Raytheon Mfg. Co. v. Radio Corporation of America

• Decision Date: 08 April 1935
• Docket Number: No. 2946.,2946.
• Parties: RAYTHEON MFG. CO. v. RADIO CORPORATION OF AMERICA.
• Court: U.S. Court of Appeals — First Circuit

76 F.2d 943 (1935)

RAYTHEON MFG. CO. v. RADIO CORPORATION OF AMERICA.

No. 2946.

Circuit Court of Appeals, First Circuit.

April 8, 1935.

Edward F. McClennen, of Boston, Mass. (E. Curtiss Mower, Jr., and Edward Williamson, both of Boston, Mass., on the brief), for appellant.

Richard C. Curtis, of Boston, Mass. (John L. Hall, of Boston, Mass., on the brief), for appellee.

Before WILSON and MORTON, Circuit Judges, and MORRIS, District Judge.

MORRIS, District Judge.

This is an appeal by the plaintiff, appellant, from what is termed a final decree in equity entered February 19, 1934, in the United States District Court of Massachusetts.

The action was brought December 14, 1931, by the plaintiff as an action at law. It is based upon the Anti-Trust Laws, US CA, title 15, c. 1, § 15 (Clayton Act § 4).

Triple damages are sought totaling $9,000,000. The plaintiff's declaration, as amended, contains two counts; one under the Sherman Anti-Trust Act (15 USCA § 1 et seq.), and the other under the Clayton Act (38 Stat. 730). The facts set forth are substantially the same in the two counts. The plaintiff alleges that in the year 1926, it was engaged in the manufacture, distribution, and sale in interstate commerce of tubes known as Raytheon rectifying tubes for use in radio receiving sets, and that it had built up a large and valuable good will in this interstate commerce business, and a large trade from which it realized in 1926 a net profit of $454,935, and that the defendant through manipulation and conspiracy with others has established a monopoly and totally destroyed plaintiff's business.

The defendant, the present appellee, for answer, filed a general denial and set up a general release under seal alleged to have been executed on or about March 19, 1929. Plaintiff's declaration referring to this alleged release says it was executed under legal duress. Defendant's answer denies duress.

After some sparring between the parties involving a motion to strike, demurrer, a motion for specifications, and various amendments on one side and the other, the pleadings were finally perfected.

On October 10, 1932, the defendant filed a motion to transfer the case to equity for a preliminary hearing upon the validity of the release. The motion was based upon the following grounds: "1. In its answer the defendant has alleged that the plaintiff released the defendant from all claims. 2. The plaintiff has conceded in paragraphs 36 and 37 and counts 1 and 2 of its declaration that the plaintiff did execute such a release, but the plaintiff alleged that the said release was executed under duress. 3. The said release was under seal in that the plaintiff adopted the seal of the other parties who signed the release. 4. A release under seal cannot be avoided in an action at law. 5. Great delay and expense would be saved by preliminary hearing on this issue."

On November 8, 1932, the defendant's motion to transfer the case to equity was granted by the District Judge, and on November 9, 1932, plaintiff's bill of exceptions to the order was filed and allowed.

On November 12, 1932, the plaintiff filed a motion for the framing of an issue to be tried by jury upon the issue of the validity of the release executed by the plaintiff. The motion was denied April 4, 1933.

On January 3, 1934, the plaintiff filed a motion on the law side of the docket that the order of November 8, 1932, transferring the case to equity be rescinded or be vacated or be superseded. In this motion the plaintiff disclaimed any right or remedy in equity to be relieved from the operation of the release, but claimed that a court of equity is without jurisdiction of these issues when presented in an action at law in which as to such duress neither party claims an equitable right or seeks an equitable remedy; that the plaintiff has and claims a right to trial by jury on this issue which arises in an action at law.

The foregoing motion was denied February 2, 1934.

On February 12, 1934, the plaintiff filed the following motions for entry of final decree:

"The plaintiff insists on its objections to the jurisdiction of this court in equity and to the order of transfer thereto and without waiving said objections says as follows:

"1. The plaintiff hereby discontinues, becomes nonsuit and dismisses before any hearing in equity any and all allegations and claims that in equity the release alleged in the plaintiff's declaration and in the defendant's motion for transfer is invalid in equity more than at law and that the plaintiff has any equitable right to a decree declaring said release invalid or to any relief in equity.

"2. The plaintiff admits and avers that it has no right in equity or to any remedy therein and because, and that, it has a plain, adequate and complete remedy at law in that a court of law will not give force or effect to a release obtained in the manner alleged and having said unlawful effect if enforced.

"3. The plaintiff tenders in equity no evidence in support of any right to relief in equity and now has no such evidence and, therefore, before hearing, announces the conclusion of its evidence in equity in support of any such right in equity, to the same extent and with the same effect as if the court in equity should now have set this case for hearing of evidence against the plaintiff's protest.

"4. This suit in equity is now before hearing ripe for final disposition.

"Wherefore the plaintiff moves that a final decree be entered in equity No. 3767, (1) dismissing said suit in equity No. 3767 for the reasons aforesaid, or (2) terminating said suit in equity No. 3767 in such manner as, in this state of the record, equity requires and (3) thereupon returning the papers originally filed in law No. 5021 to the court of law."

The above motion came on for hearing February 19, 1934. After hearing, the District Judge filed a rescript of his findings of fact and conclusions of law in which he set forth the various motions and rulings thereon, and in conclusion said: "Upon the issues submitted aforesaid to the Court sitting in equity, I, therefore, rule that the release is valid."

A final decree was entered in accordance with the findings of the court, February 19, 1934.

No evidence was offered or introduced at any stage of the proceedings but the court examined a copy of the contract between the parties embodying the release.

Exceptions were taken, filed, and allowed to each of the foregoing orders.

Plaintiff's petition for appeal is as follows:

"The plaintiff, aggrieved by the final decree entered in this case on Feb. 19, 1934, and by the proceedings on which the same is based, in the respects described in the assignment of errors herewithin, appeals to the Circuit Court of Appeals for the First Circuit from said final decree except so far as said decree transfers this case back to law, and from said proceedings, and prays that this, its claim of appeal, may be allowed and that the transcript of the record proceedings, bills of exceptions and papers upon which the said decree was based, duly authenticated may be sent to said Circuit Court of Appeals."

The order of the District Court upon plaintiff's petition is as follows: "March 9, 1934. Bond approved and above appeal allowed not as a supersedeas."

Plaintiff assigned the following alleged errors:

"First. In allowing on or about November 8, 1932, the defendant's motion to transfer case to equity for a preliminary hearing upon the validity of the release given by the plaintiff.

"Second. In denying on or about April 4, 1933, the plaintiff's motion for framing jury issues.

"Third. In denying on or about February 2, 1934, the plaintiff's motion to rescind or to vacate or to supersede the aforesaid order of this court entered on or about November 8, 1932, whereby the defendant's motion to transfer to equity was allowed.

"Fourth. In adjudging affirmatively, without evidence and in equity, in its finding and in its final decree entered February 19, 1934, upon the plaintiff's motion of February 12, 1934, but contrary thereto, that the release set forth in the defendant's answer and elsewhere is both valid and binding and that the further proceedings at law shall be in accordance with this decree."

No judgment of any kind has been entered in the action at law. It is pending for trial. During the progress of the oral arguments a question was raised as to whether or not this court had jurisdiction to entertain the appeal. The defendant does not challenge the plaintiff's right to appeal any of the orders and decrees in question. Both parties express the hope that, in the interests of directness and economy, this court will entertain it. We have every disposition to deal in a practical way with practical questions, but, as our jurisdiction is involved, we cannot pass the matter by without consideration. Consent of the parties is not sufficient. The right of appeal is strictly statutory. The provisions of the Judicial Code on which appeals ordinarily rest are sections 128 and 129 (28 USCA §§ 225, 227). Section 129 relates to appeals from interlocutory orders and decrees in proceedings for injunctions and receivers. Appeals are referred to in section 274b (28 USCA § 398), but there is nothing in its language expressly authorizing the right of appeal from an interlocutory order or decree. The question is whether the order of the District Court entered November 8th, transferring the case from law to equity, is appealable by reason of the provisions of section 129 when construed in conjunction with section 274b.

The latter section reads as follows:

"In all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject...