that it would terminate in 1949. They testified to what they believed. They told what the circumstances were under which they paid. Their testimony in effect showed what was in their minds.
Plaintiffs contention appears to be that this testimony and the copy of a contract is inadmissible as it violates the parol evidence rule, and a proper foundation for introduction of secondary evidence was not laid.
If this were a suit based on the 1948 contract, and rights under that contract were sought to be enforced, there might be something to plaintiffs' contention. However, there was no attempt here to alter, vary or contradict the terms of any written contract. See Brown, Pa.Evidence, p. 223, et seq.
'The parol evidence rule has no application where the writing is not the basis of the action, and is only collaterally involved.' Brown, Pa.Evidence, p. 237. Here the 1948 contract was not the basis of the action, and the parol evidence rule is clearly inapplicable.
Plaintiffs also contend that the contract about which the defendants testified should not have been admitted into evidence. With this contention we cannot agree. The nature of the best evidence rule and its effect is succinctly set forth in Brown, Pa.Evidence, p. 201, et seq. This rule provides that, 'When the contents of a document are in issue, the document itself is the primary evidence, and all other evidence is secondary.' The rule provides that, '* * * secondary evidence of the contents of a document cannot be introduced into evidence unless the absence of the original has been accounted for.' Brown, supra, p. 202. Fundamentally, the contents of the 1948 contract was not in dispute. The defendants contended that they executed a contract in 1948; the plaintiffs contended that there never was a 1948 contract executed. Its contents were not disputed; its existence was. The offer of a copy did not prove its existence. Plaintiffs' testimony and defendants' testimony was that there was no copy of the contract existing. Secondary evidence was then admissible. Brown, supra, p. 203, as evidence of what the contract contained if there was a contract.
This evidence about the contract was evidence that would tend to support defendants' contention that it paid, thinking it was paying on a 1948 contract. The admission of the evidence about it and the copy of it violated no specific rule of exclusion.
The question in issue was did the defendants ratify the contracts on which plaintiff based its suit? This testimony only went to the issue of ratification. Frankly we do not think it was of much weight, since by its terms it expired before the defendants ever paid any payments. What effect this expired contract had on the intent of the defendants in making the payments was for the jury. The evidence had to be admitted, and in reality the admission of the 1948 contract was more favorable to the plaintiffs' position than the defendants'.
Even if the admission of this testimony were error, and we do not think that it was, in order to justify a new trial the error must be prejudicial. The admission of the copy of the 1948 contract did not turn the scales in defendants' favor. See Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.; Vol. 14, Cyclopedia of Federal Procedure, § 68.59.
The plaintiffs in addition seek a new trial on the grounds of after discovered evidence. This evidence was that it sent the defendants a form letter advising them of their obligation to pay royalties to the Fund. However, this was evidence that was in plaintiffs' files at all times and which it simply failed to discover although it was always available to them, and plaintiffs admit this. This evidence could have been produced at the trial by the exercise of reasonable diligence. The mere fact that plaintiffs' employees did not discover this and bring it to the attention of plaintiffs' attorney is not a sufficient reason in law to grant a new trial. Furthermore, we do not think that this evidence would change the result of the trial. Vol. 10, Cyclopedia of Federal Procedure, § 34.05.
We feel that the plaintiffs had a fair trial. They were represented by competent counsel, who very capably represented their interests. The jury simply decided in favor of the defendants. It was a case for the jury to decide, and no sufficient reason has been shown to disturb the jury's findings.
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