Breach of Contract Cases

Petitioner had both a qualified profit-sharing plan and a qualified money purchase pension plan. In a pre-ERISA taxable year, petitioner attempted to deduct as a sec. 404(a)(7), I.R.C. 1954, carryover deduction amounts in excess of any amount allowable as a deduction under sec. 404(a)(1)(C) and (a)(1)(D). Held: No sec. 404(a)(7) carryover deduction was created by petitioner's contributions to its pension plan in excess of the limits set in sec. 404(a)(1). During the years in issue the second sentence of sec. 404(a)(7) provided a carryover deduction only for amounts otherwise allowable as deductions which had been disallowed in a previous year under the first sentence of that paragraph.

Appeal from the District Court, Harris County, Ewing Werlein, J. Page 311

APPEAL from an order and judgment of the Superior Court of Santa Clara County confirming and enforcing an arbitrator's award under a collective bargaining agreement. William W. Jacka, Judge. Affirmed.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order transferring action to the Municipal Court of San Francisco. Preston Devine, Judge. Affirmed. Action for damages for wrongful discharge of railroad employee, and for declaration of rights under a collective bargaining agreement. Judgment for defendants affirmed.

APPEAL from a judgment of the Superior Court of Los Angeles County. A.K. Wylie, Judge. [fn*] Affirmed. Action for damages for wrongful termination of a contract of employment. Judgment for plaintiffs affirmed. [fn*] Assigned by Chairman of Judicial Council.

<p>The present suit is bottomed on several causes of action. An action is alleged under §§ 1 and 2 of the Sherman Act1 and §§ 4 and 16 of the Clayton Act;2 another action is alleged under the Declaratory Judgment Act.3 The controversy centers about a suit for unfair competition brought by Cornell-Dubilier against Sprague in the Massachusetts state court. Each of the parties here moves against the other for summary judgment. The facts are taken from the complaint, the affidavits and depositions.</p> <p>Sprague, a competitor of Cornell-Dubi-lier, was sued in Massachusetts in May, 1941. The following year Cornell-Dubilier sued three of its other competitors. All the parties manufacture electrical condensers. They are the largest in the industry and their combined production represents more than half of the condensers sold in the United States. The device is an indispensable element of radios, telephones, airplanes, trucks, submarines, tanks, direction finders, etc. Practically all condensers manufactured by the parties are sold to the government. Production demands have sharply increased. Personnel has doubled, but there still remains a labor shortage. Executive and key operating personnel are required to give their undivided attention to production schedules.</p> <p>Plaintiff charges that the suits brought by defendant seek to enjoin plaintiff and other competitors of defendant from carrying on their manufacturing operations and to recover heavy damages. These actions, especially the one against plaintiff, require the attention of executives and key production men at a time when their attention is required by war work, with a resultant interference with both production and research, all of which damages the reputation and competitive position of plaintiff. The suit against plaintiff (which is typical of the suits against defendant’s other competitors) is based upon alleged breaches of contract by former employees of defendant, who are now in plaintiff’s employment and

<p>Appeal, No. 187, Oct. T., 1912, by defendants, from judgment of O. P. Somerset Co., Sept. T., 1907, No. 116, on verdict for plaintiffs in case of Henry B. McCormick and Vance C. McCormick, Trustees of tbe Estate of Henry McCormick, Deceased, v. John A. Berkey and John R. Boose.</p> <p>Issue framed under tbe Act of June 10, 1893, P. L. 415, to determine title to minerals underlying tract of land in Quemakoning Township. Before Holt, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict in favor of the plaintiffs for the real estate in dispute, upon which judgment was entered.</p> <p>On a rule for a new trial and for judgment n. o. v., Holt, P. J., filed the following opinion:</p> <p>In this case an issue was framed between the plaintiffs and the defendants, to determine the right and title of the respective parties in and to a tract of mineral land in the Township of Quemahoning, in said county, bounded by lands of Jacob Lohr, and others, containing 192 acres and 118 perches strict measure.</p> <p>On the 14th day of May, 1887, the Johnstown Lumber Company became the owners in fee simple of a certain tract or piece of land in said township, containing 245 acres and 134 perches; and the Johnstown Lumber Company, on the 25th day of April, 1889, being so seized of said tract of land, executed and delivered unto one John Holsopple a deed for 192 acres and 134 perches of the said tract of land, reserving the right of the grantors to all the minerals underlying the same, with the usual mining privileges. The Johnstown Lumber Company, by another deed, dated October 28, 1891, conveyed unto the Cambria Land Company, by metes and bounds, the whole of the said tract of land containing 245 acres and 134 perches, excepting and reserving,, however, out of the operation of the grant, the 192 acres and 134 perches of the surface of said tract heretofore conveyed by the Johnstown Lumber Company to John Holsopple.</p> <p

