Larson v. General Motors Corporation

Weekly following: based is adjustment appellee ignored cannot be as (a) page supplement ap A 24 carrying contends. The to words were intended proximately 54 of advertising.” columns have an effect. The income advertis- twenty-four Now pages 168 columns. ing expected by parties, in their (Par. There 3) must abe minimum of 84 negotiation, greatly to reduce the cost of columns editorial matter. We here are told supplement to Houston. American that of the remaining approxi 84 columns pointed pro- out Par. 8 to Houston as its mately advertising, 54 will be the other 30 advertising. tection little too being columns al filled with additional editori parties said, as differ what was to as needed. A of 54 matter ratio columns quoted as the just to what words mean. advertising to matter, to 168 editorial or just given 32% We we have their believe 68%, is thus indicated. But this Para effect. graph description is not supplement therefore since We conclude that which must be by fulfilled each to issue every supplement issue contained the rendgr tenderable, the issue like the mini editorial matter minimum of columns mum of 84 columns of editorial matter is. required by advertising, Par. some Paragraph 8 is concerned with price, supplement no issue of the could be alto and its per variation from thousand $13.05 rejected, gether and none was. Since the because of the five variable elements it papers were be delivered to Houston to size, lists. One is the variable 24 pages, Chicago, charge can f. o. b. Houston may multiples be varied in of 2 pages, freight American. is to Houston entitled 2 pages each causing change $1,015 advertising income collected on per thousand. Other variables are the cost to a issues. Houston is entitled fair paper, ink and labor. The quantity of price year for abatement of each failure is advertising and here mentioned for the first carry approximately proportion time. It is mentioned as a basis price basis advertising named in the price, evidently price is to affect contract, amount be fixed along things with the other set forth in accordingly trial court. is departure Par. 8. Thus a from the ad remanded for reversed and fur vertising ratio is not ground made a for re inconsistent with proceedings ther jecting issue, an filling the descrip opinion. tion thing delivered, but, it price, enters into basis HUTCHESON, denied; Cir- Rehearing price. affect the But the contract does not 135 F.2d 733. dissenting. See Judge cuit say how much it shall affect it. Neverthe less there would partial arise a failure of consideration which the adjust, court can measured the pecuniary loss occasioned by the failure. Still a failure to secure the exact ratio of advertising is not to MOTORS al. v. LARSON et GENERAL count, because of “ap the use the word CORPORATION. “about”,

proximately”. “in means, That word 159. neighborhood variation, If of”. Appeals, Circuit. Circuit Court of Second averaged period considered, over the is sub March 1943. stantial, causing Houston unreasonable advertising loss in the income due it under Rehearing March Denied contract, may recoup Houston loss. 1, 1943. June Denied ofWrit Certiorari issues ratio in Excess where the _. L.Ed. exceeded also be S.Ct. ratio was considered See 63 average.2 As in all making prob damages, exact where no lems of measure there is provided, room is by the fact finder. estimate “approximately the mention of We think advertising” in the cost basis 54 columns 2 Maes, during year met, who contracted Hous when it could Mr. not he supposed ton, apply “It testifies: was not over understand a certain you year, period, ratio was to he maintained whatever want every issue, because there are times make it” Cowen, City, Murray of New York appellants. Drury Cooper Drury Coop- W. City, er, appel- Jr., both of New York

