concurring.
With respect to the testimony of the 21 owners as to their understanding of the meaning of the Major League Agreement, I read Judge Sprecher’s opinion as holding that testimony admissible on the issue of notice, not on the issue of their intent at the time of contract formation. The un-communicated intent of a party to a contract is not admissible on the issue of the meaning of the contract. (See, in addition to the Union Bank case cited by Judge Fairchild, Judge Learned Hand’s statement in Hotchkiss v. National City Bank, 200 F. 287, 293-294 (S.D.N.Y.1911), aff’d 201 F. 664 (2d Cir. 1911).) Here, however, appellant argues that the Commissioner’s action was an “abrupt departure from well established assignment practice and his retroactive application of the change of policy to disapprove appellant’s assignments was made without reasonable notice and was therefore procedurally unfair”; and that “the reasonable expectations of a member of a private association may not be denied by a retroactive ruling lacking reasonable notice.” It is to be remembered that
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 401, Fed.R.Evid. The understanding of the other owners over a period of many years concerning the Commissioner’s • authority tended to make less probable the alleged facts on which appellant based the argument of lack of reasonable notice, viz., the existence of the asserted “well established assignment practice” that was changed contrary to appellant’s “reasonable expectations.” There was other, more pro*547bative evidence, including actual exercises of authority inconsistent with the asserted practice and conduct of appellant’s president indicating an opinion consistent with that of the 21 other owners, that made the challenged evidence cumulative but not inadmissible unless the judge exercised his discretion under Rule 403, Fed.R.Evid., to exclude it.
Because the evidence was admissible on the notice issue, error could lie only in considering it on the interpretation issue, on which it was not admissible. Any such error was harmless, because neither the district judge’s interpretation of the agreement nor ours depends upon the challenged evidence.