author: HOLDEN, District Judge:

text:
    Elton WARREN, Plaintiff-Appellee, v. HUDSON PULP & PAPER CORP., Defendant-Appellant and Third Party Plaintiff-Appellee, v. TREADWELL CORP., Third Party Defendant-Appellant.
    Nos. 258, 259, Dockets 72-1847, 72-1848.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 4, 1973.
    Decided March 29, 1973.

      Paul C. Matthews, New York City, for plaintiff-appellee.
    William F. McNulty, New York City (Hanner, Fitzmaurice & Onorato, New York City, on the brief), for defendant-appellant and third party plaintiff-appellee.
    Joseph D. Ahearn, New York City (Daniel J. Coughlin, New York City, on the brief), for third party defendant-appellant.
    Before FRIENDLY, Chief Judge, KAUFMAN, Circuit Judge, and HOLDEN, District Judge.

       Chief Judge of the District Court for the District of Vermont, sitting by designation.

   HOLDEN, District Judge:

In June, 1965, the plaintiff, a rigger by trade, was employed by Treadwell Corporation, a New York construction corporation, as a boilermaker foreman. He was hired to supervise the construction of two boilers on a project undertaken by Treadwell, in the performance of a construction contract with the defendant Hudson Pulp & Paper Corporation to expand the latter’s industrial plant in Palatka, Florida. This diversity suit was instituted by the plaintiff to recover for permanent damage to his respiratory system caused by the inhalation of noxious and toxic fumes produced in Hudson’s industrial operation adjacent to the construction site.

The jury awarded the plaintiff damages for Hudson’s negligence in the amount of $150,000. Judge MacMahon ordered a judgment to be entered in the same amount against Treadwell on the strength of an indemnity provision in its construction contract with Hudson. Hudson appeals from the judgment in the main action, contending that it was not negligent under Florida law. Tread-well appeals from that judgment and from the judgment entered against it in the indemnity action. We affirm both judgments.

Hudson owns and operates a kraft paper mill in Palatka, Florida, which produces 950 tons per day of converted products, bag and tissue. In April, 1965, Treadwell contracted with Hudson to complete the expansion of Hudson’s plant. The work covered by the contract between Treadwell and Hudson was performed under the general supervision of J. E. Sirrine Company, Hudson’s architect and supervising engineer for the project. This consultant maintained a staff of approximately twelve men on the site to coordinate the work of the various trades and see that contract specifications were fulfilled.

Under the contract Treadwell agreed to supply the materials and labor necessary to the expansion of the plant. Treadwell also agreed to extend the smokestacks of the No. 4 Power Boiler and the No. 2 Bark Boiler at the existing plant an additional 50 feet each. The contract further provided that Treadwell would assume the liability for any damages or injuries which occurred during the project as a result of Hudson’s negligence. The contract provided, however, that the work was to be performed in accordance with a construction schedule prepared for Hudson by the supervising engineer, J. E. Sirrine Company.

Elton Warren began work on the Palatka project on June 1, 1965. The work which Warren was assigned was the construction of two new boilers. To accomplish this, Warren and the other workers worked from an outdoor steel framework of the building under construction at heights of 90 to 100 feet. This job site was located some 75 feet from the smokestacks of the No. 2 Bark Boiler and the No. 4 Power Boiler of Hudson’s existing plant and not connected or related to the new boilers under construction. The No. 2 and No. 4 boilers continued in operation during the plant expansion until early September.

The No. 2 and No. 4 boilers burned a low grade fuel oil that produced smoke containing sulphur dioxide and carbon dioxide gases. Sulphur dioxide is a toxic gas capable of causing serious lung damage to one who inhales it. The smoke emitted from the stacks enveloped the structural framework where Warren and the other men were working when the wind was blowing in that direction, making it hazardous for the construction workers to remain at work. The smoke made it difficult for the workmen to breathe and caused nausea, sore throats, running noses and watery eyes. At times the men came down to the ground to escape the fumes. These working conditions were not improved nor corrected until Hudson shut down the boilers during the Labor Day weekend. At that time the stacks were lengthened to allow the smoke to pass over the heads of the Treadwell workers. The elevation of the stacks greatly improved the working conditions and substantially eliminated the smoke hazard.

From the time he began work at Palatka, on June 1, until Labor Day, the plaintiff suffered from the fumes. He made frequent complaints to the Tread-well general foreman. Each time he was told that the situation would be corrected within a few days. Treadwell, in turn, had been informed in June by the supervising engineer, J. E. Sirrine Company, that a stack extension would be fabricated to enable Treadwell to lengthen the offending stacks.

After he stopped work at Palatka, the plaintiff discovered that he had developed a permanent and progressively worsening pulmonary condition which prevented oxygen from diffusing properly into his bloodstream. The cause and extent of the plaintiff’s injury are not questioned in this appeal; only liability is challenged.

The Motion to Dismiss

At the conclusion of the plaintiff’s evidence, the defendant Hudson moved to dismiss the complaint on the ground that “. . . the plaintiff failed to make out a prima facie case under the law of Florida.” No motion for a directed verdict, as such, was offered by either Hudson or Treadwell. Both appellants, however, join in the claim of error and apparently rely on the motion to dismiss as a motion for a directed verdict. In this context a motion to dismiss in a jury trial may be allowed to do service for a motion for directed verdict under Rule 50(a). C. Wright and A. Miller, Federal Practice and Procedure § 2371. We so regard it for the purposes of this review.

In Florida a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining the premises in a reasonably safe condition; and (2) to give the invitee warning of concealed perils which are or should be known to the landowner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care. Hall v. Holland, 47 So.2d 889, 891 (Fla.1950); Restatement, Torts 2d § 343. The employee of an independent contractor has the status of a business visitor. Hall v. Holland, supra; Hickory House v. Brown, 77 So.2d 249, 252 (Fla.1955).