lee. HAND, CHASE, L. FRANK, Judges. Circuit HAND, Judge. tioned. L. Circuit At the conclusion of the trial he found aas fact the defendant had two manufactured and sold the cars One, judgments: of the defend favor infringe before the date invention to their first cause a counterclaim ant by plaintiffs claimed the and that this in- action, invalid Patent of declared which patent. 1941, validated August 12, the On 1934, 1,983,983, 11, December issued on he judgment: entered a (1) dismissing the improvement to mo plaintiffs to tor for an the first cause of action upon on the merits cars, enjoined from threaten and them plaintiffs’ the stipulation that the defend- in ing the customers with defendant or its ant had on the patent; not infringed up- the (2) other, fringement; dismissing their the declaring counterclaim pat- that the damages of second cause the imparted action invalid, ent was enjoining plain- and the “idea,” appropriation of an defendant’s tiffs from threatening anyone to sue by plaintiffs in confi to it the infringer who should sell or use cars 5, complaint, May dence. filed on The bought defendant, the F.Supp. 40 1939, of that alleged as a first cause action plaintiffs appealed The from this infringed plaintiffs’ the the defendant had 8, on 1941, November have brought but not patent damages injunc aslced but and no trial; before the upon us the evidence taken the 1939, tion; answer, 23, May filed the on only record consists findings and infringement alleged denied the that and of judge conclusions the and certain inter- patent invalid; pleaded the was also the locutory proceedings necessary not to state. just spo counterclaim of which have Upon appeal they only: wish to raise ken, plaintiffs reply the to which filed on (1) whether any the district court retained 15, October 1939. On the June jurisdiction to patent declare the invalid plaintiffs by jury, demanded a trial but that under the counterclaim, after their con- answer, days was more ten after and than sent to first er upon the dismissal the merits of the late, upon too both causes of action in the action; did, (2) cause of if it wheth- complaint, 38(b), Rule Rules Federal of they were not jury to a entitled trial. Procedure, Civil 28 following U.S.C.A. sec 12, 1941, August left tion 723c. was also late to demand too the disposed second cause action un- jury counterclaim, on the trial of the be of, (in and August days twenty passed cause than had more spite of yet fact had the it, ); replying without 12(a to Rule counterclaim), been entered on the de- the plaintiffs default, were therefore in Rule summary judgment, fendant moved for dis- 55(a) and (d). calendar commission missing the second cause action on the placed er therefore three cases on the ground findings that the of fact were an calendar; 30, 1939, non-jury but on June involved, estoppel as to all material issues the court plaintiffs district the relieved nothing remained for trial. On their the waiver to both causes of action 30, 1941, December district court so complaint and set down the trial of held, and dismissed the second cause of upon calendar, them jury the" retaining second now before however the trial counterclaim appeal. us on appeal, F.R.D. 294. That non-jury calendar. show, as we shall succeed if the must interlocutory proceedings After not nec- judge should have undertaken to de- out, essary to set cause on for came clare whether or patent not the was valid. judge trial on jury, 1940 before a June plaintiffs the opening con- at consented to judgment upon sented that should the merits dismissal of first action on rendered on the the merits there be no can action, only first cause the the jurisdiction had formal court under the ground that the defendant had not in- pass upon validity Constitution to fringed patent. They then patent counterclaim, moved although the counterclaim should be so, dismissed be- necessary have been do entry of a judgment dismissing cause the pendency in view of the first cause any the first cause of ended “controversy” exist- of action. The then exist controversy ing over the extended, parties only and de- between prived jurisdiction the court of over the infringement to the defendant’s pat counterclaim. This ent, motion validity; over- its but to ruled, proceeded try the issues that it valid and were obliged it, raised the counterclaim without if jury, they to maintain were to succeed. just with the in accordance order they men- consented When to the dismissal action, logical propriety deciding situation deed a in first cause of the first shadowy any jurisdiction con whether it has all and changed; and most patent in deciding whether exercise validity of it. troversy over act, did, But if it event refuse to must remained. Whether thereafter parties it can already exist make no difference to the not, put an did end or not; jurisdiction whether it has sense formal constitutional ing jurisdiction, precisely indeed refusal them in act leaves There need not decide. we many position though jurisdiction pow same it had no holding cases attached, appear, er act. As court, not lost once federal patent had ceased to have sub changes would have defeat by later importance parties stantial it, as soon they occurred before suit ed if plaintiffs as the judgment consented to confined was filed. This not been to has merits, the the citizenship, and in exercise diversity dur the cases where court of its discretion should parties have refused to ad progress the ing the of the action state, judicate so much although the counterclaim as become citizens of same called for a invalidity declaration as to the on which it was that was first occasion patent. of the Morgan’s Morgan, 2 announced. Heirs v. 290, Supreme Wheat. 4 L.Ed. 242. The provides It is true that Rule 57 say nothing Court —to of inferior federal that “the adequate existence of another applied courts —has doctrine in a num remedy preclude judgment does a not for situations, ber of of which those different declaratory relief ap in cases where it is margin cited in the are no means all.* ; propriate” that has but been construed not Thus, that, it argued though could even be mean to that the action lie whenever put any an end consent to there is a controversy, pending regardless controversy pat as to the of the need for it. Whether to entertain ent, put did not an end to court’s con the action rests in the discretion jurisdiction. hand, stitutional On the other judge, whose exercise of it is reviewable many Supreme in cases the Court has as in other cases. This had been several appeals, either dismissed reversed —or times decided circuit courts judgments on the merits and directed the before both the majority minority lower court to dismiss the action-—because Supreme Court Brillhart v. Excess changed circumstances have so after Company, 491, Insurance 316 62 U.S. L.Ed. judgment <has been entered that no 1173, 1620, 86 L.Ed. held the action that controversy has is left case be lay only in cases where it could be of some very recently come moot. We have con practical parties. convenience to the In length sidered this Cover v. judgment case at bar dismissing Cir., 541, Schwartz, 2 133 F.2d where action put first cause of the merits controversy arose over also any controversy as those cars to to end judge where the had dismissed the com plaintiffs infringe, to which the plaint only invalidity, though for he had any as to others which the defendant opinion also in his said that the defendant they making which did so al was infringe. agreed did not We judgment lege. was It unlike might grounds have decided on both declaratory bar a held not = appeal upon we dismissed argument Co., Cir., Mfg. 2 v. Ross Heater & Leach plaintiff before us when the conceded that 88, for was not the mer 104 F.2d infringe, the defendant did not because a second and did not bar action. More its over, jurisdiction. we held that that ended our judgment bar of the was avail why unnecessary it is to de reason customers, to the defendant’s as well able cide whether the court lost constitutional defendant, they regarded as to that, jurisdiction in the case at bar is even privies judgment. Norton v. jurisdiction, if retained the circumstanc Co., Fruit-Packing Cir., 9 83 F. San Jose es were such as made exercise of it 512; General Chemical v. Co. Standard improper. Works, In Cir., situations where a court has 4 F.2d P. & A. 101 Wholesale plaintiffs 178, Finally, discretion to refuse to act there is in had not * Kirby Clarke, 1, 755; American Soda Dunn 8 Pet. 8 L.Ed. v. Fountain v. 845; 164, Co., 619, Mathewson, 141, 12 24 48 L.Ed. Clarke Pet. 194 S.Ct. v. U.S. Indemnity 1041; Martin, 911; 9 Paul Co. v. Red Cab L.Ed. Kanouse 15 St. v. v. Cus- 660; 283, 293-296, Company, How. 58 L.Ed. 303 U.S. Green 471; tard, Cooke 82 L.Ed. 845. 23 How. L.Ed. S.Ct. v. States, 17 L.Ed. United Wall. '4M cation true, threatened suits “idea.” It still the defendant with remains sure, to be designs might future of cars which it dismissing make; they true, might they second cause of do so it is hut right when not, entered, it was and there for at was no to sus- judg- reason time the pect they would, ment in the did the defendant counterclaim contained contemplate any change design, invalidity declaration of ings to which the so find- appears. far as It is were quite might true that the essential. therefore be judgment might complete argued only relief modify we should defendant, plaintiffs for the might sue on the counterclaim affirm its customers though judgment upon even the action, the customers the second cause of had a good injunction defense. for- with leave to the apply An bidding do was so there- district court judg- to vacate that proper; fore but a declaration of. inva- ment after the on the counter- lidity necessary purpose. was not for that claim had been modified. But it is unnec- essary put parties to trouble But that is not all. Not did merely formally practice per- to make the the defendant have no in such interest anticipate fect. We shall the intermediate except declaration purely speculative steps, and reverse the on the sec- one that in the might future it so change ond cause of the same time that the design of its cars modify judgment on counter- would sue a the again; but the had claim. recognizable interest that the validity of judgment, The dismissing the first patent should be considered. We granting of action relief under do mean merely their interest in avoid by striking counterclaim modified out the is patent, cloud their inter validity pat- of declaration to the est in the outcome of second cause of ent; and is otherwise affirmed. They which remained undecided. The dismissing the second privilege trying jury, of ato cause of action is reversed. validity and while it is true that the of plaintiffs. Costs to the patent would not as such a factor in be trial, they their success in apprehend' might well Rehearing. On Petition for turned out to be true later —-as passing upon —that in validity the issue of PER CURIAM. in the counterclaim the court would find petition rehearing for is based facts that would be fatal to the second v. our affirmance of Knaust Bros. Inc. cause of action. That would indeed be Cir., Goldschlag, 2 119 F.2d on denying reason for remedy to the opinion below, D.C., F.Supp. 188. When defendant, if it had had more than the ten appellant’s that case was in this court the ebrous interest in a declaration of inva following pas (page 2) brief contained lidity mentioned; which we have but when appeal from sages : “Plaintiff does not was of the exercise of discre insofar as it relates to tion, the conflicting interests should be 2,097,- (No. patent suit higher numbered balanced; substantial interest 2,097,766 patent which 766).” was the No. of the defendant that we can see is that acknowledged the de plaintiff a declaration made under the counterclaim va infringe, but on whose fendant did not might enable it to avoid trial of sec nevertheless lidity judge had the district jury, ond cause of action to a did. raised on issue passed. Again: “The sole That interest was of course one which the claims of appeal whether the this properly court could recognize. in 2,034,678 involved patent No. Knaust vention.” No. other 2,034,678 was the For these reasons we conclude con plaintiff i.e., which the patent: that the any should have refused to make in with charge the defendant tinued to declaration of the (page brief appellee’s in the fringing. Also patent, part and that that of following: “Since 2) appeared together on the counterclaim sup with the obviously con now brief porting appellant findings should be deleted. The 2,097,766 in invalidity of findings said, were, cedes the substance as we have its notice form of the view defendant had made all the should of the 1250) (II, infringe cars earlier comment. further without affirmed date application

than ap- therefore, sole issue leaves, the date supposed communi- concerned, plaintiff is peal, insofar as the 2,034,678 patent No. whether the claims fore- involve In view invention.” argu- going, unnecessary labor it is point pass upon ment that we did not Okl., Helton, Frederick, Robert appeal. involved in this Old., Grandfield, Kelly, and Arthur A. Petition denied. appellants. for Roe, Frederick, Okl., R. E. Cun- G. Paso, Tex.,

ningham, and Harrison of El Old., appellees. Roe, Frederick, BRATTON, HUXMAN, MURRAH, Judges. Circuit HUXMAN, Judge. Circuit McCLARY v. al. McCLARY et McClary January Wm. died testate No. 2611. provision will in 1942. of his con- troversy give, reads as “I here follows: Appeals, Tenth Circuit. Circuit Court estate, real, bequeath my devise and March every property, or mixed and of personal kind, nature, description, and and where- situated, I soever die seized brother-in-law, entitled, W. M. Holloway, Paso, Texas, trust, El brother, of my the use and benefit M. A. Oklahoma, McClary, my Chattanooga, brother-in-law, Holloway, said M. Paso, Texas, my El and each of nieces nephews living, who at death, my equally, time of share and share alike, simple, absolutely, in fee and for- Trustee, As give, ever. I W. M. Hol- sole, power loway complete, and absolute control, sell, collect, hold, manage, proceeds of, dispose and to invest my estate, being my said intention to time ample col- the said Trustee allow and to realize the full the said estate lect of the same so that value sacrificed; said trust is to shall be benefit the use and continue for majority a numerical devisees until said shall, writing, signify them their consent among shall be divided that the estate directed, equal shares above power full said Trustee shall have property partition and distribute proceeds income or the or the property be in his hands that shall time of the said termina- Trustee tion.” McClary, Appellant, A. brother of deceased, this instituted action as an recovery heir, seeking one-fourth estate. In action he seeks to an- will set aside and have the on the nul provision above violates ground that against perpetuities and is there- rule Diversity citizenship void. fore

Case Details

Case Name: Larson v. General Motors Corporation

Court Name: Court of Appeals for the Second Circuit

Date Published: Mar 17, 1943

Citation: 134 F.2d 450

Docket Number: 159

Court Abbreviation: 2d Cir.