Detsch & Co. v. American Products Co.
| Decision Date | 28 January 1946 |
| Docket Number | No. 11033.,11033. |
| Parties | DETSCH & CO. v. AMERICAN PRODUCTS CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Heller, Ehrman, White & McAuliffe, John F. O'Sullivan, and Victor Cappa, all of San Francisco, Cal., for appellant.
Brobeck, Phleger & Harrison, Theodore R. Meyer, and Evan Haynes, all of San Francisco, Cal., for appellee.
Before DENMAN, BONE, and ORR, Circuit Judges.
This is an appeal from a summary judgment dismissing the amended complaint of appellant, a California corporation, seeking damages for breach of a contract creating appellant, the contract's First Party, the agent for the appellee, an Ohio corporation, the Second Party, for the sale of appellee's manufactured products in California, Oregon, Washington, Idaho, Montana, Utah, Nevada, and Colorado.
The principal dispute here concerns the extent of appellee's agreement to cooperate with appellant, as shown by the following provisions of the contract pleaded in the amended complaint:
Concerning the words "Second Party shall cooperate with First Party to further the sales of said products," the amended complaint further alleges that there was a contemporaneous verbal agreement that the manner in which appellee agreed to co-operate "should include the establishment of warehouses in said territory and the placing of large stock therein, should it become necessary to do so in order to sell any portion of the trade in the territory assigned to plaintiff; that said contract further provided that defendant would furnish plaintiff all price lists, advertising matter and samples issued by them." (Emphasis supplied.)
Appellee contends that the doctrine of ejusdem generis applies to the phrase succeeding the word "cooperate" that "towards this end Second Party shall furnish to First Party * * * free of any charge, any and all price lists, advertising matter and samples." Hence, it contends, it must be held that there was to be no other form of cooperation by appellee than furnishing price lists, advertising matter and samples. We do not agree. Common sense tells us that these incidents were only a small part of the cooperation necessary to carrying on the agency of the appellant. Among other obviously necessary forms of cooperation is that of reasonably prompt shipment of goods to customers procured for appellee by appellant. This is not mentioned in the contract, yet appellee's contention would compel us to hold that appellee would not breach its contract if it refused to ship any goods to purchasers procured by appellant.
Appellee next contends that the phrase "warehouse (office extraordinary) sales services" by appellant — that is, warehousing sales services in the office of the appellant in San Francisco, where the samples, etc. would be displayed by appellant — precludes the idea of appellee furnishing warehouse services in any of the many cities in the nine states included in the agency. We do not agree. The difference between the appellant's single warehouse "sales service" at its office in San Francisco and the appellee's warehouses throughout the several states is obvious.
The parties by a contemporaneous verbal understanding or agreement may make certain the content and extent of the broad and undefined word "co-operate" in the written contract. Wachs v. Wachs, 11 Cal.2d 322, 324, 79 P.2d 1085; Crawford v. France, 219 Cal. 439, 444, 27 P.2d 645. We hold that the amended complaint alleges an agreement by appellee to establish...
To continue reading
Request your trial
-
United Oil Co. v. Urban Redevelopment Commission of City of Stamford
...issue as to the ultimate facts. See also Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir.); Detsch & Co. v. American Products Co., 152 F.2d 473, 475 (9th Cir.); Furton v. City of Menasha, 149 F.2d 945, 947 (7th Cir.); Shea v. Second National Bank, 76 U.S.App.D.C. 406, 133 F.2d ......
-
Freeman v. Continental Gin Company
...251 F.2d 920 (8 Cir., 1958); Boro Hall Corp. v. General Motors Corp., 164 F.2d 770, 771-772 (2d Cir., 1947); Detsch & Co. v. American Products Co., 152 F.2d 473 (9 Cir., 1945). But the preliminary question whether an ambiguity exists is not a question of fact and is for the court to decide.......
-
Carter v. Davison
...case but only as to the conclusions to be drawn therefrom. Paul E. Hawkinson Co. v. Dennis, 5 Cir., 166 F.2d 61; Detsch & Co. v. American Products Co., 9 Cir., 152 F.2d 473; Furton v. City of Menasha, 7 Cir., 149 F.2d 945; Shea v. Second Nat. Bank, 76 U.S.App.D.C. 406, 133 F.2d 17, 22. * * ......
-
Pierce v. Ford Motor Co.
...case but only as to the conclusions to be drawn therefrom. Paul E. Hawkinson Co. v. Dennis, 5 Cir., 166 F.2d 61; Detsch & Co. v. American Products Co., 9 Cir., 152 F.2d 473; Furton v. City of Menasha, 7 Cir., 149 F.2d 945; Shea v. Second Nat. Bank, 76 U.S.App.D.C. 406, 133 F.2d 17, 22. As w......