It is true that, Judge Blatchford in the case of The Hesper was speaking of the power of the Circuit Court. Still in referring to the case of The Connemara, supra, he fully recognized the fact that before the act of 1875 the Supreme Court had power to alter decrees in admiralty brought to it on appeal, and what he said as to the power of the Circuit Court, while perfectly consistent with the cases of The Charles Morgan, The Lucille, The Saratoga, Yeaton v. United States, Hobart v. Drogan, Post v. Jones, and The Connemara, supra, is absolutely inconsistent with the views of the judges in the cases holding that one who has not appealed can be heard only in support of the decree. As we find it impossible to reconcile these two views, and must choose between them, we prefer to follow the case of Irvine v. · The Hesper as the simpler and more effective practice, as well as the latest pronouncement of the Supreme Court on the subject.

We therefore modify our former decision by directing the court below to increase the item of allowance for delay connected with dry docking from $105.75 to $310.27, and enter a decree in favor of the libelant for the sum heretofore awarded, so increased, with costs.

MEYERSON v. HART et al.

(Circuit Court of Appeals, Second Circuit. February 16, 1909.)

No. 140.

EVIDENCE (§ 417*) — PAROL EVIDENCE AFFECTING WRITING - COMPLETENESS OF WRITING.

A written contract of employment, complete in itself, by which one party agreed to employ the other for one year at a stated weekly salary, and the other party agreed to "accept said employment and devote his entire time and best energies to fulfilling the duties imposed upon him," cannot be added to by parol by reading into it a provision that the employé should be employed only as a foreman in the employer's business. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 1884; Dec. Dig. § 417.*]

In Error to the Circuit Court of the United States for the Eastern District of New York.

George Ryall, for plaintiff in error.

Henry L. Scheuerman, for defendants in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE, Circuit Judge. The complainant alleges that the defendants, having employed the plaintiff for the term of one year from December 26, 1905, at $50 a week, on March 9, 1906, refused to permit him longer to perform the terms of the contract, to his damage in the sum of $2,050.

The defendants insist that the plaintiff refused to perform the work assigned to him, pursuant to the contract of employment.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

So far as the question in controversy is concerned this contract is brief, clear, complete and free from ambiguity. It is as follows:

"Chicago, Illinois, Dec. 19th, 1905. "Hart, Schaffner and Marx bereby agree to employ I. Meyerson for a period of one year from December twenty-sixth, nineteen hundred and five at a salary of fifty dollars per week, payable weekly.

"I. Meyerson hereby agrees to accept said employment and devote his entire time and best energies to fulfilling the duties imposed upon him, and that he will not for a period of one year from said date become interested in or engaged in any other business; and that he will not devote any time to any other business or be connected with any other business.

"Hart, Schaffner & Marx. "I. Meyerson."

Assuming that the parties desired to make exactly this agreement would it be possible to use more perspicuous language? The defendants agree to employ the plaintiff for one year at a salary of $50 per week. The plaintiff accepts the employment and agrees to devote his time and energies to fulfilling the duties imposed upon him. If there be anything uncertain or incomplete about this writing we fail to comprehend what it is.

Granting that extraneous evidence might be necessary to show that the agreement related to the clothing business, it is enough to say that no such question arises on this record. The sole contention of the plaintiff is that he should be permitted to establish by parol that he was employed to act in the capacity of foreman. He has no other criticism of the contract to make. Stated more succinctly, the plaintiff asks that he be allowed to show by oral evidence that a written contract by which he agrees to perform the duties which his employers may impose upon him was, in fact, a contract which made it obligatory upon them to make him foreman of one of their shops and keep him there for a year, no matter how extravagant or incompetent he might be. He contends that he was to be foreman and nothing else. Even though business exigencies required the closing of his shop, even though fire destroyed it he was to be foreman still, and was entitled to draw his salary though he performed no service.

All this he claims under a written contract deliberately made and signed by him in which the word "foreman" does not appear. Undoubtedly the defendants intended to employ him as foreman if he were competent, but they knew little of his capacity and purposely and wisely required the insertion of a provision which enabled them to assign him to other work if a fair trial demonstrated that he was incapable of discharging the duties of foreman. Such an agreement was eminently fair to the plaintiff for, though performing inferior work, he was at all times to draw the high wages. Upon what theory we can reconstruct this agreement, made after ample time for reflection, by reading into it a provision which is not even implied by its terms, we are at a loss to discover.

