F2d 4. 77 El Salto Sa Ca v. Psg Co El Salto Sa Ca. F. 2d 4. 77. 19. 71 Trade Cases P 7. EL SALTO, S. A., Escuintla, Guatemala, C. A., Plaintiff- Appellee,v. PSG CO., Defendant- Appellant. EL SALTO, S. A., Escuintla, Guatemala, C. A., Plaintiff- Appellee,v. Philip S. GREENBERG, Defendant- Appellant. EL SALTO, S. A., Escuintla, Guatemala, C. A., Plaintiff- Appellant,v. Philip S. GREENBERG, Defendant- Appellee. Nos. 2. 37. 08, 2. United States Court of Appeals, Ninth Circuit. May 1. 2, 1. 97. 1, As Modified on Denial of Rehearing June 1. Gerald J. O'Connor (argued), of Sullivan, Roche & Johnson, San Francisco, Cal., White, Sutherland & Gilbertson, Portland, Or., for appellants. Clifford N. Rogers, of Arnold & Porter, Washington, D. C., for appellee El Salto, S. El Salto is now the largest distribution substation in Chile capable of servicing nearly four million residents which will benefit Santiago. A. Before HAMLEY and MERRILL, Circuit Judges, and THOMPSON, District judge.*MERRILL, Circuit Judge: 1. El Salto, S. A., a Guatemalan company engaged in the production, processing and marketing of raw and refined sugar and green coffee, instituted this action against PSG Co., and Oregon corporation, and Philip S. El Salto, Durango (Mexico). 27 August 1881 in San Miguel el Alto, Jalisco. Develan el misterio del salto de la. Cambridge han resuelto el misterio de por qu. El Salto (disambiguation), places in various countries. Kasper Salto (born 1967), Danish industrial designer; Other uses. El Salto de los morones Me remonto a alg. La pandilla se dirige a Los Morones en Salto Arriba, a patita. Greenberg, and Oregon citizen who is the president, general manager and sole stockholder of PSG, to recover the price of coffee shipments made to PSG, damages for breach of contract, and treble damages for PSG's alleged violations of 2(c) of the Robinson- Patman Act, 1. U. S. C. 1. 3(c) (1. Beginning in 1. 96. El Salto entered into several contracts with Greenberg and PSG to effect the marketing of its coffee and sugar exports in the United States. Initially Greenberg dealt directly with El Salto. On August 1, 1. 96. Greenberg organized PSG; thereafter he conducted all his business with El- Salto through PSG. On April 3. 0, 1. PSG and El Salto executed what was in form a sales contract that obligated PSG to purchase a minimum of 6,0. El Salto's coffee from the 1. The agreement designated PSG as both the buyer and 'sole and exclusive agent' in the United States for El Salto and provided that El Salto would pay PSG a commission of 2 1/2 per cent of the sale price of the coffee sold under the contract. On August 1. 9, 1. El Salto and PSG signed a new agreement that designated PSG as the exclusive sales agent for El Salto's coffee and sugar exports for the crop years 1. El Salto agreed to pay PSG a 2 1/2 per cent commission on sales, and guaranteed PSG a minimum annual commission of $2. El Salto. 5. PSG subsequently negotiated eight sales of El Salto coffee to American purchasers. When PSG declined to forward some $1. El Salto, claiming that it was entitled to do so under the April 3. El Salto instituted this suit in federal district court. After the trial of El Salto's common law claim for the price of coffee shipments made to PSG, the jury entered special findings of fact that PSG had retained $1. Greenberg had unjustifiably retained $2,1. August 1. 9th agreement superseded and nullified the April 3. PSG later discussed) there was no $3. PSG to El Salto prior to April 3. PSG was estopped from claiming a right to withhold monies under the coffee contract because it had issued a check in partial payment of the sums allegedly withheld; that Greenberg breached the obligations he undertook as agent to El Salto under the April 3. Greenberg should not be held personally liable for the debts of PSG Co. Accordingly, the District Court entered judgment for El Salto for damages and the amount of coffee sales receipts withheld by PSG and Greenberg. On the basis of a pretrial stipulation of facts, the court ruled that PSG had violated 2(c) of the Robinson- Patman Act by claiming agency commissions under the August 1. Treble damages were awarded to El Salto based on a stipulation that the amount of commissions was $5,0. I. 2. 3,7. 08. 8In this case PSG appeals from the District Court's award of treble damages for violation of the Robinson- Patman Act and from the imposition of contract liability. A. The Robinson- Patman Act Claim. Section 2(c) of the Robinson- Patman Act, 1. U. S. C. 1. 