Electrical Research Products, Inc. v. Gross

GARRECHT, Circuit Judge

(dissenting).

The major issue in dispute here is to determine what service appellant agreed to furnish as included in the word “periodical” as used in the paragraph of the contracts, reading as follows: “4. * * * Products [appellant] also agrees to make periodical inspection and minor adjustments in the Equipment after it shall have been installed.

Appellant’s General Service Manager testified that at the time the contract was entered into appellant had a standard form of contract and that the one here in suit was one of those standard contracts; that the provision relating to service was identical in all the contracts; also, that in 1929 and 1930 the appellant furnished a regular system of service in the States, for which it charged $29.75 per week. On cross-examination appellant’s Vice-President gave the details of this system. He testified:. “* * * In the beginning for the first six months of operation in 1929 and 1930 we serviced once a week for the first six months; when I say a week it might have been eight days one time and six another, but approximately every ten days; the second six months and thereafter, approximately every two weeks with the exception of very large de luxe houses, with a seating capacity of upward of 1,500 seats of which there were about 150 in the United States, which were serviced every week; plaintiff also furnished a service man day or night on call whenever the theatre was running; thé operator had nothing to do if anything was wrong except to call the office and get a service man right away.”

*111The contracts were entered into on March 28, 1929. At that time appellant was informed of the services usually-rendered under contracts such as this. Moreover, the letter from appellant to appellee from the New York office, dated November 23, 1928, makes it clear that the appellant agreed to furnish the same service for appellee’s theaters in Alaska that it was furnishing in the States; that the only difference might be that for this service the charge might be higher in Alaska, but the service was to be the same. On this point the letter recites:

“* * * In order to come to a mutual understanding I feel that you should be advised that certain expenses over and above those included in the domestic prices mentioned in the contract that you have already signed will be billed to you separately.
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“3. A weekly service charge somewhat in excess of the one in the States. We will not be able to determine the exact amount of this charge until our engineer can study the local situation. Our desire is to give you service equal to that given to the theaters in this country and at all times to keep this charge at a minimum.”

Appellant thus proved that at the time the contract was entered into the phrase “make periodical inspection” had a definite, well-known meaning to the trade, which, in addition, was being particularly elucidated by the contracting parties.

Appellant now seeks to contradict these writings and to vary the terms of the written contract by introducing in evidence the depositions of two of its agents to the effect that prior to the signing of the contract there was still a different understanding arrived at in an alleged telephone conversation, admittedly occurring before the documents were signed and which is not embodied therein.

That it was the purpose of appellant, by means of these depositions, to change the ordinary accepted meaning of the *112written contract by reference to an alleged conversation is apparent from a reading of the rejected deposition of Nathan Levinson; in it, among other things, he said: “* * * I told Mr. Gross, as I remember it, that at no time did I like the idea of Mr. Gage having sold him on the idea of installing sound equipment in his theaters, because of the almost impossible situation of furnishing proper service. * * *” Evidently, appellant came to realize that it would be difficult to furnish the “proper service” it had agreed to, and was anxious to be relieved from its obligation.

Further, Levinson goes on to say that he discussed this situation with appellee at some length on the telephone and that he further stated specifically “that in any emergency an engineer would be sent by airplane from Seattle, provided the planes could get through, and provided Mr. Gross would stand the expense involved in such emergency calls.” This would be an additional parol amendment to the contract.

The District Court held that the offer of these depositions was an attempt to vary the written agreement by parol evidence which was not only contrary to law but at variance with its very terms, as appears from the following paragraph:

“Entire understanding.
“20. The parties hereto expressly stipulate that this agreement as herein set forth contains the entire understanding of the respective parties with reference to the subject matter hereof, and that there is no other understanding, agreement or representation, express or implied, in any way limiting, extending, defining or otherwise relating to the provisions hereof or any of the matters to which the present agreement relates. No agent or employee of [Electrical Research Products, Inc.] is authorized to alter or modify this agreement in any way unless such alteration or modification shall be approved in writing by the President or a Vice President of [Electrical Re*113search Products, Inc.] or by such representative as may from time to time be designated in writing by either of such officers. No waiver by either party, whether express or implied, of any of the provisions of this agreement shall be construed as constituting a waiver of any other provision or provisions of this agreement or as estopping either party from its right to enforce any provision or all provisions hereof.”

The excluded depositions are vague and indefinite, particularly as to the date on which the alleged conversation referred to occurred. It was said to have taken place some time in the summer or fall of 1928, which, in any event, was prior to the execution of the contract, and under the law all matters theretofore agreed to should have been reduced to writing and embodied in the contract. This applies also to the further alleged agreement that appellee in case of emergency would be required to pay expenses of transporting an engineer by plane from Seattle. Moreover, the purport of any such verbal understanding as alleged in the depositions is contradicted by the letter written from the New York office by appellant’s manager, of date November 23, 1928, already referred to.

Further, appellant insists that the original contracts were amended by supplemental contracts of September 4, 1929. Appellee contends these were exacted under duress, which seems to have been the view of the jury. But however that may be, it is significant that these amended contracts fixed the schedule charge for service and inspection at $29.75 per week, exactly the same as the testimony shows was the charge in the States.

In my opinion there was no error in excluding this evidence contained in the depositions or in the giving of the instruction condemned in the majority opinion.

This case already has been tried twice in the District Court; two juries have decided in favor of appellee. It has been heard in this court twice. Litigation should never be protracted where, with due regard to the rights of par*114ties, it can possibly be avoided. “Interest reipublicae nt sit finis litium” is a maxim so old that its origin is hidden in remote antiquity.

The judgment of the District Court should be affirmed.