconsistent, table, hypo- alternative or why as to the contract barred Diaz’s claim. thetical, single in a cause of action he findings points urged relevant should have but one be held to cause of appellee fall logically into the following judgment action on the and final merits categories: (1) Diaz was not the “procuring matters, legal is res to all cause,” Khoury Brothers, Inc., Richer v. equitable, support and/or or defense of (7th 1965), F.2d Cir. of the sales for *7 that cause of action. commissions; (2) he claims the lan- Conrad, 1183, 1185(7th guage 536 F.2d Lambert v. the clearly contract bars the claim; 1976) (quoting (3) IB Cir. Moore’s Federal the extent of the executive Practice, 0.410, supra, 1156-57); at position see duties precludes involved in Diaz’s H also, claim; 10.405[7], plaintiff id. 764-65. The the (4) practical and the construction argued given in Lambert that res parties had the the evidences inapplicable was he sought only post-termination because no intent pay to Diaz com- injunctive relief in his first suit Although whereas he missions.5 there is some interre- damages lationship claimed in his second suit. This between these four categories, rejection argument court’s of Lambert’s shall discuss each turn. I, supra, relationship
5. As noted in Section
time
claims
with Indian
falling
categories:
apparent
into two
those
Head.
It is
that if Diaz’s claim to
shipped
falling
category
related to sales booked but not
as of
within
commissions
fails,
the first
10, 1974,
May
relating
falling
and those
to sales both
his claim to commissions
within
similarly
category
booked
after he severed
the
his full-
second
cannot succeed.
fully negotiated sale,
the
Procuring
A.
Cause
court stated
salesperson accomplished
that “the
pur-
“procuring
that he was the
Diaz claims
pose
agency during
of her
the term of her
all sales made
cause” of
employment,
procured
she
buyer, ready,
a
during
years
fiscal
1974 and
willing
perform
and able to
according to the
resulting commis-
therefore entitled to the
offer,
salesperson
terms of the
and the
holding in
sions. He relies on this court’s
procuring
cause of the eventual sale.”
Brothers, Inc.,
Plaintiff as the cause of the the term “procuring it recog- also sales, parties plaintiff under the nized that the “salesperson” was a ... is entitled to commissions notwith- and so characterized her repeatedly in its standing opinion. the sales were convinced, fact We are subsequent made or consummated that a New York court would necessarily plaintiff’s apply termination of the services. the procuring cause doctrine to one And, subject in view of the nature of the whose duties involved no direct sales effort. Richer, procuring matter here involved —the Even whose employment duties catalogue listings pro- analogous continuation of were more to those of Diaz than Bendevena’s, duce future sales the were was in a sense a “sales- catalogue is to serve and be current— man” in else, that he had to induce someone entirely it companies, makes reasonable the mail order carry descriptions express photographs absence of an cut-off limitation employer’s of his merchan- contrast, By on a commission basis de- dise. Diaz was involved in no pendent job on such future sales include com- direct solicitation. require His did not occurring persuasion missions on such sales subse- party third to act for the quent to termination of the salesman’s or benefit of Indian signifi- Head. It is also representative’s contract. cant that both Richer and per- Bendevena entirety formed the of the duties for which governed by Id. at 38. The Richer case was they they claimed commissions while Illinois law whereas the contract between respective Diaz, defendants’ is, terms, Diaz and Indian Head its own hand, compiled 1,183 on the other governed by New York law. titles contained in the catalogues while he asserts, however, that New York employed by NCR, adding only 160 recognized law also procuring has cause during his tenure with Indian Head. Diaz doctrine in Bendevena v. Richard Fuchs essentially asserting against claim Indi- Estate, Inc., Real 89 Misc.2d 391 N.Y. an performed Head work he while an (1976). S.2d employee so, doing NCR. he over- agent. was a real estate claimed two She looks the fact that Indian Head obtained fully commissions: one for a sale that was *8 1,183 part purchase list of titles as of its negotiated prior departure to her from the of Microcard Editions from NCR. employ, and one received relating property broker summary, to sale of a we are not convinced placed Multiple Listing she had with a Ser that Richer is consistent with New York working vice while she was for the defend law. Even if Richer and Bendevena were other, ant broker. The court found that Bendeve found to be consistent with each however, na was As distinguishable. entitled to both commissions. to Diaz’s claim is information, this ductory language provides those than less sales-related His duties Bendevena; further, pay Head is to indicating that Indian or Richer of either “[djuring period he claims commissions he is activity for the commission before he entered largely completed basis” and employed ... on a full-time relationship with the employment an into not “in default” of the contract. distinctions, light of these defendant. aspects the contract reinforce Other of that Diaz was not to think are inclined right Diaz’s to commis- conclusion that our for which of the sales “procuring cause” employment premised sion is on a full-time neces- It is not commissions. he now claims Paragraph relationship with Indian Head. question disposition on this our sary to rest right Head the gave three also characterization, Rich- because adjust eliminate—Diaz’s —or