*1 court The district case remanded
be reversed and the proceedings this
further opinion. consistent with FINANCIAL COR-
TRI-CONTINENTAL PORATION, Appellant, ENTERPRISES, MARINE
TROPICAL al., INC., Appellees. et
No. 17543. Appeals
United States Court
Fifth Circuit.
April though miller plan;” paid.” “beneficiaries wise Even the trust had taxpayer cannot comply therefore, terminated, “beneficiaries under tho limitation and the plan” practical requirements, can, matter, be iden- improper. deduction in idle year tified taxable in which the argument per- is erroneous. carry-over deduction claimed. By centage taking limitation on the carry-over de- cent of per the amount of com- (in compensation is based duction pensation its most simple form, (i. wages) paid” e., paid apart “otherwise from a paid to the identified employees plan) during “beneficiaries under year taxable in question, The words plan.” “beneficiaries maximum deduction is arrived at arith- merely are plan” identify the em- metically. This is all the statute means. compensation to whom is “other- ployees *2 City, Connelly, Albert R. New York Fla., Milam, Jacksonville,
Arthur W. Pepper, (John Miami, Claude D. Fla. Hunt, Calhoun, Cronson, F. Donald John Jr., Cravath, Moore, York Swaine & New City, Milam, LeMaistre, Ramsay Mar-& tin, Jacksonville, Fla., counsel), for of appellant. Ball, Carter, William Alonzo John W. Jacksonville, (Adair, Ulmer, Mur- Fla. chison, Fla., Ashby, Jacksonville, Kent & counsel), for Owens-Illinois Glass Co. Fla., Wahl, Jacksonville, Harold B. Fort, Washington, C., J. Franklin D. Patton, Scott, Marshall S. Stuart W. Miami, (Loftin Wahl, Fla. & Jackson- ville, Fort, Washing- Fla., Kominers & ton, C., counsel), D. India for West Steamship Co., Inc., & Fruit others. Judge, HUTCHESON, Before Chief Judg- JONES, and TUTTLE and Circuit es.
HUTCHESON,
Judge.
Chief
Appealing
proceeding
entered in a
foreclose
mortgage
vessel,
Queen,
on a
the Abaco
challenging
plaintiff-appellant,
as erro-
findings
neous the
conclusions of
judge,
the district
the restrictive
thereof,
pertinent
any
here,
are:
combination
or
in
service
As
these
ports
places
“Impleaded
or
trade between said
or
defendant West India Fruit
Steamship
chiefly
transportation
Co., Inc.,
engaged
passengers,
or
ferry operations
cargo
cars,
trailers,
containers,
car
between the
rail
United
Cuba,
sold the vessel now
automobile or tracks. The covenant
States
also
provided
Queen’
known as
‘Abaco
should
National
it be violated Na-
Corporation
(now
(now
tional Container
Container
intervener
Owens-Illinois
Co.)
Co.)
January,
Glass
Glass
would
liable to
India
Owens-Illinois
$1,250,000.00.
bill of sale
1956. The
contained a re-
the sum of
covenant
“National Container
later
resold the
operated
Tropical
years,
would not be
to defendant
En-
between
Marine
places
Inc.,
ports
Georgia,
terprises,
or
the States of
with the same restric-
Florida, Mississippi, Alabama, and
Plaintiff
Lou-
tive
convenant.
Tri-Conti-
any
isiana,
them,
Corporation
one or
or
more of
nental
Financial
financed
ports
places
Cuba,
knowledge
or
on the Island
the transaction
ferry,
ferry,
ferry,
train
car
ferry,
track
covenant
in the bill of sale and took a
passenger
any
ferry,
(which mortgage
auto
on the vessel
Queen
Tropical
mortgagor,
Ma-
were the
of sale to
bill
Enterprises,
(T.M.E.),
rine
T.M.T.
against
specified
Inc.
trade
use
Ferry Co.,
T.M.E.,
parent
Trailer
force
and of
valid
guarantor
and insolvent
mortgagee
*3
indebtedness,
Corp.
sale,
and
and
one Gibbs
a reversal
seeks
foreclosure
(Gibbs),
junior
and re-
lienor.
a reversal
or at least
rendition
giving
effect to
mand
September 4, 1957, appellee
On
Owens
findings
conclusions.
and
these
intervened,
(Owens)
Corp.
Illinois Glass
alleging:
judg-
April 18, 1956,
had
that on
it
resulted
The action which
Queen
begun July
purchased
India
from West
ment under attack
Steamship
(West India),
Tri-Fi,
1957, by
Fruit and
Co.
plaintiff-appellant,
covenant;2
subject
ordinary proceeding
that
a restrictive
mortgagee,
as an
Original
20, 1956,
mortgage.
had sold the
on November
it
foreclose its
although
foreclosed)
sought
and
5
191 F.
Palmer v. Chamberlin
to be
is here
mortgage
[27
416].
to the
2d 532
no reference
A.L.R.2d
made
thereof,
“On consideration
“Considered,
it is
restriction.
adjudged
brings
that
to fore-
ordered and
this suit
now
“Plaintiff
Tropi-
mortgage,
be and
the motion for
the defendant
close
interposes
hereby granted
Enterprises,
same is
since there
Marine
Inc.
cal
genuine
any
enti-
no
issue as to
material
is
is
defense thereto and
no
tled to
subject
fact, provided
that
foreclosure
decree of
superior
Corporation lien,
only
question
(a) whether the
to the Gibbs
to the
subject
subject
re-
and that
the sale be
to the re
sold
vessel should be
* »
(b)
[164
and
strictive covenant aforesaid.”
F.
“ *
**
affidavit,
Supp.
India,
2.]
West
never have sold
it would
makes it clear
provided
the vessel have been
inter alia:
the vessel could
“ * * *
part
competition with
India.
as a
of the consid-
used in
West
inducing
that the restric
eration
enter into
The
tive covenant is reasonable
is convinced
seller to
Court
time,
agreement
ter
for the
and transfer
sale
any
binding
Queen] pursuant
ritory
extent,
on
[Abaco
and
of the vessel
and
period
purchaser
contract,
buyer,
who has notice
to this
for a
years
delivery
from
A decision of
United States
of ten
of the
the date of
thereof.
operate
Supremo
upholding
an almost iden
will not
said
Court
ves-
Oregon
permit
sel,
restriction is
Steam Nav.
or canse or
said vessel to
tical
be
operated,
Winsor, 20
625 agreem ancillary governing in full consideration his stock rules such upon good-will, express ents,6 in trade and limited as it is again every respect is, scope, condition that entering refrain time important in he time, terri business for a limited here, reasonable time, tory territory, extent, within further extent a certain and of no India; having immediately, pocketed necessary protect then than is agreement, uni the fruits deliber- the authorities are almost and that ignores ately wilfully vio form does not the con- that such a restriction trolling thereof, courts late the anti-trust laws. It will serve condition legal certainly purpose, therefore, useful to discuss should not hunt for uphold him such moral these them are cited in excuse cases. Some of McMurtry judge, delinquence.’ v. conclusions of the district Barrows Mfg. supra. 1, Co., 432, 449, note briefs 54 131 Others cited Colo. P. Chicago Sugar Sug 430, 436.” Co. v. American are Refining 1, Co., Cir., ar 7 176 F.2d certi Ancillary restrictions of this kind 486, orari 338 70 S.Ct. denied U.S. have, therefore, ap- such as facts 584; 94 L.Ed. P.B.S. & P. Cincinnati pear here, uniformly been sustained as Bay, Packet Co. v. 26 S.Ct. valid. 428; Perry, 50 v. 10 L.Ed. Hedrick appel- come then to the We issue Cir., 802; Realty Corp. 102 F.2d Janet directly joined and de- lant admits was v. Hoffman’s Fla. So.2d say below, we cided 114; Kentucky Indi Nat. Gas appellant early makes too much of think Corp., Cir., ana Gas & C. and over-technical common law consider- Co., Schwartz v. Van Der Plate & distinguishing between ations covenants N.J.Eq. 132, 27 A.2d United States respect with to chattels and those Addyston Pipe Co., Steel equitable land, too con- little F. 96, affirmed 175 U.S. S.Ct. dealing both. As siderations 136, Restatement, Contracts, 44 L.Ed. out, points brief Owens 516; Corbin, Contracts Sec. 1389. question stated the so as to make its has following quotations from Florida *7 right protection the and West India’s to general typical of cases are the attitude against equity court of breach of the of a question: American courts on this depend upon whether the re- covenant “Contracts entered into between covenant involved “runs with having parties, objectives as their in the sense that certain the boat” cove- competitor the removal of a rival to real estate have nants related been regarded business, a are not to be courts to the “run with considered trade, as contracts in restraint of the land.” they because do not close the field position of The Owens West India competition only par- affect the but right protection to the is that their agreement.” ties to the Real- Janet equity depends court not hands a ty Corp. Inc., v. Hoffman’s 17 So.2d upon whether the covenant can be con- 116. “running with the boat” as but sidered In the case of West Shore Res- recent right justice principles upon rec- Turk, 123, taurant 101 So.2d equity ognized by courts of the under 129, Supreme quot- the Court of Florida personal mere of which a influence cove- approvingly ed a from Colorado decision restricting property use of nant as follows: running land” with the or “with “not “ equity enforced in is will be ‘Where one so lost a boat” to sense obligation taking against purchasers accept moral as notice to to Corp., Juices, Can, Inventions v. Trico Prods. Bruce’s Inc. v. American ductive Cir., 678; 224 F.2d Automatic Radio 67 S.Ct. 91 L.Ed. Research, 1219; Mfg. Cir., Schine, v. Hazeltine 176 F. Bookout v. Chain The atres, 292; Pro- 2d 799. pose upon Owens, arranged property that the use of the the extent whom it mortgage, should be to in violation of the covenant of the make the burden by injunction appro- heavy breach, prevented or other loss which will follow its remedy. taking support equity prevent priate equitable appellant from they many plainly inequitable, collected this cite the cases if uncon- not Hewitt, by holding estopped 191 Va. annotation to Oliver v. scionable course it equity. Vet- 23 A.L.R.2d or otherwise S.E.2d bound it Brown, Fla., zel v. So.2d obtaining Under the circumstances “Injunctions”, p. C.J. great here, put deal for- more should be stated: where is claim, plaintiff, support ward of its dealing covenant with rid the “Where restrictive property, dry real use of with it of the than as may personal, valid, be en- dust and is technical common law distinc- by injunction only realty. as tion forced between chattels and The against obligation distinction, proper not to one under has its force pur- situations, place Since violate covenant. some has or force gets subject attempt title here since
chaser with notice
not
did
may
enjoined
anything
anything
to the restriction he
be
add
take
from
using
property in
violation
the
merely
covenant but
force of the
applied
also 43
of the restriction.”7
See
declared and
facts
Injunctions
controlling equitable
prin-
C.J.S.
case
§
ciples.
Finally, they
citing
insist,
cases
if,
appellant
support,
seems to ar-
The
is affirmed.
gue,
question
Judge (dissenting).
TUTTLE, Circuit
mortgagee
covenant
I
dissent from that
be With deference
at a sale
it should
opinion
upon
part
that holds
whether
covenant
determined
subject
regarded
merely
appellant’s
per-
is
should be
was not
appurtenant
to which it
but as
sonal one
one
ample
places
running
party.
decision
The
a
squarely
Court
with the
there
upon
authority
support
that it would
a reasoned view
wrong.
“inequitable,
not unconscionable”
if
then
would be
be
even
mortgagee
per-
be
of the vessel to
however,
case,
to be
sell it at foreclosure sale freed
mitted to
ground.
It
rather
on that
determined
restrictive covenants.
of all
by whether, under cir
determined
do,
here,
Believing,
I
that there is a ra-
disclosed
of the kind
cumstances
*8
continuing mortgagee, having
basis of
itself fur
tional
where the
money
difference between the
to make the trade
traditional
with
nished the
knowledge
permits
principle of law which
the bur-
full
undertaking
now
dening
beneficiary
deprive
with
of real estate
restrictive
sale
the same time to im-
favors the
and at
covenants and
its benefits
478;
Moxhay,
Injunc
Fla.,
Tulk
same effect see 43 C.J.S.
76 So.2d
v.
7. To the
774,
page
Eng.Rep.
1143;
41
579 and 28 Am.
2 Phil.Ch.
§
tions
87
Mercury
“Injunctions”
seq.
Capitol
Records,
v.
2
89 et
Records
Jur.
103,
104,
Cir.,
nants, more I think it no accords good permit equity and conscience to closing Owens, owner, at the to sit price accept purchase
table and mortgage executed Tri-Continental on a by requiring in- without
clusion of the restriction in the that it is
and thereafter ing insist bind- Tri- than for Tri-Continental permitted
Continental to be to advance money paid which is to Owens mortgage which the re- is silent striction, it, which is known to mortgaged later foreclose and sell the
property free of restriction. short, equity I think no such to warrant the fashion- established ing of a rule law not heretofore shown applicable
to be the sale chattels.
I would reverse and remand for a dis-
missal of the intervention. COMPANY,
DOLE REFRIGERATING Appellant
AMERIO CONTACT PLATE FREEZ- ERS, INC.
No. 12770. Appeals
United States Court of Third Circuit.
Argued March April
Decided Parker, Chicago, Norman S. (Arthur Boettcher, H. James McCon- C.
non, Philadelphia, Pa., Carter, Parker & Chicago, 111., brief), appellant. on the City Chandler, York New John P. (Zachary Wobensmith, II, T. Philadel- Pa., Dughi, phia, Louis J. Westfield N. brief), appellee. J., on the GOODRICH, Before KALODNER and Judges. HASTIE, Circuit