Statement of the Case. "The first party hereby appoints, subject to conditions hereinafter expressed, the second party its exclusive vendor for its sewing machines, parts and attachments, in and for the following-named territory, to wit: the city of Philadelphia, Pa. and the adjacent country lying within a radius of ten miles from the city hall of said city. The second party hereby accepts said appointment. The first party will sell for the present to second party its sewing machines and parts thereof at 60 per cent discount from its present New York retail price list, and its needles, attachments, silk and cotton at its lowest wholesale rates. In the event of a change (the liberty to effect which is not herein intended to be restricted) in retail prices or of a general revision of discounts by first party, the second party is to be as favorably considered then in the readjusting and fixing of discount rates to him as is extended to him on present basis of prices. All bills owing from second to first party shall be paid in cash 30 days from date of same. The first party will not knowingly supply its goods at a discount to go within the limits of territory hereby assigned; but the first party reserves the right always to sell its sewing machines, parts and accessories at full retail rates to go any where. The established retail prices of first party are to be maintained for retail trade, and the second party is bound to sustain them and will bind all subvendors or agents of his to sustain said established retail prices. Second party will be allowed to fill orders from any locality at full list rates, but trade must not be solicited by his connivance or consent in the territory of other agents, and discounts or any equivalent device therefor must not be allowed in any form on articles herein specified permitted to go out of his own territory. Machines or parts, needles or attachments counterfeiting, infringing or in any degree trespassing upon ours, or in any effect trading upon our name, must not be dealt in or countenanced by second party, but it is hereby agreed that his time, attention and abilities must primarily be devoted to the forwarding of the interest of the party of the first part. If, for any reason, at any time the connection hereby formed shall cease, the first party shall have the right to buy back of its goods Statement of the Case. sold to second party all such goods as first party may select, first party to pay therefor same prices as charged second party. "Second party agrees to purchase from first party during the year 1875 at least $20,000, net, worth of machines, parts and accessories, to be taken in equal monthly parts, and to be paid for as stated herein. Violation of the spirit of this agreement shall be sufficient cause for its abrogation. Permission is granted second party to trade in all former territory occupied by him until such time as first party shall form other connections for occupying the territory not contained in that designated therein as belonging to second party. "And it is agreed and understood that this appointment or agency is not salable or transferable by second party without obtaining the written consent of first party, but such consent is to be given providing the purchaser or other person is acceptable to said first party. First party consents to renew and extend second party's note, $10,000, maturing January 23-26, 1875, for one year from said date, without interest, upon consideration of this agreement alone. All contracts or agreements made prior to the date first written above are hereby nullified and satisfied." 52 100 Subsequently, February 15, 1877, Ewing executed the following receipt, which was endorsed on the contract: "Received, New York, Feb'y 15, 1877, the sum of four hundred and twenty dollars, making the discount up to 55 per cent on all goods received by me since the revision of discounts in August, 1875, same amount being in full for all claims or demands for arrears of discounts, allowances or any other claims I may have up to date hereof. In consideration whereof I also now confirm the within contract, admitting the company's right to revise discounts or prices as in its judgment it may deem proper and just, in conformity with the within contract. D. S. Ewing." The parties continued to act under the agreement of 1874 until the latter part of 1879. On the 10th day of October of the latter year the company notified Ewing of their purpose to abrogate their agreement at the expiration of sixty days Statement of the Case. from that date, saying: "In the meantime, the company will be ready and willing to take off your hands the store now occupied by you, and they will purchase, if you desire to sell, the fixtures contained in the store at a just valuation. They will also purchase all stock which you have on hand which has been obtained from the said company, in accordance with the terms of their contract. Should you be desirous of terminating the said agreement at an earlier period than the time herein designated, the company will join with you in an agreement for such earlier termination of the contract." In reply to this notice, Ewing wrote to the company: “I do not accept notice for the abrogation of the contract existing between us, for the reason that I deny your right