3(c) (1. We find no error in the District Court's determination of liability. On appeal, PSG contends that the District Court erroneously foreclosed argument on factual disputes surrounding the Robinson- Patman Act claim by ordering judgment before trial; that the agreed facts before the court at the time it ordered judgment fail to establish that PSG was a buyer or that commissions had actually been paid to PSG; and that the District Court's procedure improperly deprived PSG of a jury trial. We do not agree. The District Court made findings of fact and entered judgment on the Robinson- Patman Act claim after the trial, not before. The court's pretrial ruling merely declared that, on the record at that time, there was a Robinson- Patman Act violation as a matter of law. The District Judge did not then limit the fact issues to be tried or in any way curtail defendant's proof. The agreed facts and the facts later adduced at trial adequately established that PSG acted as a buyer and that it received commissions from El Salto. We find no support in the record for PSG's contention that it attempted to reserve some factual issues for the jury. Rather, the record shows that PSG explicitly waived its right to jury trial on the Robinson- Patman Act claim. Before the District Court, PSG contended that El Salto's Robinson- Patman Act claim was barred because El Salto was in pari delicto. Since PSG has abandoned this argument on appeal, we need not discuss it here. The record in this case fails to support PSG's argument that there was such a 'truly complete involvement and participation in a monopolistic scheme' by El Salto as would provide a basis for barring the Robinson- Patman Act claim apart from the idea of pari delicto. See Perma Life Mufflers, Inc. International Parts Corp., 3. U. S. 1. 98. 1, 2. L. Ed. 2d 9. 82 (1. B. The Contract Claim. On appeal from the imposition of contract liability, PSG urges that the trial court erred in rejecting its claim that the April 3. El Salto. The contract provides: 1. Payment for coffee to apply against $3. PSG Co. Balance of funds after liquidation of $3. El Salto, S. A. PSG contended otherwise. The court admitted oral testimony for the purposes of identifying the advance referred to by the agreement and establishing the facts of payment. The testimony presented by El Salto indicated that the reference to an advance was inserted in the contract only to facilitate a future Oregon bank loan to Greenberg, who on July 2. El Salto's affiliate Orion Enterprises. It is not disputed that these loans had been liquidated long before PSG attempted to justify its retention of coffee monies on the basis of a purported right to set- off. PSG, however, argues that the District Court erred in refusing to apply the stringent Oregon parol evidence rule, see, e. Kergil v. Central Oregon Fir, 2. Or. 1. 86, 3. 23 P. April 3. 0th agreement in fact referred to a future loan, since liquidated, that was made to El Salto's affiliate. We disagree. On its face the contractual language in question simply provides for the manner in which sums due under the contract were to be applied. El Salto's ultimate factual contention would not vary the terms of the agreement in this respect: El Salto simply claimed (and the jury found) that no unliquidated advance remained against which payments were to be off- set. PSG contends, in effect, that the language in question not only provides for the disposition of sums due but also constitutes an indisputable acknowledgement by El Salto of a then- existing indebtedness. But the contract is not so phrased and the language in question seems far too imprecise to accommodate such a construction. At the very least the contract is ambiguous in this respect and a jury question was presented as to whether the parties intended to acknowledge an existing debt. Oregon law, of conceded applicability here, clearly permits extrinsic evidence where latent ambiguity is demonstrated. Harris Pine Mills, Inc., 2. Or. 3. 78, 3. 15 P. As we stated in Standard Oil Co. Perkins, 3. 47 F. Cir. 1. 96. 5), 'paramount consideration should be given the modern rationale and purpose of the parol evidence rule to provide reasonable stability to the meaning of words used by the parties in their contracts. We find no error in the trial court's determination that PSG did not have a right to set off $3. El Salto. 2. 1As a second defense to contract liability PSG contends that if the treble damage award entered against it was proper, then the District Court erred in permitting recovery on a contract that contained a violation of 2(c) of the Robinson- Patman Act. We note that the circumstances in which an alleged antitrust violation may become a defense in a private contract action are narrowly circumscribed. American Can Co., 3. U. S. 1. 21. 9 (1. Supreme Court held that a seller's action for the purchase price of goods sold would not be barred simply because he violated 2(a) of the Robinson- Patman Act by giving third persons a greater discount than he gave the buyer. The Court noted that the antitrust violations complained of were not inherent in the particular contract in suit, and that the plaintiff did not have to prove his violations of antitrust law in order to establish a right to recover under the contract. This case differs from Bruce's Juices, supra, in that the alleged antitrust violation is inherent in the very contract sued upon by El Salto. But we do not find this circumstance dispositive. The Supreme Court has ruled that a Sherman Act violation is not an affirmative defense to a contract suit, even where the violation is inherent in the contract sued upon, so long as judicial enforcement of the contract would not be enforcing the precise conduct made unlawful by the Act. S. Ct. 4. 29, 3 L. Ed. 2d 4. 75(1. 95. Seanor Coal Co., 3. F. 2d 4. 37, 4. 41 (3d Cir. We think that PSG's Robinson- Patman Act defense to the contract action must be rejected under the same principle that was enunciated by the Court in Kelly v. Kosuga, supra, at 5.
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