*1 charged, specific contention fense in our case failed that the indictment allege of Robinson. words to so did not the indictment is true that literal Robinson use the words charge peti- case, does but it fraudulently knowingly “did and import

tioner contrary into the to law quantity derivative

United States preparation opium 174.” 21. U.S.C.

violation magic

There is no words allege guilty knowl in Robinson to

used

edge. wording of this indictment charges guilty sufficiently

clearly and

knowledge element as an essential judgment trial court

offense. The affirmed. OIL OF

STANDARD COMPANY CALI- FORNIA, Appellant,

Clyde PERKINS, Appellee. A.

Nos. 19352. Appeals

United States Court of

Ninth Circuit.

June 1965.

Rehearing Sept. Denied *2 Kirkham, Mac-

Francis R. Richard J. Laury, Haven, Pillsbury, Thomas E. Francisco, Cal., Sutro, *3 Madison & San Wayne Clarke, Hilliard, Koer- James H. Dezendorf, ner, Young, & MeColloch Or., Portland, appellant. Roger ap- Tilbury, Portland, Or., for pellee. POPE, KOELSCH and

Before Judges. DUNIWAY, Circuit Judge. KOELSCH. Circuit Company In Oil Standard consignment entered into a California Perkins, Clyde A. Lee G. contract with and Distribut Powell and the Harris Oil ing Companies.1 permitted The contract consignees petro to sell Standard’s products leum on a “non-exclusive basis” Washington designated areas of Oregon. were “outlined Those areas print Exhibit indicated marked B, and “made attached” the contract part” B consists thereof. Exhibit clearly maps, two include both which Yakima, Washington part as area consignees territory could which products. distribute Standard executed In 1956 a new contract was superseded” the which “terminated and operating After under contract. years, agreement the 1956 for two Per- his kins terminated his relations with co-consignees In 1959 he and Standard. Superior then an action in the commenced Washington against Court State seeking Standard, for breach predicated on contract. The action was provide Perkins refusal products for in the with distribution Yakima area. Alleging diversity citizenship be sought parties,