<p>For the purpose of the decision in this case it is necessary-only to state: That this is an action for accounting brought by the plaintiff, Pearce, against the defendants Sutherland and the Alaska Perseverance Mining Company, a corporation, upon the theory that the defendant corporation is a holding company for the defendant Sutherland. That a partnership agreement for the purchase and sale of certain mining property was entered into between the plaintiff and Sutherland, and the defendant corporation was subsequently organized to hold the legal title of the said property for the partnership. That after the plaintiff Pearce was discharged by the corporation as superintendent of their property in Alaska, and after he had brought an action against the defendants herein, a compromise agreement in writing was entered into upon mutual and valuable considerations between the parties herein at Vancouver, B. C., on July 21, 1906, which covered every transaction between them in the greatest detail. That after plaintiff had received the consideration of $5,000 under the compromise agreement, and upon failure of the defendant to make the payment due December 15, 1906, the plaintiff attempted to rescind the agreement and filed the original bill in this action in this court in April, 1907. After subsequent amendments his third amended bill was before the United States Circuit Court of Appeals, Ninth Circuit, on an appeal from this court sustaining the demurrers to the bill. 164 Fed. 609, 90 C. C. A. 519. The decision of the Circuit Court of Appeals allowed the plaintiff to amend, and the complaint in this action and the present bill was then filed.</p> <p>The defendants filed their separate answers, to which the plaintiffs entered their demurrers and replies, and the case came on for hearing with the understanding that the court reserve decision on the demurrers. The case came on for hearing before this court, without a jury, on the 16th day of May, 1910, and thereafter contin

<p>CASE 13. — ACTION BY Z. T. PROCTOR AGAINST THE I. C. R. R. CO. AND OTHERS FOR DAMAGES FOR PERSONAL INJURIES. — November 8, 1905.</p> <p>Appeal from Grayson Circuit Court.</p> <p>Weed S. Chele, Circuit Judge:</p> <p>Judgment for plaintiff. Defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Admission of incompetent testimony of statements of someone in overalls not shown to be an employe of appellant.</p> <p>2. Misconduct of counsel in his closing argument. (McHenry, &-c., Co. v. Sneddon, 98 Ky., 684; L., H. & St. L. Ry. Co. v. Morgan, 23 Ky. Law Rep., 121; L. & N. R. R. Co. v. Hull, 24 Ky. Law' Rep., 379; 113 Ky., 572; I. C. R. R. Co. v. Jolly, 27 Ky. Law Rep., 118.)</p> <p>3. The jury should have been instructed peremptorily to find for Ihe defendant. (Prance’s Admr. v. L. & N. R. R. Co., 15 Ky. Law</p> <p>Rep., 244; 22 S. W., 851; Ward’s Admr. v. I. C. R. R. Co., 22 Ky. Law Rep., 191; 56 S. W., 807; Yates v. I. C. R. R. Co. (not yet reported), September 21, 1905; Manning v. I. C. R. R. Co., 27 Ky. Law Rep., 142.)</p> <p>4. This action has been removed to the United States Circuit Court ior the Western District of Kentucky, and the Circuit Court erred in assuming jurisdiction of this action after the petition and bond for removal were filed. (C. & O. Ry. Co. v. Dixon, 179 U. S.; I. C. R. R. Co. v. Jones, 26 Ky. Law Reg., 31; 80 S. W., 484; Daughtry v. R. R. Co., 138 U. S., 299 (34 L. Ed., 963); B. C. R. & N., &c., Co. v. Dunn, 122 U. S., 513 (30 L. Ed., 1160); Durkee v. I. C. R. R. Co., 81 Fed., 1; Kelly v. Co., 122 Fed., 286; Gustafson, &e., v. Co., 128 Fed., 85; Crawford v. I. C. R. R. Co., 130 Fed., 395; Dishon’s Admr. v. C., N. O. &T. P., 133 Fed., 471; Wharton on “Agency and Agents,” section 536, p. 350; Blackstone, Vol. 1, p. 431; Wharton’s Agency, section 535; Shear. & Red. on Neg., 5th Ed., p. 52; Colvin v. Holbrook, 2 N. Y./129; Murray v. Usher, 117 N. Y., 549; Kelly v. Chicago, &c., Ry. Co., 122'Fed., 290; Davenport v. Southern Ry. Co., 124 Fed

<p>Appeal from the Branch Appellate Court for the First District;—heard in that court on writ of error to the Circuit Court of Cook county; the Hon. E. P. Vail, Judge, presiding.</p> <p>On February 28, 1890, Paul J. Sorg, (now deceased,) father of the appellees Sorg, who was then the owner of the premises known as 178 Quincy street, in the city of Chicago, executed to one William J. Gunning a lease thereon for the term of ninety-nine years, at the annual rental of $1800, payable in advance, in quarterly installments of $450. The lease contained the following covenants: Said lessee also “covenants and agrees that during the existence of this lease he will not transfer or set over, or otherwise by any act or deed procure or permit his interest in the said premises and improvements thereon, or in any part thereof, to be assigned, transferred or set over, nor underlet said premises hereby demised, or procure the same to be done, to any person or persons whatsoever, without first obtaining the consent, in writing, of said party of the first part thereto; but nothing herein contained shall be so construed as to prevent the said party of the second part from renting the building or buildings on said premises, and that in the event that any assignment shall be made, (after complying with the conditions hereinbefore set forth,) the assignee shall be subject to same terms and conditions as to further assignment and to all covenants,, agreements, provisions and conditions contained in this lease. It is further mutually understood and agreed by and between the parties hereto, that in case at any time during the continuance of this lease default should be made by said party of the second part in the payment of the rent above reserved * * * for thirty days after the same shall fall due or become payable, or in case of default in carrying out any of the covenants and agreements required to be kept, done or performed by said party of the second part for the space of thirty days, th

<p>Appeal, No. 24, Jan. T., 1903, by defendant, from judgment of C. P. Chester Co., April T., 1900, No. 73, on verdict 'for plaintiff in case of George Quigley v. The Montgomery & Chester Electric Railway Company..</p> <p>Trespass for injury to land. Before Hemphill, P. J.</p> <p>At the trial it appeared that George Quigley, the plaintiff, entered into an agreement in writing with the defendant which was in part as follows :</p> <p>“ That the party of the first part in and for the consideration of the sum of one dollar ($1.00) in hand well and truly paid by the party of the second part at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, does hereby give and grant to the said Railway Company, its successors and assigns, the right and privilege to survey, locate and lay out a line for its railway, in, over and upon all that certain piece of land situate in the Township of East Pikeland, County aforesaid, beginning at the line between the property of said George Quigley and John Latshaw, thence in a Southerly direction keeping to the East of the dwelling of said Quigley and along the wall of the barnyard at a distance to be agreed upon, thence bearing to the West and continuing to the Schujdkill Road parallel to the road running to Zion’s Church, taking a strip of land twenty feet in width. The fences to be moved by the party of the first part; and the party of the first part doth hereby covenant, promise and agree to and with the party of the second part, its successors and assigns by proper deed of release and conveyance, to transfer to the said party of the second part the strip of ground not exceeding twenty feet in width, upon which said location may be made, if the same be adopted as a permanent location by the party of the second part, and the party of the second part hereby covenants and agrees that, if it adopts the temporary location for the permanent location of its railway, upon the delivery to it of a pro

<p>Appeal, No. 193, Jan. T., 1892, by defendants, M. F. Keiter et al., from decree of C. P. Franklin Co., Dec. T., 1889, Ko. 1, on bill in equity, in favor of plaintiffs, H. A. Solilicbter, Presiding Elder of the Cbambersburg District of the Church of the United Brethren in Christ; Theophilus Wagner, Preacher in Charge and Superintendent of the Sunday School; Henry Strealy, Class Leader, and J. F. Fisher, J. N. Sheeley, J. F. Wilt, C. R. Hoover, Simon Burns, E. Bovey and J. Hellane, Trustees of the Church of the United Brethren in Christ at Greencastle, Pa.</p> <p>Bill in equity to restrain defendants from any interference with the services or church property of “ The United Brethren in Christ,” at Greencastle, Pa.</p> <p>The bill alleged that H. A. Schlichter was the presiding elder of the Chambersburg district of the Church of the United BretU ren in Christ, of which district the Greencastle circuit forms a part; that Theophilus Wagner was the preacher in charge of said church at Greencastle, duly and regularly assigned, and the duty appointed superintendent of the Sunday school; that Henry Strealy was the duty and legally elected class leader of said church, and the said J. F. Fisher, J. N. Sheeley, J. F. Wilt, C. R. Hoover, Simon Burns, E. Bovey and J. Hellane the trustees of said church.</p> <p>It then set forth the action of the general conference of the Church of the United Brethren in Christ held in 1885, looking to an amendment of the constitution and a revision of the confession of faith of the church; the action of the general conference of 1889 and of the board of bishops in relation to the amended constitution and revised confession.</p> <p>That after proclamation had been made by a majority of the board of bishops declaring said amended constitution and revised confession of faith to be the constitution and confession of faith of the church, a minority of the bishops and delegates to said conference withdrew therefrom and proceeded to organize another

