Rossiter v. Vogel

• Decision Date: 29 March 1945
• Docket Number: No. 257.,257.
• Citation: 148 F.2d 292
• Parties: ROSSITER v. VOGEL et al.
• Court: U.S. Court of Appeals — Second Circuit

148 F.2d 292 (1945)

ROSSITER v. VOGEL et al.

No. 257.

Circuit Court of Appeals, Second Circuit.

March 29, 1945.

Jerome E. Malino, of New York City (Gilbert & Gilbert and Francis Gilbert, all of New York City, on the brief), for plaintiff-appellant.

Milton M. Rosenbloom, of New York City (O'Brien, Driscoll & Raftery and Arthur F. Driscoll, all of New York City, on the brief), for defendants-appellees.

Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Our previous decision in this case, 2 Cir., 134 F.2d 908, reversed a summary judgment granted by the District Court, D.C.S.D.N.Y., 46 F.Supp. 749, which had established plaintiff's rights to the renewal copyright of Shelton Brooks' song "Some of These Days" in 1938 on the basis of an assignment of the expectancy of renewal by Brooks to plaintiff on November 8, 1926. Our reversal was because defendants, who relied on a later assignment from Brooks, had shown by affidavits in opposition to the summary judgment that they attacked the assignment to plaintiff on grounds of fraud and of inadequacy of consideration sufficient to prevent its enforcement under the authorities cited there and earlier in M. Witmark & Sons v. Fred Fisher Music Co., 2 Cir., 125 F.2d 949, 954, 956, affirmed Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 647, 656, 657, 63 S. Ct. 773, 87 L.Ed. 1055. Although these grounds of objection had not been set up in the answer, we held, in accordance with the usual practice, Downey v. Palmer, 2 Cir., 114 F.2d 116; Cohen v. Randall, 2 Cir., 137 F.2d 441, 444, certiorari denied 320 U.S. 796, 64 S.Ct. 263, that facts appearing in affidavits which would justify an amendment of the pleadings would prevent the entry of a final judgment. Upon remand of the case defendants amended their answer to plead these defenses in detail; and after an extended trial, the district judge made findings of fact and conclusions of law to the effect that Brooks' contract of 1926 with plaintiff was unenforceable. This appeal is from the resulting dismissal of the complaint.

The judge's findings were on the theory that Brooks' "bill of sale" of November 8, 1926, purporting to transfer "all copyright renewals," and thus being an assignment of an expectancy, operated only as an executory contract to transfer the renewal rights when they were to accrue in 1938, and that it was invalid for lack of consideration. Under our earlier decision the assignment, if valid, would be treated as a present assignment of a future right. Hence the issue tendered was not the bare legal validity of the instrument, but whether defendants had established their defenses of lack of equity, justifying a court of equity in granting that aid which was necessary to make the assignment ultimately effective. The findings thus made were more directly apposite to the judge's theory than to the one we set forth. But since the judge's view is quite clear, as was also the evidence, we see no occasion to return the case for more findings. For findings "are not a jurisdictional requirement of appeal," but only "aid appellate courts in reviewing the decision below"; and defects therein may be waived where "the error is not substantial in the particular case." Hurwitz v. Hurwitz, 78 U.S.App.D.C. 66, 136 F.2d 796, 799, 148 A.L.R. 226; Sbicca-Del Mac, Inc., v. Milius Shoe Co., 8 Cir., 145...