tween the of the action to Federal obtained removal District then moved to Court.2 Standard companies ultimately 1. These inter transferred succeeded to the The case was Dorothy Harris, original party est of for the Dis- States District Court United agreement. Oregon, pursuant trict of provisions to the venue 1404(a). § of 28 U.S.C. ground action, lacking. on the substance, dismiss the it is Standard’s (a Washington resident) Powell indispensable view that Powell is an Companies indispensable party; were Harris that his interests are “adverse” parties. Perkins, alignment requiring Perkins then amended his com- his aas plaint join defendant; proper alignment Powell and the Harris and that Companies defendants, they destroy diversity among after par- as re- would join parties plain- arguments him fused pre- ties. These same were tiff. court, sented to the district which re- aligned parties upon an examination Standard then moved to dismiss the of their “real and true interests.” Per- ground diversity juris- action on the California, kins v. Oil Co. lost, diction was since Perkins (D.C.Or.1961). 29 F.R.D. 16 Washington. Powell were both citizens *4 realigned thereupon The district court Nothing us before demonstrates Companies Powell and the Harris as asserting Powell was in interest parties plaintiff diversity preserve ju- to claim; posi- nor find do we that Powell’s risdiction, and the motion to denied dis- tion was to “adverse” that of Perkins miss, 29 The F.R.D. cause 16. was then required in the sense that him to be jury, tried to a which rendered a sub- party say made a defendant. To stantial in verdict favor of Perkins. agree Powell did not with Perkins that brought, an action have judgment should been Standard moved for say occupied notwithstanding position not to that he the verdict and for a having of a trial; defendant an immediate new after these motions were judgment stake in the suit. We believe the denied district was entered Stand realignment support appealed. court’s finds in ard these Thereafter Standard filed cases. v. a See Poole West Point Butter motion in the district court for relief judgment 60(b).3 Ass’n, pursuant (C.C.Neb. from to Rule and Cheese 30 F. 513 request court, At the of the district 1887) we Appeal Dismissed, 140 U.S. permit remanded the to case that court 600; 35 L.Ed. Cf. Federal S.Ct. to consider the latter motion. Thereaft Mining Smelting Co. v. Bunker Hill er, hearing a was held in the district (D.C. Co., & Sullivan M. & C. 187 F. 474 court motion relief was de Ida.1909); Henley v. Life Ins. Protective appeal nied. Standard then filed an from Co., F.Supp. (D.C.Miss.1951). ruling. the latter This court ordered appeals consolidated, purpose both for the II. briefing, argument and determinat ion.4 pause only briefly to We need deal with contention Standard’s that the I. jury determining erred in that the Yaki reject part We Standard’s threshold ma area as was included diversity jurisdiction territory marketing contention that was to Perkins allotted upon grounds pellee urges, “appellant’s Reply 3. The motion was based Brief newly evidence, replete discovered fraud and mis- with misstatements fact ” representation offering in of Perkins are other There less drastic namely, three consist- exhibits and far more suitable measures available evidence— ing assignments protect litigants party from Perkins Oil to courts a Company gain advantage to Perkins. was Standard’s seeks to an unconscionable through attempt contention in- that Perkins caused these a deliberate to mislead. prepared should, perhaps, struments be and executed We hasten to add that commenced, appellant’s after the trial had in an at- brief does warrant tempt remedy standing criticism, anything his lack of nor it reflect but does by proper attempt maintain the suit. counsel to aid engage If in court. we were inclined Appellee’s appeal motion to dismiss the a discussion of briefs in this mat- ter, many might is denied. Such an extreme measure of our remarks well be justified hardly if, ap- by appellee. would be even brief filed devoted long period it, particularly co-consignees. when the The rule is limitation and his provided by very contract short. undue invasion of it is “an settled that appel- emphasis deal jury’s for an It bears we here function historic weigh conflicting evidence, prepared contract so-called “adhesion” late court to by judge credibility such con of witnesses Standard.5 Provisions opposite accord with from tracts should construed in at a conclusion arrive understanding jury.” Lavender attached to them one reached Cf. 652-653, laymen Kurn, think 66 S.Ct. unversed the law. We 327 U.S. here, particu 740, 744, L.Ed. 916 And intended this that had Standard part operate map appended provision lar as a condition to and convincing physical precedent suit, manifest was it could have the contract leaving jury by language could ra- intention evidence from which ed such tionally implication Yakima did conclude that area far less to than this. territory indeed a allotted to Moreover, Merrill has as Professor consignees. neither re- stated in his text: quired apparently to nor it believe did majority of decided “The vast Yakima assertion that pleadings filed cases accord to the part had included as area been litigation equivalence consignees’ territory by mistake. upon formal service of notification opposite party. This is true III. *5 only perform- of for the not demands raised, procedural are Two issues duty law ance of owed where and which, proper of resolution Standard silent, of that are but also contract contends, operate Nei- to bar this action. class of cases which numerous ther, estimation, compelling in our has prescribed notifi- statute or contract merit. by plaintiff cation the defend- first, argues In the Per- Standard he is to maintain suit. The ant if comply kins’ failure to contractual a reasoning of common sense give provision requiring him to Stand- sep- judges in these cases that any pre- of ard notice of claim breach thing up- arate notification is a vain provides cludes his action. The contract ought to insist on which not the law by any “In the event of breach Standard prescribing and contracts any provision agreement, con- this general terms are notification signee give notice shall Standard written not commands limitation but such breach and Standard shall ” * ** on information 2 Merrill comply days have five within which to pp. (1952). 189-190 Notice 763 at § provisions with the breached. If said short, pro- to accord the contractual not within said five- breach is corrected by vision the effect contended for Stand- day consignee may, option, period, at its by the ard would be neither warranted agreement giving by terminate express language by the contract nor days’ 25 notice thereof in writ- policy. sound considerations of ing.” agreement con in the is So it is likewise with the Nowhere agreement express preced notice tention that the 1956 which made condition agree superseded” imply ent to suit. And court “terminated and a will plaintiff’s is a unless it ment sued on would thus divest covenant condition may clearly appears parties intended of action. Parties of course so cause construing handy reality in them. 5. “Adhesion contract” is a shorthand modated that Kessler, Adhesion, descriptive printed of standard form con- Contracts of See by prepared party (1943). sub- The term one L.Rev. 629 tracts Columbia introduced Patterson, other on a “take it or leave of Adhesion” was mitted to the “Contract recognized legal by 'The has there into nomenclature it” basis. law equality Policy, bargaining Delivery of a Life Insurance is often true 198, (1919). power in and has aceom- such contracts 33 Harv.L.Rev. contractually extinguish prior ply measuring profits vested rights. they so, person supplanting how- plaintiff. If, have done Whether how- ever, question ever, agency non-exclusive, of intent. See Grider Stand- Turnbow, going ap- 162 Or. 94 P.2d ard contends the rule business (1939). plies vigor 290-291 in full all evidence damage specu- is excluded because of its of the view that We are Although lative nature. Perkins would rights con when are created not rigid dispute application rule, of this itself, its incident of tract but vest as an particularly where, as he contends the language explicit breach, it takes more warrants, situation here alternative general expression than a of intent showing damages means of with reason- supersede the terms of terminate certainty exist, say able it seems fair to 5A earlier them. See contract to divest premise that Perkins concedes Standard’s Corbin, pp. 538- Contracts 1236 at § agency but maintains his was in ex- fact simplest (1964). Reduced to its clusive, thereby bringing him within the contrary terms, rule for contended exception going business rule. provision would make a to “terminate Secondly Standard first denies the fact. supersede” implied And an release. parol it contends that rule general implied premised release operates to bar evidence of the fact. equivocal language and will should not lightly in inferred. We are not agen toAs whether the Perkins clined to what sanction could become cy exclusive, jury’s was in fact deter “traps unwary,” particularly mination that it was must be sustained when, here, contract an adhesion supported by Al substantial evidence. generally, Am.Jur., involved. Re See though the record shows that Perkins lease 26§ recognized that the strict letter permitted supply contract IV. jobbers territory, other in the it also question The crucial in the case vigorously objected shows that Perkins *6 interworking the so-called involves when Standard did so. This tends to “going damages business” rule of with testimony corroborate Per the Allen parol the effect of the evidence rule. regard meaning kins with the to limited points plaintiff out that Standard unless attached Standard to the contract lan operated going business there can be guage. He testified that: damage no his valid evidence of because “Mr. Johnson defined to us the reasonably speculative loss is too and not meaning of word the ‘non-exclusive’ Mueller, certain. See Buck 221 Or. v. in this manner. He said that ‘It is 271, (1960); 351 P.2d 66-67 Putnam policy only Standard’s to have one Lower, (9th v. 236 F.2d 571-572 Cir. jobber territory. in a And for all acknowledges 1956). that purposes, you would be the exclu- exception rule, there is an to where this jobber.’ However, put sive if we plaintiff given has been an exclusive word ‘exclusive’ in in- the contract agency territory within a and the defend might non-exclusive, stead of it be agreement by per ant has breached the construed that could not mitting products another to sell within territory.6 event, sell a Chevron station or a small sta- same that dam ages reasonably regular are ascertainable sim- tion or of their custom- Oregon said, prescribing exceptions apply 6. The court has in clear that none of its “ * * * “going rule, plaintiff may it business” is Otherwise a in fact suf- disallowing deprived not a damages reason for sufficient fer but will be of re- they difficulty claimed that cannot be ex- dress because of their actly Mueller, supra, proof. quoted language calculated.” Buck v. As may clear, support P.2d at A fair inference cases cited in of it make going plainly Oregon. policy thus be drawn that business that is not the applied rule should be is unless signee products is authorized to sell reason that And that was the ers. on a basis. This non-exclusive word meant non-exclusive. hereunder * ” ** always question explanation they’ve The then is whether was given word, we confined to courts are the four corners us that because ascertaining jealously exclu- in wanted instrument to be the ambiguity they jobbers. or We existence of whether sive distributors — surrounding bring may explore other want them to ten facts and didn’t circumstances, including compete people in And customs in with us. brought trade, subject parties’ up probably to determine intent. this was answer, many see, though heard as we shall is founded times. we Even underlying ap- story policy day before, to be on the modern we wanted they repeated plications the rule. contin- sure that what it ued know meant.” Although it is often said corroborated, testimony This was also unambiguous face instrument on its Johnson, measure, by former in a A. P. permits evidence, dic of no extrinsic department. jobber head preclude case ta in at least one would asked When whether it was Standard’s here, such evidence on the facts we be single single policy jobber to “have a in lieve is an overstatement of area, exceptions” responded with rare he Applied literally, principle as rule. good “It for us to business proscribe all stated would evidence keep segregated pos- as we them as much ambiguity. er latent The source of the sibly long could.” And a time Standard principle ror the manner is lies in employee, president who had been a vice principle is stated. For when the above charge marketing, E. McClana- J. parol rendered converse— han, testified that: “We them wanted ambiguous explain admissible able handle their business without writing writing dehors the —evidence competing jobber another we permitted ambiguity show a latent supplying. So, generally, try were we McCormick, the error cured. Evi See give them a field and them work let practical mat dence As a § interfering jobber there without another ter, way, cases stated either the rule in operations.” did, with their He how- involving ambiguity latent makes say ever, exceptions there were to this Oregon law, application. difference policy, but indicated there were relative- per here, clearly applicability conceded ly overlap few instances where there was mits am extrinsic evidence where latent jobbers (about 17-20). between six out Doherty biguity is demonstrated. See implica- But it never more than an Mills, P.2d *7 Harris Pine Or. 315 tion, jury presumed and one which the 566, (1957). also, 574 See Close-Smith considered, to have that Perkins was (D.C. Conley, 411, F.Supp. v. 230 418 exception. such an Or.1964). A careful statement of governs principle con that this case is remains, however, to determine Kenney tained in v. Feliz Los Investment parol operates whether the rule evidence Co., Ltd., 378, 225, Cal-App. 121 9 P.2d to exclude the evidence recited above. (1932) 229 where the court declared: strenuously contends that Perkins, strenuously, does. no less con- that, settled “It is a rule when the tends that it does not claims to language employed fairly sus- virtually every fall excep- within known ceptible either one of two con- parol tion to the evidence rule. structions contended for without doing to its ordi- violence usual and agree- consignment Examination nary import, ambiguity ambiguity ment arises reveals no facial war- ranting evidence, may resort to extrinsic for where extrinsic re- evidence be paragraph clearly provides: 3 purpose explain- for “Con- sorted to (9th Rudd-Melikian, Merritt, 924, 1960). Inc. v. 282 F.2d 927 Cir. 386

ing parties the intention of what found and the evidence indicated. ^[*] ^[*] *» short, the real issue here, one against Standard, be must resolved Walsh, Quoted approval in with Walsh is not much so what a inter- ritualistic (1941). 62, 439, P.2d 65 18 Cal.2d 116 pretation language might of the contract underlying the Considerations indicate, parties what but intended fully parol evidence rule are consistent their contract to mean. our evidence view extrinsic V. dis is admissible the circumstances Wigmore parol closed. tells us that objection Standard, Over from genesis in re evidence rule its had District Court admitted as evidence bear- permit early day judges to ing luctance damages: on the issue of jurors rely testimony illiterate on oral (1) Co., True in- Sales Oil writing variance of the con at with the dependent jobber Accordingly, itself. rule of ab tract selling territory, the Yakima subject solute exclusion control of under the brand name “Rain- Wig- court, 9 See formulated. ; bow” more, (1940). p. 188 Evidence 2461 at § (2) margins Profit established developed, apparent As the law it became operations Perkins’ in other certainty always absolute could not Washington areas of and Ore- seemingly found in clear lan be even gon, competi- to demonstrate his guage, consequence rigid over capacity. tive parol application of the rule evidence sup often to defeat the intentions of Several considerations parties. growing Therefore, port number decision of Court to District extrinsic facts and circumstances were admit the evidence. borne “[I]t be “open damages admitted into ses mind that the mere fact that ambiguity may exactly established. ame” was first not be calculated is suffi long ago 1890, disallowing As Bowen Justice cient reason them.” against ambiguity making Harris, 398, warned facial Cross v. 230 Or. P.2d 370 conditioning admissibility 703,707-708 (1962). a touchstone necessary A corol “ * * * Alliteratively, lary of extrinsic he evidence. is that there is ob single meaning plain jection placing viewed rule before all the as a less “command of than construction” facts and circumstances hav ing tendency aas “counsel In re of caution.” See show Jodrell, 590; Wigmore, probable 44 Ch.D. Evi their amounts so as to enable p. (1940). dence 2462 intelligent at § them to make the most probable estimate that the nature of the Today, application mechanical permit.” Jackson, case will Turner v. single plain meaning re- rule should be Or. P.2d 11 P.2d sisted; paramount should consideration permitting The reason for given pur- be the modern rationale such evidence rests on the fundamental parol pose provide evidence rule to proposition may per that no man meaning stability reasonable profit wrong. mitted to from his own by parties used words in their contracts. *8 impossible “Since defendant made it for wholly Ibid. This is but a variant of and plaintiff any profits, to realize it cannot comports duty with the first of court’s complain probable profits if the are of effectuating parties’ mutual intention. necessity estimated.” National Soda Arbogast Co., See v. Pilot Rock Lumber City Angeles, Co. v. Products of Los 23 579, 331, 329, 215 336 A.L. Or. P.2d 72 (1943). Cal.2d 143 P.2d 17 Pro (1959). R.2d 712 And here it seems clear fessor Corbin consequence states parties’ usage of term “non- well: exclusive” was have the intended to meaning, except “exclusive of cer- Stand- “If the mind the court is jury impliedly profits ard.” That is what would have been tain that contrary by apprised claim, no breach was of this made if there had been greater (g) be a to the mandate of Rule 9 F.R.Civ.P. the defendant there will allowing degree liberality in of clear, however, jury It award jury bring in a verdict for the theory profits, was based on loss a of though plaintiff, even the amount totally incompatible an with award subject scarcely profits prevented is pocket” based on a claim for “out of ex- respect, proof at all. this at penses, disputed such as the one here. least, generally be re- doubts will Moreover, clearly instructed! the court party solved in favor who has of the jury: against certainly injured and been mind, “Bear members of the committing party the breach. jury, you ultimately if determine large The trial amount of court has a plaintiff’s damages, any, and fix if determining discretion in whether you profit theory the lost basis or profits question submit the to the will not nor items consider allow for jury; and when it is so submitted expenses of services or incurred in large jury will have a also going preparation of into the area determining amount of discretion in prior breach of date of the the amount of its verdict.” being defendant, except part chargeable against Corbin, pp. expenses 142- 1022 at actual Contracts § Thus, receipts, you once a future net total foundation shown,8 comparability reasonable was find there would have been.” by True Oil sales made Co. prejudice No could or did befall Stand- margins profit by Perkins in not, therefore, ard. do reach the We operations his at other were admissible question item ex- whether trial court. sound discretion of the pense improperly was to the submitted The effect of differences in circumstanc jury. es, conditioning absolutely rather than VII. admissibility, question properly more contention that is Standard’s jury appropriate addressed to the under party real was interest in this case instructions. And the record shows Company, closely held cor- Perkins Oil carefully ju this court admonished the poration by Perkins, his son and owned rors not to award based on nephew. argues his that Per- Standard speculation, pointed out in some de brought kins the suit as individual purpose tail the for which this evidence assignee not in of the was fact was admitted and how it should be con Company Oil when this action Perkins sidered. however, If, Perkins: commenced. assignee VI. corporation, sued as an may he of course recover on the cor- objects Per also Standard porate claim. expenses in connection kins’ claim for beginning, (a) begin preparation for a move into the To at improperly sharply disputes jury’s Yakima area submitted jury. contends that factual determination that the claim had to the distinguishing guaranty charac- of the because Seventh We believe Amendment, presented the evidence a federal court must be ex- teristics between necessity ceedingly was the set tbe threshold Perkins and what careful operation high.” hypothetical of an room Herman situation too weight Machinery only Schwabe, Inc. him in Yakima went Shoe United 1962). admissibility Corp., (2d evi- F.2d Cir. rather than said, “There As has been well We have reason to believe the Ore- dence. gon bright more limited line that divides evidence courts would take a is no *9 jury, right worthy by jury a of the to a trial on this of consideration view counter-attack, although subject heavy issue. Especially not. from that is evidence 388 assigned prior free, limits, give great suit.9

