The opinion of the court was delivered by: MARSH
The defendant has moved for summary judgment on the ground that 'Plaintiffs have failed to meet the burden of proof of 'Exclusive Contract Rights' which by their own admission are essential for proof of their claim.'
We think that the motion should be denied.
In this Circuit the principles which are applicable to the consideration of a motion for summary judgment are as follows:
The moving party has the burden of showing that there is no genuine issue of a material fact,
which under the applicable substantive law would entitle him to judgment as a matter of law.
'* * * Summary judgment may be granted only if * * * '* * * there is no genuine issue as to any material fact and * * * the moving party is entitled to a judgment as a matter of law.' Fed.R.Civ.P. 56(c), 28 U.S.C.; see F.A.R. Liquidating Corp. v. Brownell, 3 Cir., 1954, 209 F.2d 375. Any doubt as to the existence of a genuine issue of fact is to be resolved against the moving party. Sarnoff v. Ciaglia, 3 Cir., 1947, 165 F.2d 167, 168. * * * Documents filed in support of a motion for summary judgment are to be used for determining whether issues of fact exist and not to decide the fact issues themselves. Frederick Hart & Co. v. Recordgraph Corp., 3 Cir., 1948, 169 F.2d 580.' Lawlor v. National Screen Service Corporation, 3 Cir., 1956, 238 F.2d 59, 65, judgment vacated on other grounds, 1957, 352 U.S. 992, 77 S. Ct. 526, 1 L. Ed. 2d 540.
The plaintiffs contend that the 'Supplement to Original Contract' dated September 11, 1956, gave them the exclusive right to sell defendant's investment plans in the 'Southern Area Command territory' of Europe, and they point to the wording of the said supplement to support this contention.
Plaintiffs do not contend that the original contract gave them any exclusive rights. Defendant argues that in the first place there was no consideration for the supplement and it is, therefore, not binding; and in the second place that the language of the supplement does not support plaintiffs' contention. Now, unless we can find as a matter of law from the wording of the contract documents themselves that (1) there was no consideration for the supplement, or (2) that they did not give plaintiffs the exclusive right to sell defendant's investment plans in the area designated therein, the motion must be denied, for it is obvious that without such a finding there would then remain a 'genuine issue of a material fact' which would preclude the entry of summary judgment in favor of defendant. Lawlor v. National Screen Service Corporation, supra.
'The Representative (plaintiffs) is hereby authorized * * * to personally solicit applications for and to sell Systematic Investment Plans and Fully-Paid Plans sponsored and distributed by the Sponsor (defendant), and shall have the right, but not exclusively, to operate as Representative for the purposes aforesaid in the following territory and shall operate hereunder only in such territory, to-wit:
'Europe as designated by Federated Plans, Inc.' (Emphasis supplied.)
Plaintiffs contend that the original contract permitted them to operate throughout that portion of the continent of Europe which was occupied by the Armies of the United States and that in consideration of the provisions of the supplement, plaintiffs agreed to operate in a restricted area known as the 'Southern Area Command territory'. Defendant contends that the original contract did not give plaintiffs the right to operate throughout that occupied portion of Europe, but only such portion as 'designated by' defendant, that the supplement constituted this designation, and that since defendant was simply exercising a right conferred by the original contract, plaintiffs gave up nothing in the supplement and there was, therefore, no consideration for it.
We certainly cannot say as a matter of law that there was no consideration for the supplement.
If plaintiffs' contended construction is correct, then there was consideration for the supplement, for the relinquishment of a contract right (i.e., the right to sell throughout that portion of Europe occupied by the Armies of the United States) would certainly be valid consideration for the supplement. See Williston on Contracts, Third Edition, § 135A, p. 570; Dreifus v. Columbian Exposition Salvage Co., 1900, 194 Pa. 475, 45 A. 370, 371. And if defendant's contention is correct, there was no consideration for the supplement. But, the phrase 'Europe as designated by Federated Plans, Inc.' is ambiguous. We cannot say as a matter of law that it means 'that portion of Europe which is occupied by the Armies of the United States, as has been designated by Federated Plans, Inc.', as plaintiffs seem to contend, or that it means 'Europe, that part of Europe as will be designated by Federated Plans, Inc.', as defendant apparently contends. In Gill v. Benjamin Franklin Realty & Holding Co., 3 Cir., 1930, 43 F.2d 337, 338, it was stated:
'When the language used in a written instrument is ambiguous, vague or uncertain and is fairly susceptible of two constructions, parol evidence is always admissible to show the situation of the parties and the circumstances under which the written instrument was executed for the purpose of ascertaining the intentions of the parties and of properly construing the instrument. There is one paramount rule of construction to which all others are subordinate and that is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles in order that the parties may be bound by what they intended to be bound by and nothing more. Merriam v. United States, 107 ...