Paramount Pest Control Service v. Brewer

• Decision Date: 01 December 1949
• Docket Number: No. 12170.,12170.
• Citation: 177 F.2d 564
• Parties: PARAMOUNT PEST CONTROL SERVICE v. BREWER et al.
• Court: U.S. Court of Appeals — Ninth Circuit

177 F.2d 564 (1949)

PARAMOUNT PEST CONTROL SERVICE v. BREWER et al.

No. 12170.

United States Court of Appeals Ninth Circuit.

October 27, 1949.

Rehearing Denied December 1, 1949.

Kenneth C. Gillis, Oakland, Cal., Robert R. Rankin, Portland, Or., for appellant.

Plowden Stott, Collier & Bernard, Portland, Or., for appellees.

Before DENMAN, Chief Judge, and BONE, Circuit Judge, and McCORMICK, District Judge.

McCORMICK, District Judge.

This appeal from a judgment of the District Court of Oregon is again before the court under an amplified record entered in the trial court pursuant to the remand issued herein November 16, 1948. See Paramount Pest Control Service v. Brewer et al., 9 Cir., 170 F.2d 553. No new or additional evidence to that shown in the transcript of record in the former appeal was introduced or taken in the court below. The cause was again considered by the learned trial judge who has presided in the action throughout its course in the District Court. Additional essential specific findings of fact and conclusions of law have been made by him and duly entered in the court below, and a final judgment denying an injunction against defendants and further adjudging "that the plaintiff take nothing against the defendants or either or any of them, and that the complaint be dismissed without costs to any party" was entered in the District Court on December 27, 1948. It is from such judgment that this appeal is taken by Paramount Pest Control Service, a corporation, the plaintiff in the trial court, which for brevity is also referred to herein as Paramount.

Based upon a stipulation of the attorneys for the respective parties hereto, an order has been entered herein that the transcript of record in the former appeal and all exhibits transmitted from the District Court to this court in the former appeal, as well as briefs of both parties, pleadings and orders concerning the record be and the same are to be considered as filed of record on this appeal and constitute part of the records upon which the present appeal is based and that reference may be had herein to any of the records in the previous appeal, and the reprinting of the record in the earlier appeal is not required in this appeal.

It was further ordered by this court that the parties hereto have the privilege of filing additional briefs. Accordingly, appellant has considerably enlarged its briefs and appellees have also filed an additional brief on this appeal. We have considered the entire record as extended beyond that before us on the former appeal.

Preliminarily because of certain observations of the experienced trial judge upon our remand, we deem it appropriate to state that the cause was remanded to the District Court on the former appeal because the findings of that court were not clear and specific as to the basic issues in the charges of conspiracy made by Paramount against the defendants (appellees here), and also because the findings as to alleged overt acts and damages by defendants in furtherance of the conspiracy charged in the court below were also inadequate on the appeal. There was also a substantial deficiency in the findings before us in the earlier appeal as to the employment relationship of Raymond Rightmire with Paramount under the record. These insufficiencies have all been rectified.

The law is clear that a trial judge is not always required to make findings upon all factual issues that are tendered or that arise in a case. Kustoff v. Chaplin, 9 Cir., 1941, 120 F.2d 551. Nevertheless, where, as was the situation before us in the first appeal, the question of conspiracy is the fundamental nexus of the elements of the case before the Appellate Court and the record shows that there has been an omission in the trial court to find indispensable facts upon which the controversy in law depends, the Court of Appeals will remand the case to have the essential findings supplied by the trial Judge. Hunter v. Scruggs Drug Store, Inc., 4 Cir., 1940, 113 F.2d 971; See, also, Gillis v. Gillette, 9 Cir., 177 F.2d 7.

Epitomizing the case now before us, it appears that Paramount, a California corporation, licensed to carry on a pest control business in the State of Oregon, brought this action in the District Court against Charles P. Brewer, individually and doing business as Brewer's Pest Control, Rosalie Brewer, his wife, Raymond Rightmire and Earl Merriott, as defendants therein. One Carl Duncan was also made a party defendant in the court below. He was never served with process and did not appear in the action, which was ordered dismissed as to him.

Primarily an injunction was sought by the plaintiff to restrain alleged conspiratorial conduct by defendants in relation to the termination of an employment contract called "Sales Agent's Agreement" between Brewer and Paramount pertaining to services of Brewer as agent of Paramount in the entire State of Oregon. This agreement, dated July 1, 1946, in paragraph 5 provided that Brewer as agent of Paramount should pay to Paramount 20% of the gross business done by him during the life of the agreement which was stated to be ten years from its date.

After a brief period of operating under the agreement it was mutually determined that the compensation provisions of paragraph 5 were unsatisfactory, and it was then duly agreed that in lieu of the 20% payment to Paramount the contract be modified so that the net profits of the agent's business be divided...