<p>Street railroads. Independent contractors. Negligence. Verdict. .Before Judge Van Epps. City court of Atlanta. March term, 1891.</p> <p>Reported in the decision.</p>

<p>Appeal from city court, general term.</p> <p>Action by William T. P. Brown against the Baldwin & Gleason Company, Limited, to recover damages for an alleged wrongful discharge from the defendant's service. The plaintiff was employed by the defendant to serve it “exclusively and actively as traveling salesman” under a written contract. He entered upon his duties, but soon thereafter declined to pursue them, upon ■ the ground that they did not include the getting out a line of samples for the trade. Defendant offered evidence tending to show that the preparation of samples was included by the usages of trade in a written contract to act as “traveling salesman;” also to show that the defendant was incapacitated, by habits of intemperance, to fulfill his contract,—all of which the court rejected. The defendant thereupon requested to go to the jury upon the amount of damage sustained by the plaintiff. There was a verdict and judgment for the plaintiff, and the defendant appeals.</p>

<p>ERROR TO THE COURT OE COMMON PLEAS NO. 1 OE ALLEGHENY COUNTY.</p> <p>No. 256 October Term 1887, Sup. Ct.; court below, No. 584 December Term 1886, C. P. No. 1.</p> <p>On December 4, 1886, a summons in debt was issued in an action by John W. Cook, for use of A. Cook, against tbe Pennsylvania Natural Gas Company, the United Gas Fuel Company and B. F. Rafferty. On December 14th, the defendants pleaded, nil debet.</p> <p>At the trial on May 11, 1887, the defendants filed the additional plea of non est factum. It then appeared that in May, 1886, J. W. Cook, the plaintiff, under a lease from the Pittsb. & W. R. Co., was in possession of a landing on the Allegheny river, at the foot of School street, Allegheny city, the landing extending some distance above and below said street. School street, at right angles with the river, had never been actually opened, although it was upon the city plan. In an eddy adjacent to the shore, the plaintiff had a floating saw mill, a floating planing mill, and a floating dock for building and repairing barges. Access from the shore to the mills was over a float which lay at the foot of School street, and a bridge connected the float with the mills. By permission of the city, the plaintiff had made a plank road on School street, to reach the landing.</p> <p>The Penn. N. Gas Co. was a corporation, organized under the act of May 29, 1885, P. L. 29, and on May 19, 1886, was constructing aline or lines for the conveyance of natural gas from the foot of School street across the river to the foot of Third street, in Pittsburgh, B. F. Rafferty being in charge of the work. The plaintiff’s float and mills were in the way. Mr. Rafferty proposed to move them and Mr. Cook objected. After some controversy, the company gave to the plaintiff the bond on which suit was brought, and were thereupon permitted to enter and move his float and mills so as to enable them to dig the trench and lay their lines.</p> <p>B. F. Rafferty, one of the defendants, called

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1880, No. 134.</p> <p>This was’ an action in assumpsit brought by John A. Finney and Ada M. Finney, his wife, for use of fhe said Ada M. Finney, against A. H. Rowand, Jr., to recover the sum of $1965, with interest from August 3d 1875.</p> <p>A. H. Rowand, Jr., the defendant below, by warrantee deed dated August 3d 1875, conveyed to Ada M. Finney certain property in the borough of Verona, county of Allegheny, for the consideration of $2700. He received $1200 cash and a purchase-money mortgage with bond and notes of John A. and Ada M. Finney for $1500, payable in two instalments of $750 each, in four and six months respectively. The four months’ note he endorsed to the Franklin Savings Bank, of Allegheny. The six months’ note was endorsed to the Diamond National Bank, of Pittsburgh. When the first note matured, it was protested for non-payment, and a few days thereafter Finney paid one-half of the amount, and a new note for the other one-half, with interest added, was made by Finney and wife to Rowand’s order, and by him was endorsed to the Franklin Savings bank as before. This second note was also protested for non-payment at maturity. The six months’ note held by the Diamond National Bank was not paid and was protested at maturity. No further payments were made on these notes, and a scire facias was issued on the mortgage to No. 488, April Term 1876, marked A. H. Rowand, for use of the Diamond National Bank and George R. Riddle, trustee of the Franklin Savings Bank, v. Ada M. Finney and John A. Finney, her husband. Finney and wife appeared and made defence to this action, and on the trial there was a verdict against them for $848.92. Judgment was entered on the verdict and the property was sold on a levari facias, following the judgment, to the Diamond National Bank. After these ‘proceedings and sale, the present action was brought, wherein Finney and Avife claimed that