thus, or by any arbitrary process, to determine said contract. Should you wish to open negotiations for the purchase of any thing, right or privilege which I hold, that may be of value to you, I shall be pleased to receive communications bearing upon the subject." At the trial of the present action, brought to recover damages for breach by the company of the contract of 1874, Ewing introduced the agreement of 1867, and gave evidence tending to show the value of the business in that and succeeding years, his faithful performance of the contract, and the damages he had sustained by reason of the alleged breach. To the introduction of that evidence the company objected, but the objection was overruled, and an exception taken. The defendant did not introduce any proof, but insisted at the trial and insists here, that it appeared from the evidence that Ewing, prior to the abrogation of the contract, did not give his time and labor, primarily, for the benefit of its business in his hands. The defence was based, in part, upon the broad ground that the contract of 1874 was revocable at the will of the company, or, at least, upon reasonable notice to Ewing; and, as by the uncontradicted evidence sixty days' notice was given of the purpose to abrogate it, that the law was for the company. The court refused to so charge the jury, and instructed them, in substance, that the plaintiff was entitled to recover any Argument for Defendant in Error. damages sustained by reason of such abrogation, unless it was shown that he failed to devote his time, attention and abilities, in good faith and primarily, to forwarding the company's interests as they were involved in the execution of the contract. Mr. Wayne Mac Veagh for plaintiff in error. Mr. A. H. Wintersteen was with him on the brief. Mr. Frank P. Prichard for defendant in error. G. Johnson filed a brief for same. Mr. John I. The contract in suit was one of sale, not of agency. The right conferred upon Ewing was analogous to that conferred upon the licensee of a patent. The nature of such licensee's right has been very clearly considered by this court recently in the case of St. Paul Plow Works v. Starling, 140 U. S. 184. Ewing was not constituted an agent to sell on behalf of the defendant, for its account, its machines. It was made his duty to purchase for himself, and to pay for, the machines which he desired to sell. The defendant agreed with him that it would furnish to him, to be sold by him, for his own account, within a designated territory, its machines. It further agreed that within said territory he alone should be allowed to sell the same. It seems too plain for argument that the agreement by the defendant with the plaintiff was one of sale and not of agency. It not only conferred upon the latter the right to sell, but it excluded others from selling. Was this agreement one of sale only so long as the defendant desired to sell, or one to sell to him without limit of time? The agreement by Ewing "to purchase from first party during the year 1875 at least $20,000 net worth of machines, parts and accessories to be taken in equal monthly parts and to be paid for as stated herein," was not one which it was competent for the defendant at will to revoke. This agreement, by itself, is sufficient to show that the provision was Opinion of the Court. one, not at will, but for a time, and for a time not terminable with the year 1875. Inasmuch as the contract was not to be at will, it was to have some duration. The least extent which can be given it is for the life of Ewing, or during the continuance in business of the defendant. An agreement to run for some time, not limited, cannot be otherwise construed. II. The contract of 1867 was properly admitted in evidence. The contract of 1867 was admissible in evidence not only as throwing some light upon the question of the value of the contract broken, but also for the purpose of showing the fact that the agreement of 1874 rested upon a consideration. The contract of 1874 stated that "All contracts or agreements made prior to the first date written above are hereby nullified and satisfied." It was the right of the jury to know that a consideration had been given. It was impossible to correctly understand the relation established by the contract of 1874 without a knowledge of the situation. It was not claimed that the contract of 1867 was admissible to modify, to alter, or to vary that of 1874, but simply to show that the parties had dealt together previously about the same subject matter, and that the new agreement grew out of such past relation. Though the learned judge did not admit the contract of 1867 for this purpose, we submit that he should have done so. III. The value paid to the defendant by the plaintiff for the exclusive right to sell its sewing machines in 1867, in connection with the oral testimony, was pertinent to the issue raised as to the amount of damages due the plaintiff. MR. JUSTICE HARLAN, after stating the case, delivered the opinion of the court. If this action was based upon the agreement of 1867, there would be some ground for holding that the company was obliged, by that agreement, to continue Ewing as agent so long as he performed its stipulations. We are only concerned, however, with the agreement of 1874, which materially differs |