289 F. 1001 | 2d Cir. | 1923
(after stating the facts as above). The “British claim,” as pleaded, is for a commission. Plaintiffs asserted themselves to have been the procuring cause of defendant’s getting large orders from the government of Great Britain. We shall assume that either in the complaint or by amendment at trial the cause of action was properly set forth as a demand for the compensation of a broker. It is enough to say that we entirely agree with the lower court that no evidence was given sufficient to take the case to the jury. Of the other claims it is to. be noted that both rest in terms on the tentative agreement above set forth. As to the “miscellaneous claim” there was complete lack of proof and the matter need not be pursued further.
The “French claim” is not for a commission, and at trial plaintiffs’ counsel most positively asserted (we presume as his interpretation of the pleadings) that they were not claiming any commission on sales made in France. It must be plain that the tentative contract is inconsistent with any claim for commission. The exclusive right conferred on plaintiffs by that agreement was that they themselves should buy goods to sell again within their allotted territory. Doubtless this ■ exclusive right could be violated, and plaintiffs could receive substantial damage by defendant invading plaintiffs’ allotted territory. But the complaint does not indicate how such damage was to be admeasured, nor does the evidence furnish any information on the subject. The pleadings were drawn and the case tried apparently on the theory that, if defendant made any sales in or to France,_ a certain fixed proportion of such sales immediately accrued to plaintiffs. This is
On this writ complaint is made that the court prevented illumination of the foregoing matters by excluding conversations between plaintiffs and the officer of defendant who signed the tentative agreement, had at and immediately before the time the contract sued on was made. We have already noted that there is nothing ambiguous or doubtful about this agreement. As to its legal effect we are not required to speak at present, as we perceive no error in the ruling of the court below. The parties put their agreement into writing. It makes no difference whether it was tentative or not; it was the only agreement they had, and it must be taken to be the embodiment of the whole of that agreement. The matter is very well put in Coca, etc., Co. v. Coca Cola Co. (D. C.) 269 Fed. 796, 804; and in this court exactly the same effort was made and denied in Shoninger v. Dormer, 241 Fed. 662, 154 C. C. A. 420, and in Ohio, etc., Works v. Oneida, 271 Fed. 57.
Plaintiffs in error also feel aggrieved because one of the plaintiffs, shortly before action begun, called at defendant’s American headquarters and there had talk with an employee who during the war had been defendant’s agent or representative in London, and an offer to put this conversation before the jury was denied'. It is said that this testimony would have tended to show admissions by defendant as to the “practical construction of the agreement” above referred to. That is merely a variant of the effort just quoted to construe, if not to vary, language that the parties chose or agreed to—language which, in our opinion, needs no construction, other than plain reading by a plain person.
Finally, it is asserted for error that the court below, toward the close of this lengthened trial, refused either to withdraw a juror or to permit further amendment of the complaint. These were matters too plainly within the discretion of the court to require citation.
Judgment affirmed, with costs.