March 19, 1993    UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1779

                 PAUL ARPIN VAN LINES, INC.,

                     Plaintiff, Appellee,

                              v.

        UNIVERSAL TRANSPORTATION SERVICES, INC. a/k/a
      UNIVERSAL TRANSPORTATION SERVICES LIMITED, ET AL.

                   Defendants, Appellants.
                                          

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

         [Hon. Frances J. Boyle, U.S. District Judge]
                                                    

                                         

                            Before

                   Torruella, Circuit Judge,
                                           
                Bownes, Senior Circuit Judge,
                                            
                     Cyr, Circuit Judge.
                                       

                                         

   Nicholas Gorham, with whom Edmund L. Alves,  Jr., and Gorham
                                                               
and Gorham were on brief, for appellant.
        
   Richard G. Galli, with whom Barbara Harris and Richard Galli
                                                               
&amp; Associates Incorporated were on brief, for appellee.
                       

                                         

                        March 19, 1993
                                         

          BOWNES, Senior Circuit Judge.  On October 12, 1989,
          BOWNES, Senior Circuit Judge.
                                      

Universal  Transportation  Services,  Inc.,  entered  into  a

contract  with Paul Arpin Van Lines, Inc.  Arpin is primarily

in the  business of  moving and  storing household  goods and

furniture.    Universal  is  in the  business  of  soliciting

customers and accounts for moving and storage companies.  The

contract  had a  term of  three years,  with a  provision for

year-to-year  extensions   after  the  three-year   term  had

expired.  On November 8, 1990,  Arpin notified Universal that

it  was terminating the contract.  After Universal refused to

accede  to   pre-term cancellation,  Arpin, on  May 3,  1991,

filed a declaratory judgment action in the district court  of

Rhode Island, seeking a  judgment that:  (a) the  contract is

"canceled,  rescinded or . . . null and void for illegality";

(b)   that   the   contract   is   "illegal,   unlawful   and

unenforceable."

          Universal duly answered, denying that there was any

legal basis for  terminating the contract.    Universal  also

brought a counterclaim  on its  own behalf and  on behalf  of

McGowan  Associates,  Inc.    The  counterclaim  states  that

Michael J. McGowan is the principal shareholder and president

of Universal  and McGowan Associates, Inc.   The counterclaim

alleged three counts:  Count I sought damages of $300,000 for

Arpin's  attempt   to  cancel  the  contract   prior  to  its

                             -2-

termination date; Count II alleged  violations of restrictive

covenants in  the contract  and claimed damages  of $300,000;

Count III  alleged interference  by Arpin with  a contractual

relationship  between  another  moving  company,  Richard  J.

Coriell  &amp;   Co.,  Inc.,  and  both   Universal  and  McGowan

Associates, Inc.; damages of $300,000 were claimed.

          The  case  was   tried,  jury-waived,  before   the

District  Court of Rhode  Island.   The district  court found

that  McGowan and  the business  entities he  controlled were

"brokers" and as  such were  required to be  licensed by  the

Interstate  Commerce  Commission  pursuant  to  49  U.S.C.   

10921.1   It is  undisputed that neither  McGowan, Universal,

nor McGowan Associates were  licensed by the ICC.   The court

therefore  held that the contract was illegal.  It found that

Universal  was  not entitled  to  commissions  it might  have

earned over the remaining two-year term of the contract.  The

court, however,  held that Universal was  entitled to collect

the commissions  it had earned  during the time  the contract

was  in  effect.   It found  that  Universal was  entitled to

"$3,231.05  of   restitution   for  unreported   and   unpaid

commissions and  $7,891.27 of  restitution for  reported, but

unpaid,
      commissions."
                  Thedistrictcourt
                                 alsodismissed
                                             thecounterclaim.

                    

1 49 U.S.C.   10921 provides in pertinent  part that a person
may be a broker for motor carriers, "only if the person holds
the appropriate  certificate, permit or  license issued under
this chapter authorizing the transportation or service."

                             -3-

          Appellants,   Universal  and   McGowan  Associates,

dispute  the  district court's  holding  that  they were  not

entitled to the  commissions they would have  earned over the

unexpired term of the  contract.  They have not  appealed the

district court's computation of  the commissions due them for

business  generated  during  the  time the  contract  was  in

effect.  The appellee,  Arpin, has not appealed the  award of

commissions.  The root issue on appeal, therefore, is whether

appellants can  recover,  as damages,  the  commissions  they

would  have earned if the contract had remained in effect for

its three-year term.  We hold they cannot.