holding to the limited its specifically er year, fiscal so following the end of the 1973 provided no the contract in which situation long compensation did not as Diaz’s total limitation,” 341 F.2d at “express cut-off fact, level.6 In Ted Lee fall below a stated commissions. option and had had decided to exercise early Diaz in If Diaz so informed Language of Contract B. The all the commissions were to be awarded Paragraph three of seeks, he receive commissions for would Head Diaz and Indian agreement between the rate years fiscal 1974 and 1975 at both introductory portion of that is critical. The year fiscal 1973. The set in his contract for paragraph states: result that Diaz received far more would be employed by he is Indi- During period by quitting job than he in commissions basis, Indian Head on a full-time an Head have received had he remained in would long as as he shall not pay Employee, will Indian Head’s hereunder, following be in default compensation: Two other sections of contract also suggest that Diaz is not entitled to commis- added). 3(a) Subparagraph re- (emphasis sions on orders booked after he left Indian 3(b), Subparagraph salary. lates to paragraph Another section of three claim, Head. states: which Diaz bases compensation states that Diaz’s would (1) compensation, a sales As additional death; (2) (1) upon thirty days cease: monthly payable as earned at commission suspended after Indian Head him for $1,150,000 the first the rate of l8/4%of certain enumerated causes. This section each of Indian Head’s fiscal net sales in immediately portion follows the of the con- (as years Items here of Commissionable tract which defines defined) “commissionable after and a sales commission of items”; $1,150,000 in excess of we read the reference to 5% of the net sales year embracing “compensation” salary in each fiscal of Commissionable both Paragraph Items. four commissions. deline- post-employment rights obliga- ates the 3(b) Subparagraph cannot be read without parties. tions of the It makes no reference introductory language reference to to commissions. Each of these sections of Attempting ignores quoted to do so above. the contract is consistent with the introduc- paragraph. More im? the structure of the three, tory language paragraph quoted alone, 3(b), portantly, subparagraph read supra, right which limits Diaz’s to commis- pay the com- gives no indication who due, employ- sions to the of his full-time missions, they are or for what to whom they payable. are The intro- ment Indian Head. period of time suggests Lee had no and commissions will be We do not made].” 6. Diaz in his brief that anything provi- reevaluate his com- believe that in this contractual under the contract reconsidering early Lee’s rate in 1974 because the contract sion is inconsistent with mission something contemplated immedi- scheme over a stated that: “it is year. ately following the 1973 fiscal end of Indian Head’s 1973 month after the close of regarding salary year, reappraisal fiscal [such
567
clearly
(1949),
language of the contract
did specifically
The
N.Y.S.2d 704
refer to
date,
shipping
the
as
right
suggesting
that
the
predicates
to commissions
point
right
at which the
This
to commissions
employee.
a full-time
being
his
Bearing
ambigui-
vested.
in mind that any
of Diaz’s
entitled
dispositive
claim that he is
ty in the contract must be
in
construed
commis-
total
approximately
to
person claiming
favor of the
the commis-
after he
on orders that were booked
sions
sions,
v.
per
Grattan
Societa
Azzioni Cotoni-
bear
left
Head because these orders
Indian
Cantoni,
861,
2
ficio
Misc.2d
151 N.Y.S.2d
relationship to Diaz’s
a “full-
no
status as
875,
(Sup.Ct.1956),
884
the
conclude that
employee.”
time
the
language
employment agreement
of
be-
language
the
Whether
contractual
tween Diaz and Indian Head
suffi-
is not
concludes Diaz’s claim commis
similarly
to
ciently specific as to when Diaz’s interest in
booked
tenure at
sions on orders
vested.
language
commissions
The
shipped
depends
but
thereafter
pre-
does not clearly
right
on whether
commissions
to
claim
clude Diaz’s
to commissions on sales
booking
time of
the time
vested at
or at
10,
May
booked
1974 but
before
that,
shipping.
provides
New York law
of
thereafter.
contrary,
clear
absent a
right
to such
at the
commissions vests
C. The Extent of Diaz’s Executive Duties
booking.
per
time of
Grattan v. Societa
judge found,
alia,
district
The
inter
Cantoni,
861,
Azzioni
2 Misc.2d
Cotonificio
that
the executive
duties undertaken
875,
(Sup.Ct.1956).
151
884
N.Y.S.2d
his claim post-termination
barred
to
argues
that he is entitled to the
New
recognizes
commissions.
York law
commissions because his contract with Indi
employees
that some
paid
are
“substantially
an Head is worded
the same”
part
package
of a total
and
Noening
as the contract at issue in
v. Bed
performance
consideration for
of duties
Mills, Inc.,
618,
ford
239 N.Y.
to the Microcard
acquired
When Indian Head
Micro-
employment with Indian Head whereas
NCR,
card Editions from
there were out
1,900
year of
selected
titles
one
standing
undisputed
It is
that Diaz
orders.
with
Press.
employment
Brookhaven
commissions, pursuant
received
to his em
for
suggests that Diaz’s claim
Sommer
ployment agreement,
these
calculated on
post-employment commissions is barred be-
claims, however,
orders. Diaz
earned,
large
cause his commission was
Ortega
distinguisha
cases are
Sommer
through
duties that
part,
performance of
ble because in
those
em
both
cases other
day
necessarily ended the
he abandoned
ployees
companies
of the defendant
had
employment relationship with In-
full-time
responsible
initially booking
been
for
rely
court
dian Head. The Sommer
did
contrast,
By
orders.
Indian Head had no
the nature
the duties
solely,
instead,
“previous”
picker;
title
it was Diaz
plaintiff
in that case.
performed by the
compiled
himself who had
the title list from
practical
The court also looked to the
con- which the orders were booked. As noted
given
by
parties.
struction
the contract
III(A),
previously
supra,
in Section
practical
A similar examination of
con-
employed
overlooks
fact that he was not
given the instant
fur-
struction
compiled
Indian Head at the time he
thers
that the
rule
our conclusion
Sommer
majority
perti
of the titles offered in the
applicable
this case.
is
catalogues.
nent
extremely
narrow
reading
Ortega
unjusti
of Sommer and
is
D. Practical Construction of the Contract
fied. Those
examining
courts were
ascertaining
right
practical
given
when
Sommer’s
construction
a contract
vested,
Supreme
parties.
the New
York
Both courts held that when an
significant
it
employee
Court found
that the
receives commissions on
orders
paid
place,
strong
commissions under his contract on did not himself
it is a
indica
company prior
right
orders obtained
to the
tion that the
to commissions vests at
shipped
commencement of his
the time the
order
rather than
placed.
were filled after he entered the defendant’s when it is
We think that this anal
Relying
ysis
applicable
The construction the Diaz- by Indian contract parties Head indi- I do not believe that Diaz’s suit is barred right cates that Diaz’s by principles judicata. to commissions vest- of res In addition to and, shipment ed at the time determining of whether the claim in the in- stant pertaining properly contract bars his claim suit “could have been raised suit,” 562, in the earlier shipped May orders booked but not ante at I of believe the court must also ascertain whether the presented
claim here is such that one would normally expect litigant joined to have it IV. CONCLUSION presented with the claims prior in the suit. judicata The doctrine of res bars Diaz’s Wright, 18 Cooper, Cf. Miller & Federal suit because claims raised in both his Practice and Procedure at § 49-54 pertain first suit and the instant action to (1981) (analyzing concept judicata res post-employment relationship with Indi- merger principles under the governing the require interpreta- an Head. All the claims mandatory joinder claims). Diaz’s dam- employment agreement tion of the between age claim pass does not this test. could, should, parties. Diaz have agree I with majority that Diaz’s presses been of the claim he aware now employment contract give does not him the brought the time he his first suit. right to commissions on sales booked after Assuming, arguendo, that res is Diaz employment. terminated his But I inapplicable, present claim is barred would award Diaz commissions on sales employment agreement with the de- booked before he terminated his employ- fendant. His claim for commission on or- ment even though shipments did not following ders booked the termination of occur until after he left Indian Head. The employment relationship his full-time with is, majority concludes, as the also Indian Head is inconsistent with the clear ambiguous point. on this But bearing in language paragraph employ- three of the principle mind the recognized by major- agreement. ment ity “that because Indian Head drafted the employment agreement ex- employment agreement, any is not so ambiguities plicit as to whether Diaz’s to commis- therein must against be construed 564; booking ship- Head,” sions vested at the time of ante at see ante at I ping practice parties, interpret paragraph orders. The of the three of the contract to give indicate that Diaz’s interest does commissions earned on all booked only “[djuring in commissions vested when the orders sales em- [was] paid ployed Moreover, he was commis- at Indian because Head.” this interpretation be- supported sions Indian Head orders booked of the contract is. acquired payment Edi- fore the defendant Microcard of commissions in advance shipment (but practical booking) January tions. This construction of after parties’ together rely with the extent I would not on Indian Head’s duties, managerial brings explanation practice, namely the case of Diaz’s squarely adopted approach gratui- within the rule of this at bar Sommer Co., App.Div. tously placate give weight Diaz. I would v. Edward Ermold (1949), thereby barring practice contemporaneous as a con- N.Y.S.2d Hence, post-termination all commissions. struction of the contract. I would claim for damages for the amount of award earned, upon sales based Head’s time he left Indian at the
booked extent, respectfully dissent. I
To *12 NEUBAUER, al., et Plain- E.
Charlotte Cross-Appellants,
tiffs-Appellees,
v. CORP., FIBERGLAS
OWENS-CORNING Defendants-Appellants, al.,
et
Cross-Appellees,
v. CORP., al., et CORNING
PITTSBURGH Defendants-Appellants, Party Third
Cross-Appellees. and 81-1939 to 81-8033
Nos. 81-8021
to 81-1951. Appeals, Court of
United States Circuit.
Seventh
Argued Feb. 1982. Aug. 1982.
Decided Aug.
As Amended
Rehearing Sept. Denied Milwaukee, Wis., Goldberg,
Albert J. for plaintiffs-appellees, cross-appellants. Carlson, Milwaukee, Wis., Donald H. defendants-appellants, cross-appellees.