General Excavator Co. v. Keystone Driller Co.

• Decision Date: 09 February 1933
• Docket Number: No. 6065-6068.,6065-6068.
• Citation: 64 F.2d 39,17 USPQ 517
• Parties: GENERAL EXCAVATOR CO. v. KEYSTONE DRILLER CO. KEYSTONE DRILLER CO. v. GENERAL EXCAVATOR CO. OSGOOD CO. v. KEYSTONE DRILLER CO. KEYSTONE DRILLER CO. v. OSGOOD CO.
• Court: U.S. Court of Appeals — Sixth Circuit

17 USPQ 517, 64 F.2d 39 (1933)

GENERAL EXCAVATOR CO. v. KEYSTONE DRILLER CO.

KEYSTONE DRILLER CO. v. GENERAL EXCAVATOR CO.

OSGOOD CO. v. KEYSTONE DRILLER CO.

KEYSTONE DRILLER CO. v. OSGOOD CO.

Nos. 6065-6068.

Circuit Court of Appeals, Sixth Circuit.

February 9, 1933.

F. O. Richey, of Cleveland, Ohio, and C. R. May, of Beaver, Pa. (Richey and Watts, of Cleveland, Ohio, and May & Bradshaw, of Beaver, Pa., on the brief), for Keystone Driller Co.

E. P. Corbett, of Columbus, Ohio, and L. T. Williams, of Toledo, Ohio (Edw. L. Reed, of Dayton, Ohio, Corbett & Mahoney, of Columbus, Ohio, and Williams, Eversman & Morgan, of Toledo, Ohio, on the brief), for General Excavator Co. and Osgood Co.

Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges.

HICKENLOOPER, Circuit Judge.

Two principal contentions are advanced in support of the petition for rehearing. The first is that the original action is founded upon alleged infringement of five patents and that the bill should not be dismissed as to the four patents to which the "unclean hands" had no application. The cases cited are not precisely in point. In re Meyerfield (D. C.) 46 F.(2d) 665, pertained to a claim in bankruptcy in which the claimant before the referee forged a deed and offered it in evidence to support his claim. He also claimed by reason of a resulting trust, and it was held that proof of the forgery did not preclude his recovery under the resulting trust. In this case the claimant did not undertake to initiate proceedings for his own relief in a court of equity. He was brought into such a court against his will and founded his claim upon two contentions as to one of which he fabricated evidence. The relief which was sought on the alleged resulting trust theory in no sense could be said to be "founded on the unlawful things done or intended to be done." Woodward v. Woodward, 41 N. J. Eq. 224, 4 A. 424, was a divorce proceeding and therefore not strictly an action in equity. Munn & Co. v. Americana Co., 83 N. J. Eq. 309, 91 A. 87, L. R. A. 1916D, 116, was a case in which action was brought upon two grounds of relief, as to one of which plaintiff was held not to be entitled to a decree. Maatschappij Tot Exploitatie, etc., v. Kosloff, 45 F.(2d) 94 (C. C. A. 2), uses language which is broad enough to justify plaintiff's position but which was obviously used without direct reference to the precise question we must here consider.

Prior to the adoption of the New Equity Rules (28 USCA § 723), the question could never have arisen for a bill covering multiple causes of action would have been bad for duplicity. Such new Equity Rules are not intended to change the general nature and characteristics of a court of equity as a court of conscience in which the granting of relief is largely discretionary and the court is not bound by hard and fast rules. Cf. Pope Mfg. Co. v. Gormully, 144 U. S. 224, 236, 237, 12 S. Ct. 632, 36 L. Ed. 414. It is true that a system of equity practice has grown up and that present-day courts are inclined to follow precedents rather strictly. On the other hand, we have not held any of the patents in suit invalid nor adjudicated any of the rights of the parties inter sese. The doctrine which we have applied is simply that if one, as actor, seeks to set...