              The Enforceability of the Contract
                                                

          Appellants  argue first  that  the contract  should

have  been enforced  regardless  of whether  McGowan2 was  an

unlicensed  broker.  We note first that the contract here was

not intrinsically  illegal; it was not  a criminal conspiracy

or one  whose purpose directly violated the  prohibition of a

statute.     The   question  is   whether  the   contract  is

unenforceable because McGowan did not have a broker's license

from the ICC, as required by 49 U.S.C.   10921.   The general

rule  is that an otherwise valid contract that results in the

violation  of a  public-protection statute  or  regulation is

unenforceable.  Resolution Trust  Corp. v. Home Sav.  of Am.,
                                                            

                    

2   We  follow  the  lead   of  the  parties   and  refer  to
defendants appellants as McGowan. 

                             -4-

946 F.2d 93, 96  (8th Cir. 1991); Securities  Industry Ass'n.
                                                             

v. Connolly, 883 F.2d  1114, 1123 n.7 (1st Cir.  1989), cert.
                                                             

denied, 496 U.S. 956  (1990); Shinberg v. Bruk, 875  F.2d 973
                                              

(1st Cir. 1989); Smithy  Braedon Co. v. Hadid, 825  F.2d 787,
                                             

790  (4th Cir.  1987);  6A Arthur  Lynton  Corbin, Corbin  on

Contracts,    1512, p. 711 (1962).   See Restatement (Second)
                                        

of Contracts 2d   181 (1981).

          This  general  rule,  however,  is almost  as  much

honored  in the  breach as  in the  observance.   The Seventh

Circuit  has pointed  out  that "the  defense of  illegality,

being in character  if not origins an equitable  and remedial

doctrine, is not automatic but requires . . . a comparison of

the  pros and  cons of enforcement."   Northern  Indiana Pub.
                                                             

Serv. Co. v.  Carbon County Coal Co., 799 F.2d  265, 273 (7th
                                    

Cir. 1986).   In that case  the court held  the contract  was

enforceable, id.; it also noted that the statute violated was
                

"an  anachronism a regulatory  statute on  which the  sun set

long ago."    Id. at  274.   In  Resolution  Trust the  court
                                                  

observed:  

          Some  federal  courts  have applied  this
          less-than-absolute rule  and have refused
          to enforce illegal  contracts only if the
          statute or regulation explicitly provides
          that  contracts in violation are void, or
          if  the  interest in  enforcement clearly
          outweighs   the  public   policy  against
          enforcement.  

946  F.2d at  96-97 (footnote  and  citations omitted).   The

court held that  the case before it was not  one in which the

                             -5-

interest  in  contract  enforcement  clearly  outweighed  the

public  policy  against  enforcement  and  held the  contract

"illegal and therefore unenforceable."  Id.
                                           

          McGowan  relies  on  two  Supreme  Court  cases  in

arguing for enforcement  of the contract.   In Bruce's Juices
                                                             

v. American Can Co., 330 U.S. 743 (1947), the Court held that
                   

it was no defense to a suit for collection of  notes that the

seller had engaged in price discriminations against the buyer

violating  the  Robinson-Patman  Act.    The  Act  prescribed

criminal  penalties and  entitled  injured persons  to treble

damages, but did not specifically render the sales, for which

the  notes   were  given,  illegal  or   the  purchase  price

uncollectible.   During the course of its  opinion, the Court

stated:

          But when the  contract sued  upon is  not
          intrinsically  illegal,   the  Court  has
          refused  to allow property to be obtained
          under   a   contract   of  sale   without
          enforcing the duty to pay for it  because
          of  violations of  the  Sherman  Act  not
          inhering  in  the particular  contract in
          suit  and  has  reaffirmed the  "doctrine
          that  'where  a  statute  creates  a  new
          offense  and  denounces  the penalty,  or
          gives  a  new  right  and   declares  the
          remedy,  the punishment or the remedy can
          be   only   that   which    the   statute
          prescribes.'"   D.R.  Wilder Mfg.  Co. v.
                                                
          Corn Products Refining Co., 236 U.S. 165,
                                     
          174-175;  Connolly  v.  Union Sewer  Pipe
                                                   
          Co., 184 U.S. 540.
             

