STANDARD SCALE & SUPPLY CO. v. REITER, 227 F. 414

KOHLSAAT, Circuit Judge (after stating the facts as above). There is no suggestion in the opinion of this court in the former hearing of this case to the effect that conferences and communications with reference to the amount of business to be done, had previous to the signing of the contract in question, were competent, either to vary the terms of the contract or to show what were the duties of the general manager. The contract contemplated that somebody should attend to the establishing of the side lines. It did not specify which of the parties was to do this.

As this could properly fall within the duties of a manager, if so intended by the parties, evidence to show that they did so intend was admissible; but evidence of a distinct, separate promise to sell a certain amount of goods would be inadmissible, as bringing into the contract a new obligation, and one which Reiter had distinctly refused to have written therein.

It is to be noted that the agreement did not provide that certain side lines and others unmentioned were to be established, but only that “such branch lines as,” and then mentioning certain ones and adding thereafter “etc.” The court stated that he had allowed evidence to go. in showing what were the duties of this man asi general manager, and that they were to organize and establish a branch house; that there was no requirement to attain any particular result, no requirement for profit, for any particular volume of business, for any number of side lines; that he should in good faith exercise reasonable care and diligence and skill to do these things.

The exception was “to the last instruction that there is no provision in the contract requiring him to establish any particular business, or any particular volume of business, and we will ask the court to instruct” that if defendant in error represented that he would obtain representation for these various articles mentioned in the contract, and that the volume would be not less than $200,000 a year, and that the contract was made in reliance on this, and he actually sold less than $15,000, then there was a right of discharge.

The exception and the request must be read together, and they show that plaintiff in error’s theory is that these alleged representations as to every

article mentioned in the contract and as to the amount of business to be done were binding obligations. There was no error in charging that there was no requirement in the sense of specific obligation to establish any specific number of side lines or produce any specific volume of business. The oral testimony was not admitted for this purpose, and’ was not directed, in the former opinion, to be admitted for this purpose, but only for the purpose of showing in a general way the duties of the manager, or perhaps, also, the relative duties of manager and owner.

This being so, there was no obligation to produce $200,000 worth of business, and, of course, the instruction asked for is clearly wrong. We find no error in the judgment of the District Court, and the same is therefore affirmed. • <&wkey; For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes