273 F. 348 | D.D.C. | 1921
Fitzsimmons, appellee in No. 3468 and appellant in No. 3469, brought suit in the court below against J. E. Planger, Incorporated, appellant in No. 3468 and appellee in No. 3469; the declaration being in two counts, the first of which was for the recovery of loss of profits and commissions that might have been earned under the contract alleged to have been breached by the corporation, and the second count for expenses and reasonable compensation between the date of the contract and its alleged breach by the corporation. The court withdrew from the consideration of the jury the first count, but permitted a recovery on the second count.
The contract is in writing and in substance provides, as stated in the brief for Fitzsimmons, “for the employment of the plaintiff” as agent of the corporation to sell to the Russian government or others artificial limbs manufactured by the corporation; compensation being dependent upon the securing of a contract or loan from the government of Russia or orders from any source “in the Russian empire.” The contract does not specify the time during which it shall continue.
In this contract it is provided that the agent must devote his entire time to the interests of the manufacturer, under its direction “or its authorized representative in Russia.” It appears that prior to the signing of this contract the corporation telegraphed Fitzsimmons, delaying “final conclusion on account absence from city for a few days of the party who would be expected to make the trip to Russia in the event the deal [contract] is closed.” The party mentioned in this telegram was a Mr. Thomas, who was present when the contract was entered into. Over the objection and exception of the corporation, there was introduced in evidence correspondence following the signing of the contract, which dearly showed that the understanding of the parties as to the meaning of the contract was that Thomas should accom
Finding no merit in the contentions of the corporation as to the second count of the declaration, it results that the action of the trial court with respect to it must be accepted.
The judgment in each case will be affirmed;, costs to'be divided equally between the parties.
Affirmed.
Note. — Mr. Chief Justice SMYTH dissents as to No. 3468, and concurs in No. 3469.