Id. at  755.  In  Kelly v. Kosuga,  358 U.S. 516  (1959), the
                                 

Court upheld the right of a  seller to recover from the buyer

                             -6-

the unpaid balance due on a lawful sale even  though the sale

was made pursuant to an  agreement which violated   1  of the

Sherman Act.  The Court noted:

            As  a  defense to  an  action based  on
          contract, the plea of illegality based on
          violation of  the Sherman Act has not met
          with much  favor in  this Court.   Id. at
                                                
          518 (footnote omitted).

          We  think  that  the precedential  value  of  these

holdings  has been  limited by  two subsequent  Supreme Court

cases.   In United States v. Mississippi Valley Co., 364 U.S.
                                                   

520  (1961),  the  Court  held  that   the  activities  of  a

consultant  retained  by the  government  violated a  statute

prohibiting one  retained by the government  from engaging in

activities constituting a conflict of interest.  It held that

this  alone  precluded  the  respondent  from  enforcing  his

consulting  contract with the government.   Id. at  525.  The
                                               

Court noted  that  the conflict-of-interest  statute did  not

"specifically provide for the invalidation of contracts which

are  made  in   violation  of  the   statutory  prohibition."

Nevertheless,  the Court  held that  the  consulting contract

could not be enforced.  It stated:

          Were we to decree the enforcement of such
          a  contract,  we  would be  affirmatively
          sanctioning the type of  infected bargain
          which the statute outlaws and we would be
          depriving  the  public of  the protection
          which Congress has conferred.  

Id. at  563.  In Kaiser  Steel Corp. v. Mullins,  455 U.S. 72
                                               

(1982), the issue was

                             -7-

          whether a coal producer, when  it is sued
          on  its promise  to  contribute to  union
          welfare  funds based on  its purchases of
          coal  from  producers not  under contract
          with the union, is entitled to plead  and
          have  adjudicated  a  defense   that  the
          promise  is  illegal under  the antitrust
          and labor laws.

Id.  at 74.    The  Court held  that  the  coal producer  was
   

entitled to so plead.  At the start of its analysis the Court

stated: 

            There is no  statutory code of  federal
          contract  law,  but  our cases  leave  no
          doubt  that illegal promises  will not be
          enforced  in  cases  controlled   by  the
          federal law.

Id. at 77.   The Court discussed  Kelly v. Kosuga, supra,  at
                                                        

length and  found that Kosuga "contemplated  that the defense
                             

of illegality would be  entertained in a case such  as this."

Id. at 82.  
   

          We hold  that  under the  facts  of this  case  the

contract  between the  parties  was unenforceable  as to  the

remaining two-year term, during  which time McGowan performed

no  services for Arpin.   As the district  court pointed out,

the ICC broker requirement was enacted to protect  the public

from   fraud  and/or   incompetent  motor   carrier  brokers.

Although  there  is no  indication  that  McGowan was  either

fraudulent or  incompetent, his failure to  obtain a broker's

license cannot be ignored or forgiven.  There is no point  in

speculating why McGowan did not obtain a license.  The record

evinces  that he had worked in the field of transportation of

                             -8-

household goods for many years.  It can, therefore, be fairly

inferred  that McGowan  knew  of the  ICC broker's  licensing

requirement.   There was also  record evidence from  which it

could  be found that McGowan, in answer to a direct question,

stated he had  an ICC broker's license.   This was  a knowing

misrepresentation, even  though it  was not made  directly to

Arpin.  Viewing  the facts  in light of  the applicable  case

law,  we find  that  it would  subvert the  public-protection

policy  of  the  statute to  enforce  the  unexpired  and not

performed term of the contract.

                       Broker or Agent
                                      

          The district court held  that McGowan was a broker,

not a household goods agent,  and as such had to  be licensed

by the  ICC.  Appellants argue that this was error.  We agree

with the  district court.  The starting  point is 49 U.S.C.  

10921 which provides:

          Requirement  for certificate,  permit, or
          license
          Except as provided  in this subchapter or
          another   law,   a  person   may  provide
          transportation or service subject  to the
          jurisdiction  of the  Interstate Commerce
          Commission under subchapter  II, III,  or
          IV  of chapter 105 of  this title or be a
          broker for transportation subject  to the
          jurisdiction  of   the  Commission  under
          subchapter  II of  that chapter,  only if
          the   person    holds   the   appropriate
          certificate,  permit,  or license  issued
          under  this  subchapter  authorizing  the
          transportation or service.

A broker is defined as a person,

                             -9-

          other than a motor carrier or employee or
                                                   
          agent  of a  motor  carrier,  that  as  a
                                     
          principal  or  agent  sells,  offers  for
          sale, negotiates for, or holds itself out
          by   solicitation,    advertisement,   or
          otherwise   as   selling,  providing   or
          arranging  for,  transportation by  motor
          carrier for compensation.

49  U.S.C.    10102(1)  (emphasis  added).   The  distinction

between  agent and broker,  inherent in the  statute, is made

explicit in the regulations:

          Broker   means   a   person    who,   for
          compensation,  arranges,   or  offers  to
          arrange,  the transportation  of property
          by  an authorized  motor carrier.   Motor
          carriers, or persons who are employees or
          bona fide  agents  of carriers,  are  not
          brokers  within  the   meaning  of   this
          section    when    they    arrange    the
          transportation  of  shipments which  they
          are  authorized  to  transport and  which
          they  have  accepted  and  legally  bound
          themselves to transport.

          Bona fide agents are persons who are part
          of the  normal  organization of  a  motor
          carrier  and  perform  duties  under  the
          carrier's   directions   pursuant  to   a
          preexisting agreement  which provides for
          a continuing relationship, precluding the
          exercise of discretion on the part of the
          agent in allocating  traffic between  the
          carrier and others.

49 C.F.R.   1045.2 (a) and (b) (1991).

          The  evidence establishes  beyond  much doubt  that

McGowan was a  broker and not an agent.   The first paragraph

of the contract states:

          1.  SERVICES PROVIDED

          A.   The Sales  Corporation shall be
                                              
               a non-exclusive sales agent for
                                              

                             -10-

               the company during the  term of
                          
               this  agreement.   Both parties
               understand  and agree  that the
                                              
               Sales    Corporation    is   an
                                              
               independent   contractor  which
                                       
               provides  for  the Company  the
               sales  service  of  generating,
               soliciting,   and   maintaining
               customers   and  accounts   and
               consulting  with  the  officers
               and employees of the Company to
               expand  the moving  traffic and
               storage   business   for    the
               Company.  (Emphasis added.)

          Although the  language carefully eschews the use of

the word "broker,"  a "non-exclusive sales agent"  who is "an

independent contractor"  can only be  a broker as  defined in

the  regulations.    McGowan  was  not  part  of  the  normal

organization of Arpin, nor was he an employee.  His role  was

to  arrange  for  "the   transportation  of  property  by  an

authorized motor  carrier"  Arpin.   Viewing the  language of

the  contract in the  light of the  regulatory definitions of

broker and agents, McGowan was a broker.

          The trial  record also confirms the  district court

finding that McGowan acted as  a broker.  In addition  to its

contract with  Arpin, McGowan had contracts  with three other

moving companies:  Richard Coriell &amp; Company, its subsidiary,

Central Moving  Systems, Inc., and Pan-American.   During his

testimony, McGowan reaffirmed the following statement made at

his deposition.

          I said I don't  care what concessions you
          get  remember one  thing  these  are  the
          accounts.    These  accounts are  covered

                             -11-

          under contract of McGowan Associates.  If
          I  don't like  Paul Arpin's  service then
          those  accounts aren't going  to be going
          on their trucks.

The  district  court  was  clearly  correct  in  ruling  that

McGowan was  a broker under  the ICC statute  and regulations

and, as such, was required to be licensed by the ICC.3

                          Miscellany
                                    

          McGowan  argues  that the  district court  erred by

basing its decision on testimony not in evidence and refusing

to admit the entire deposition transcript of Michael McGowan.

McGowan quotes the following  statement in the district court

opinion for his claim that the opinion was based on testimony

not in evidence:

          McGowan    exercised     discretion    in
          allocating  business  between  the  three
          haulers that he represented.  Although at
          trial McGowan adamantly denied having any
          such  control  or influence,  McGowan had
          previously boasted that if he didn't like
          the  service  that  Arpin was  providing,
          that  he wouldn't send accounts to Arpin.
          He also had  bragged that moves  would be
          booked  through Arpin only  if he allowed
          them to be.

                    

3  McGowan has devoted over 18  pages of his brief to arguing
that in  1980 Congress  exempted household goods  agents from
regulation by the ICC and that McGowan did not need a license
because he was a household goods agent.  McGowan may be right
about what Congress did in 1980, but since we have found that
McGowan  was  a  broker,  not  an   agent,  the  argument  is
pointless.
  We also reject without discussion McGowan's contention that
Arpin should be estopped from avoiding the contract.

                             -12-

It is  true that the  last sentence from  the excerpt  has no

evidentiary  foundation.  This,  however, was harmless error.

As already  discussed, there was  sufficient evidence without

the "bragging" referenceto establish thatMcGowan was abroker.

          We do  not think that  the district court  erred in

refusing to admit McGowan's  entire deposition into evidence.

The record shows the following colloquy between the attorneys

and  the  court prior  to and  following  its exclusion.   In

reading the excerpt,  it is  important to keep  in mind  that

Galli  represented  Arpin  and  that  McGowan's  attorney was

Gorham.

            MR.  GALLI:   Your  Honor, rather  than
          going through a lot more questions I have
          sections of Mr. McGowan's  deposition I'd
          like to offer into evidence under Rule 32
          as an exhibit.
            THE COURT:  Are they marked?
            MR. GALLI:  They are marked, your Honor.  
          What I've done is  I've taken each of the
          pages    and   I    haven't   obliterated
          everything, I've  just put a  yellow mark
          down the  lines that I  would offer  into
          evidence on each page.   There's a yellow
          mark  on the left showing that lines that
          I'd ask to offer into evidence.
            THE COURT:  Are there any objections?
            MR. N. GORHAM:  I'd just like to know
          what the deposition transcripts are being
          offered for?
            THE COURT:  As evidence.
            MR. N. GORHAM:  I have no objection. 
          I  don't  see the  relevancy of  it, your
          Honor.
            THE COURT:  The relevance of what?  It's
          evidence.  It's treated  just the same as
          the witness's  oral testimony.   How many
          pages have I got to read?
            MR. GALLI:  Your Honor, there are 20,

                             -13-

          25 pages but some of them have only three
          or four lines.
            THE COURT:  Hand it up.
            (DEPOSITION  TRANSCRIPT  HANDED  UP  TO
          COURT)
            MR.  N. GORHAM:   Your  Honor, might  I
          make  a suggestion.  The whole deposition
          should be put in evidence.
            THE COURT:  I am  not going to read the
          whole  deposition.   You're not  going to
          take  my time up with that.  I have a lot
          of other  things to do  tonight which  is
          the only time I get to read these things.
            MR.  B. GORHAM:   Your Honor,  could we
          have a minute to review this?
            THE COURT:  You  should have seen  this
          before.  Did you  give this to them ahead
          of time?
            MR.  GALLI:    I  just  did  this  this
          morning, your Honor.
            THE COURT:  You  don't even give them a
          chance to look at it.
            MR. GALLI:  Well, I'm  sorry.  I did it
          this morning.
            THE COURT:   I kind of  get the feeling
          that it's my fault.
            MR. GALLI:  I'm sorry, your Honor.
            THE  COURT:   You can go  without lunch
          and read it then, okay.  Let's go.   What
          else do you have?

          In  the court's  final remarks,  he told  Gorham to

read  the  marked  portions  of  the  deposition  during  the

luncheon recess.   Implicit in  this admonition was  that the

court would consider admitting any parts that Attorney Gorham

thought  contradicted  the  parts  marked  by  his   opponent

Attorney Galli.  The record is barren of any future reference

to McGowan's  deposition.  Neither the  entire deposition nor

any  portion of it was subsequently offered in evidence.  Nor

was it marked for identification.

          Fed. Rule Civ. Procedure 32(a)(4) provides:

                             -14-

            If only part of a deposition is offered
          in evidence  by a party, an adverse party
          may require the offeror to  introduce any
          other part which ought  in fairness to be
          considered with the part  introduced, and
          any party may introduce any other parts.