been to Perkins within or it significance evidence, Rather, consist little might it contends the however it otherwise ing regarded strictly legal testimony experts of of and at from the a testimony point Many regard of Perkins’ of view. this as the variance the genius beyond dispute system. lay witnesses, jury that of the shows assignments were written not (b) Whether Perkins’ failure to signed until after suit was commenced. plead or of otherwise inform Standard very convincing argument one. The is a assignment prior to trial defeat will point of But it comestoo late. “The focal by his action must be answered determin judicial review is the reasonableness ing probably preju if Standard suffered particular or conclusion inference dice because a lack of We do notice. * * * by very jury drawn The perceive any resulted, or could is from essence its to select function resulted, reality, have here. In among conflicting inferences and conclu Corporation, claims Perkins a cor sions rea that which is most considered poration solely Perkins, almost owned sonable free to Courts are not were those of Perkins himself. these reweigh the and set aside circumstances, notice substantive jury jury merely verdict because the sufficient; claim is status could or have drawn inferences different party bringing it is Cf. New immaterial. judges conclusions or because feel Kinney, York C. & R. H. R. Co. 260 v. other results are more reasonable.” Cf. 294 U.S. 43 L.Ed. S.Ct. Corporation, v. Sentilles Inter-Caribbean (1922). 107, 110, 173, 176, U.S. 80 S.Ct. (1959); L.Ed.2d Tennant Peoria VIII. Ry. Co., 29, 35, & P. U. 321 U.S. 64 S.Ct. Particularly 88 L.Ed. is specifies prejudicial as true, disputed this when fact as here a requiring misconduct six new trial subject special is made the of a inter Perkins, in instances where counsel for rogatory. although Thus, gratui jury presence offered cross-examination of Perkins’ witnesses suggested tous observations Stand disputed telling transaction was ard was a Perkins malevolent Goliath and experts and the credentials of Standard’s righteous David. impressive,

