Appeal from the District Court of the United States for the District of Kansas; Richard J. Hopkins, Judge.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
On or about August 9, 1934, Kansas City, Kansas, Leo Palmisano, Frank Palmisano and James Palmisano executed a contract with the United States Brewing Company of Chicago, Illinois, in which they agreed to handle and distribute the company's beer in the territory assigned to them. Apparently at the same time and as a part of the same transaction, a guaranty contract was signed by the three Palmisano brothers and by Mary Palmisano, wife of James Palmisano, in which they guaranteed performance of the districturo's contract. Beer was distributed under this contract until 1939. At that time there was a balance due the company of $4,580.52. Payment being refused, an action was instituted on the bond to recover the amount due. Judgment was entered against the parties to the bond. All have appealed except Leo Palmisano.
Appellants contend that the distributor's contract was void because it provided for the distribution of beer in Kansas, contrary to the criminal laws and in violation of the settled policy of the state, and that therefore no recovery may be had thereunder nor on the bond given to assure performance thereof.
The distributor's contract is not set out in the record. It does not appear whether it specifically designated the territory in which the Palmisano Brothers were to distribute beer. Apparently it did not, for on August 21, 1934, the company supplemented the contract by a letter of confirmation, which reads as follows:
"So that there will not be any misunderstanding, we inquired of our Mr. Blackman as to the territory which he allotted you in the handling of our beers. According to his letter of August 19th, we understand you are to cover the following counties:
"We hope this is according to your understanding, but if not, please advise us.
"How are you progressing in the distribution of our beers? We would appreciate very much hearing from you.
"With kindest regards, we are"
If there was any ambiguity in the contract as to the territory assigned, it was dispelled by this letter of confirmation. It definitely fixed the territory allotted by the contract as Wyandotte, Leavenworth and Johnson Counties - all located in Kansas. The Palmisano Brothers could not claim the right under this contract to distribute beer in counties other than the ...