                             -15-

          Fed. Rule of Evid. 106 is to the same effect:

          Rule 106.  Remainder of or Related
                Writings or Recorded Statements
            When a writing or recorded statement or
          part thereof is introduced by a party, an
          adverse    party    may    require    the
          introduction  at that  time of  any other
          part  or  any other  writing  or recorded
          statement which  ought in fairness  to be
          considered contemporaneously with it.

          Attorney  Galli offered  marked parts  of McGowan's

deposition in evidence.  The court was ready to receive them.

At  that  point Attorney  Gorham  suggested  that "the  whole

deposition  be put  in  evidence."   The court  rejected this

suggestion;  the judge  then suggested  that Gorham  read the

parts of  the  deposition that  had  been marked  during  the

luncheon recess.   Neither  attorney did anything  further in

regard to the deposition.

          We  do not  think that  a  district court  judge is

obligated to  go through the  entire deposition of  a witness

who  had testified  at the  trial to  determine if  there are

conflicts in  the deposition  testimony or if  the deposition

contradicts the  courtroom testimony  of the witness.   Under

our adversary system,  that is the  work of the lawyers.   It

was not done here and the judge should not be blamed.

                             -16-

          Finally,  McGowan  argues that  the court  erred in

dismissing  his counterclaim for  interference by  Arpin with

his 1987 contract with Richard Coriell &amp; Company.4

          We  affirm for  the reasons  given by  the district

court in ruling from the bench:

            The evidence in the  case is that there

          was an agreement entered into on December
          23rd  of  1987  by  and  between  McGowan
          Associates    Incorporated,   hereinafter
          referred  to as the  sales corporation, a
          duly  organized  New  Jersey  corporation
          with  a place of  business located  at 20
          Stonehouse Road,  Millington, New Jersey,
          and    Richard   Coriell    and   Company
          Incorporated, a duly organized New Jersey
          corporation, with a place of  business at
          the same address.  The contention is made
          in  connection   with  the  counterclaim,
          among other things, that the Plaintiff in
          this action  intentionally and unlawfully
          interfered     with     a     contractual
          relationship   existing    between   UTS,
          McGowan  and  Coriell.   The  evidence is
          that  the  agreement,  as  indicated,  at
          least insofar as  McGowan's interest  are
          concerned, was between McGowan Associates
          Incorporated and Coriell.   Since McGowan
          Associates  Incorporated does  not appear
          to be a party to this action it seems  to
          me that  under no circumstances  could it
          recover, under no circumstances could Mr.
          McGowan  recover, that the only party who
          could recover for interference  with this
          contract are the parties to the contract,
          and the party to the contract is  McGowan
          Associates  Incorporated  which is  not a
          party to this litigation.  

                    

4 The dismissal of  the other two counts of  the counterclaim
have not been appealed.

                             -17-

          We have examined  the counterclaim  carefully.   It

specifically    names    as    counter-claimants    Universal

Transportation  Services, Inc.  and Michael  J. McGowan.   It

does state that Michael McGowan is doing business as  McGowan

Associates,  Inc.   Individuals, however,  do not  usually do

business  in  the name  of an  incorporated  entity.   As the

district court pointed out,  the contract which was allegedly

interfered with by Arpin was between McGowan Associates, Inc.

and  Coriell;  it  was  not  between  McGowan  d/b/a  McGowan

Associates  and  Coriell.   There  can  be  no question  that

McGowan Associates, Inc. is not a party to this litigation.  

          McGowan argues, in effect, that we should disregard

the separate corporate entity and treat him as the real party

in  interest.   We do  not think  that we  should pierce  the

corporate veil at the behest of the individual  who fashioned

it  so as  to  further the  individual's personal  interests.

That would make a nullity of the purpose and use of corporate

structures.  Nor can  we ignore pleadings drawn by  those who

knew or should  have known of  the specific corporate  entity

that  executed the  contract  in  issue.    To  do  so  would

constitute a  judicial amendment  to the pleadings  after the

trial was over.

          The judgement of the district court is affirmed.
                                                          

          Costs on appeal awarded to Arpin.  
          Costs on appeal awarded to Arpin.
                                           

                             -18-
