296 F. 904 | 2d Cir. | 1924
(after stating the facts as above). 1. We think it is too plain for argument that plaintiff was to devote his time and energy to the sale of balers and other goods manufactured and sold by defendant. To that end he was to take sales orders and use order blanks furnished by defendants; all orders were to be taken subject to acceptance at the home office of defendant and all accounts and collections were to be handled by the home office. Instead of this, there seems to be no question that plaintiff traded, among other things, in secondhand balers, which had already been sold by defendant, directly or indirectly to consumers, and plaintiff did not send order blanks to the home office of defendant, and so handled the situation that defendant did not collect any accounts, but, on the contrary,, the testimony would have justified the jury in concluding that plaintiff was conducting a business independent of defendant.
It is apparent that defendant entered into agency agreements with plaintiff and accorded to him valuable selling territory for the purposes of increasing its sale of newly manufactured goods and not for the purpose of permitting plaintiff, as its agent, to deal in secondhand goods of its own manufacture, which naturally might decrease its sales or output of original goods. The duty of plaintiff under the contract was clear, and, if he violated that duty, he was, of course, not entitled to recover. Trice v. Comstock, 121 Fed. 620, 57 C. C. A. 646, 61 L. R. A. 176; Commonwealth Finance Corp. v. McHarg (C. C. A.) 282 Fed. 563; Reis & Co. v. Volck, 151 App. Div. 613, 136 N. Y. Supp. 367.
The court -should have charged the jury that taking secondhand Economy balers in exchange for new Economy balers in part payment for them, or dealing in secondhand Economy balers manufactured by defendant, constituted* a violation of the contract between the parties, and then should have left to the jury the question as to whether or not defendant, because of its knowledge and conduct, had subsequent to the making of the contracts agreed to or acquiesced in or waived such violation of the contracts. In the circumstances disclosed by this record, the error in construing the contracts contrary to what we have indicated was prejudicial. '
2. If as a result of our decision the case should be tried again, it is necessary to refer to but one ruling of the court. Shulman was Cohen’s manager. Brown, a witness, was called and asked whether he eVer had a talk with Shulman on the subject of the profit in secondhand machines. The conversation was excluded. He was* also asked whether he had a talk with Shulman on the subject of the relative profits in dealing in secondhand machines and commissions on the sale of new machines and what the profits were in the secondhand business. The court ruled that defendant could show any admissions of Shulman and others similarly situated, made as to the fact as to whether or not there was a sale of secondhand balers, but that the witness
Judgment reversed.