were must determination Such conduct is not be condoned might stand. That we have reached a certainly But should not be rewarded. signifi different conclusion is without reversal, to warrant a mis- flavor ; authenticity cance where the is issue sufficiently permeate conduct must controverted and resolution on its turns proceeding provide entire conviction eye the relative trustworthiness between jury by passion that the was influenced witnesses liability re transaction and the reaching prejudice its verdict. jury testimony, of scientific trial, complex protracted In this as sway. testimony, Expert holds full enough was, we cannot attach merely testimony, common with all es significance any of or all the matters certainty. probability, tablishes collectively of them to conclude with great probability certainty. Even is not degree of assurance that the verdict And it remains the exclusive function tainted. jury probabili to assess the relative IX. Moreover, ties and establish the facts. jury view able to the issue Standard next attacks instruction expert testimony given

which given by within on the of mis- court issue context the entire case and take. instruction reads: sitting assignments, provides This issue resolved the basis same companion par- in a from case between these for Standard’s motion for relief authenticity ties, involving judgment appeal. of these *10 “ * * * ponderance in the evidence the case of all You are instructed that mutually though you understood find the evi- it was never even from parties Perkins should between the dence this case that the territorial in Consign- area, map the in- the Yakima and that to have attached the map Agreement, purchase Yakima area the ment and the clusion of the through person agreement included the was inadvertence the sale and territory prepared it, end in then that would Yakima as a which who area your agreed pe- supply plaintiff’s and the to claim for defendant plaintiff products for the defend- for verdict have to be troleum the would * * *” sale, nevertheless, ant distribution and you preponder- find from a further X. ance in the of all the evidence case point final relates to Standard’s mutually that it was not understood against Perkins. their counterclaim parties territory by the said alleged re on Perkins’ failure to is based was not to be but included was in- consigned products pay his or in turn for map cluded on the territorial possession the termination at part result mistake on the aof Examination of the record contract. making person scrivener or or dealing aspect of the re with this case preparing map on behalf of the vagueness uncertainty and sur veals defendant, you then are instructed rounding claim. The issue was sub that such mistake a de- constitutes finding jury, implied mitted and its fense to the claim and under such against fully supported your circumstances in this verdict the evidence. case would have the de- against plaintiff fendant and being error, There reversible ” (We have italicized judgment is affirmed. portion). criticized nega- Judge (concur- DUNIWAY, The error asserted is the double Circuit which, contended, ring). tive it is confus- was ing contradictory jury. and I concur in the decision of the Court judge’s my duty opinion it is and all of brother While in relating adequately clearly Koelsch, except instruct Part VII case, assignments Company on the law of counsel like from Oil Perkins responsibility my opinion, wise shares his it some to Perkins. does not timely objection failure to assert in make to an lie in the mouth of Standard to given instruction, proposed or that Perkins this breach of contract case “ * * * distinctly [point Perkins, Company, Oil is the out] rather than objects party matter to which he real interest. contract grounds By objection,” precludes of his and Perkins. its between Standard assignable party’s appeal point, terms, on that unless without own it was plain assignment prejudicial. error is Rule consent. No by Perkins, F.R.Civ.P. Here counsel for nor would Stand- ever assignment. objection. did not make such an And such ard consent although only the instruction is less than a Standard dealt with Perkins. Con- clarity, prejudice appar- sequently, model of I think immaterial whether is not Moreover, court, concluding assignment valid, purported ent. ought instructions, question its clarified the earlier state- that we to decide that saying you pre- ment “If find from a case.