Test it in another way; suppose the agreement had read, "We hereby agree to employ I. Meyerson as foreman for a period of one year" etc. Would the contention be entertained for a moment that the defendants might show by parol that this language meant that they were

to employ him as foreman only so long as it suited them to do so and could at any time transfer him to another and an inferior field of labor?

If the plaintiff's contention be correct they could do this.

In both cases the result would be the destruction of the written agreement and the substitution of an oral agreement in its place. This, as we understand it, the law forbids.

Nearly 60 years ago Prof. Greenleaf stated the rule as follows:

"When parties have deliberately put their engagements into writing, in such terms as import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking, was reduced to writing; and all oral testimony of a previous colloquium between the parties, or of conversation or declarations at the time when it was completed, or afterwards, as it would tend in many instances to substitute a new and different contract for the one which was really agreed upon, to the prejudice, possibly, of one of the parties, is rejected." Greenleaf on Evidence, vol. 1, § 275.

See, also, Brantingham v. Huff, 174 N. Y. 53, 66 N. E. 620, 95 Am. St. Rep. 515; Thomas v. Scutt, 127 N. Y. 133, 27 N. E: 961; Violette v. Rice, 173 Mass. 82, 53 N. E. 144.

It is a wise rule, a salutary rule, a rule designed to prevent misunderstanding and fraud. It was the result of the experience of the ablest jurists of this country and England and is the law to-day.

It is true that having run the gauntlet of numerous "hard cases" with the inevitable result which such cases are said to produce, it has emerged shorn of some of its ancient authority.

Parol evidence has been admitted to explain, interpret and complete, but we are not aware of any well-considered authority which goes to the extent of permitting parol evidence to change the purport of a perfectly plain written agreement.

If the rule be so relaxed as to permit this to be done a written contract will be little more than prima facie evidence of the intent and purpose of the parties.

The decision of this court in Development Co. v. King, 161 Fed. 91, 88 C. C. A. 255, is not at all controlling. There was in that case no question as to the meaning of the contract, which provided that the plaintiff should perform such labors as the defendant "may direct." The sole question was whether a direction that he proceed to a remote part of Mexico, was a reasonable one.

No question of this kind arises in the present case. No one pretends that there was anything unreasonable in requiring the plaintiff to work as a presser if the contract means what it says. It is only upon the theory that the agreement was one to employ the plaintiff exclusively as foreman that the assignment to do other work is asserted to be unreasonable.

If plaintiff had been directed to work as janitor, or to work in a shop of the defendants at San Francisco, and he had refused on the ground that the duty imposed upon him was unreasonable there would be a general similarity upon the facts between this case and the Development Co. Case.

As before stated the only question in the case at bar is whether the plaintiff should be permitted to show that he was employed solely as foreman.

We think the judgment is correct and should be affirmed.

ROBINSON v. ALGER.

(Circuit Court of Appeals, Second Circuit. February 16, 1909.)

No. 145.

SALES (§ 182*)-CONSTRUCTION OF CONTRACT-PASSING OF TITLE.

The delivery of a bill of sale of a yacht then lying at Detroit, containing a provision that it was understood and agreed that the seller was to deliver the yacht to the purchaser in good condition at the port of New York as soon as practicable after the opening of navigation in the spring, construing such bill in connection with contemporaneous letters from the seller, held not to evidence a completed delivery of the yacht, which passed title as matter of law, but to be consistent with an intention that the contract should be executory, and the title should not pass until delivery in New York, which left the question one for the jury.

[Ed. Note. For other cases, see Sales, Cent. Dig. §§ 492-495; Dec. Dig. § 182.*]

In Error to the Circuit Court of the United States for the Southern District of New York.

Olney & Comstock, for plaintiff in error.

Alexander, Watriss & Polk, for defendant in error.

Before COXE, WARD, and NOYES, Circuit Judges.

WARD, Circuit Judge. Robinson, the plaintiff below, brought this action to recover $1,000 (less $1,190.83 collected by attachment of defendant's property) paid to the defendant below under the following circumstances: In February, 1907, the plaintiff was looking for a yacht for use at his country place on Long Island during the following summer. The defendant owned the yacht Gypsy Joe, then lying at Detroit. The parties got into communication through one Jones, a broker. At the trial, the plaintiff being on the stand, a bill of sale executed by the defendant at Detroit February 2, 1907, was offered in evidence. It was the usual printed form, the material parts being as follows, written words in italic:

"To All to Whom These Presents shall Come-Greeting: Know ye, that I, Russell A. Alger, Jr., of Detroit, Mich., sole owner of the gasoline yacht or vessel called the Gypsy Joe of the burden of 14 x/100 tons, or thereabout, for and in consideration of the sum of one dollar and other valuable consideration dollars, lawful money of the United States of America, to me in hand paid, before the sealing and delivery of these presents by George H. Robinson, of New York, N. Y., the receipt whereof I do hereby acknowledge and am therewith fully satisfied, contented, and paid, have bargained and sold, and by these presents do bargain and sell, unto the said George H. Robinson, his executors, administrators, and assigns, the whole of the said gasoline yacht or vessel, together with all and singular the masts, bowsprit, sails, boats, anchors, cables, tackle, furniture, and all other necessaries thereunto appertain*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ing and belonging, the license of which said gasoline yacht or vessel is as follows, viz.: * To have and to hold the said gasoline yacht and appurtenances thereunto belonging unto him, the said vendee, his heirs, executors, administrators, and assigns, to the sole and proper use, benefit, and behoof of him the said vendee, his heirs, executors, administrators, and assigns, forever. And I, the said vendor, have promised, covenanted, and agreed, and by these presents do promise, covenant and agree, for myself and my heirs executors, and administrators, to and with the said vendee, his heirs, executors, administrators, and assigns, to warrant and defend the said gasoline yacht and all the other before-mentioned appurtenances against all and every person and persons whomsoever. It is understood and agreed that the said Russell A. Alger, Jr., is to deliver the said yacht Gypsy Joe to the said George H. Robinson, in good condition, at the port of New York as soon as practicable after the opening of navigation on Lake Erie and in the Erie Canal and Hudson river in the spring of 1907, without expense to the said George H. Robinson."

The plaintiff was then asked whether the yacht had been delivered to him, which question was objected to on the ground that title had passed when the bill of sale was delivered. The court sustained the objection. The plaintiff then offered in evidence three communications from the defendant to Jones, which were handed to him by Jones February 6th, along with the bill of sale. These documents were also excluded under objection.

A telegram, dated January 29th:

"Jan. 29, 1907.

"Dated Detroit, Mich. 29. To Frank B. Jones, 20 Broadway, N. Y. City. Will accept four thousand for Gypsy Joe guarantee in first class condition and deliver on opening navigation payment to be made immediately.

"Russell A. Alger, Jr."

A letter, dated January 30th of which the only relevant portion was: "Detroit, January 30, 1907.

"Mr. Frank Bowne Jones, 29 Broadway, New York, N. Y.-Dear Sir: 1 telegraphed you yesterday you could sell 'Gypsy Joe' for $4,000.00 delivered in New York. I will guarantee her in first-class condition, but I should expect the money to be paid at once. I will send down for the 'Glenda' probably about the 1st of May. In the meantime I will take my crew from her, put them aboard the Gypsy Joe, and deliver her in New York City. This would make it quite convenient for me."

The

A letter, dated February 4th, of which the only relevant portion was: "Detroit, February 4, 1907. "Mr. Frank Bowne Jones, New York, N. Y.-Dear Sir: I enclose you here. with bill of sale duly signed and witnessed. I also enclose you O. K. initialed inventory of the Gypsy Joe. However, as you will see, it does not include elther the searchlight or the dynamo. I think I can find the dynamo. searchlight I at once disposed of. However, you can tell Mr. Robinson that in place of these he is receiving the awnings and the cushions as I purchased them complete, as you remember, for the boat, as well as the $80.00 imported coil used by the Packard car. This certainly is a very nice boat. Before it goes down I will have it thoroughly overhauled, so that it will be in practical commission by the time he receives it. As far as the insurance goes, I will carry this myself. I will not ask Mr. Robinson to have anything to do with the boat until it is delivered. By the way, does not my insurance cover me until that time, though the boat is laid up, or do I have to take any further action?"

Thereupon the plaintiff gave Robinson his check, dated February 6, 1907, for $1,000, to the order of defendant. The rulings of the trial