This was more recently stated in Hamilton v. Armstrong Co., 371 F.2d 139, 140 (5th Cir. 1967).

It is settled law in Florida that an owner is under a duty to use reasonable care in maintaining his premises in a reasonably safe condition and to give timely notice or warning of latent and concealed perils known to the owner, or which by the exercise of due care should have been known to him, and which are not known to an invitee or which by the exercise of due care could not have been known to him. This duty is the same whether the invitee be there as the employee of the owner or as the employee of an independent contractor.

The evidence presented at the trial established that the responsible officers and representatives of Hudson at the construction site were aware of the presence of sulphur dioxide in smoke produced by the combustion in Boilers No. 2 and No. 4. They knew or should have known the stacks were giving off poisonous fumes and the dangerous consequences which could result from continuing exposure to its toxicity.

Hudson’s supervising engineer knew of the drift of the smoke which frequently enveloped the open structural frame where the plaintiff was working. Yet Hudson made no effort to correct the problem and gave no warning to Treadwell’s employees of the danger from the inhalation of the fumes from its stacks.

The presence of foreseeable harm, coupled with the defendant Hudson’s ability to arrange Treadwell’s work schedule and its undisputed control of the offending stacks provide all of the necessary ingredients of a prima facie case of negligence under the law of Florida. The defendant’s motion to dismiss the action was properly denied.

Instructions to the Jury

In submitting the issue of Hudson’s negligence, Judge MacMahon instructed the jury:

In determining whether the defendant exercised due care under the circumstances, you may consider what knowledge the defendant had or that it should have had as to the dangerous qualities of the flue gas emitting from its stacks.
In this regard, a person who causes gases and fumes to be discharged into the atmosphere, an industrial company like this, has a duty to find out what is in those gases and whether they are noxious before it emits them into the atmosphere.

There were no objections by either defendant to these instructions. Both defendants, however, objected to the instructions which immediately followed.

The possessor of land, in these circumstances, has an additional duty to the plaintiff, a business visitor, to exercise reasonable care to discover the negligent acts or the likelihood of negligent acts by third persons like Treadwell, who were invited to come onto the property to perform services in connection with the business.
One aspect of this duty is that the possessor of the land, Hudson here, must exercise a reasonable, careful supervision of the appliances and the methods used by Treadwell, whom it employed or permitted to carry out on the land an activity directly or indirectly connected with the business use of the premises.

Hudson and Treadwell join to challenge this portion of the charge. Without reference to any Florida decisions, the appellants seem to rely on the law of New York, where it is said the safe place to work doctrine is far more extensive than in Florida, citing Watt and Sinclair of Florida, Inc. v. Hunter, 126 Fla. 750, 171 So. 817 (1937). Our concern, however, is with the law where the injury was inflicted.

The underlying prerequisite to liability in the landowner is superior knowledge. Rist v. Florida Power & Light Co., 254 So.2d 540, 542 (Fla.1971); Quinnelly v. Southern Maid Sugar Co., Inc., 164 So.2d 240, 242 (Fla.App.1964). The evidence in this case satisfies the demands of the Florida law since Hudson’s officers knew of the chemical components of the combustion which gave off the poisonous fumes. While the plaintiff knew the stacks were disgorging smoke, he did not know that they were discharging poison that would damage lung tissue.

In the présence of a known danger, the fact that the dangerous condition was created or partially caused by an independent contractor will not shield the landowner from legal liability. See Peairs v. Florida Publishing Company, 132 So.2d 561 (Fla.App.1961). The duty of reasonable care is a responsibility that cannot be delegated. Florida follows the rule that an occupant of premises who has knowledge of a dangerous situation, even though created by an independent contractor, may incur liability through failure to halt the operation or otherwise remove the danger. Emelwon, Inc. v. United States, 391 F.2d 9 (5th Cir. 1968); Maulé Industries, Inc. v. Messana, 62 So.2d 737 (Fla.1953); Breeding’s Dania Drug Co. v. Runyon, 147 Fla. 123, 2 So.2d 376 (1941).

Here Hudson’s supervising engineer was regularly present at the site where Treadwell employees were working. Hudson was in a position to know the methods employed by Treadwell. Being aware of the chemical content of the smoke drifting into the work area, it was also in a position to know the effect that Treadwell’s methods of work might have on the health of the Treadwell workers. On this evidence it was not error to hold Hudson to the exercise of reasonable care in the supervision of its construction project with Treadwell.

The Court’s instructions were consistent with the facts and correctly applied the law of Florida. We affirm the judgment for the plaintiff in the principal action.

Third Party Action

The remaining question for review concerns the judgment - that was rendered for Hudson on its third party complaint against Treadwell. The judgment was ordered by Judge MacMahon on the strength of the evidence presented in the principal action. This followed the court’s binding instructions to the jury. No objection was offered to this method of dealing with the third party claim and it appears to be in keeping with the understanding of the court and counsel.

The trial court’s award of indemnity to Hudson is founded on an indemnity agreement contained in the construction contract between Hudson and Treadwell. The indemnity agreement provided that Treadwell, “(t)he contractor shall assume the entire responsibility and liability for any and all damage and injury of any kind or nature whatsoever . . . to all persons, whether employees of the Contractor or otherwise . . . caused by, resulting from, arising out of, or occurring in connection with the execution of the work provided for in the Contract . . . . ” The force and effect of the indemnity agreement are govered by the law of New York.

It is the law of that jurisdiction that one party to a contract may agree to indemnify another against the latter’s own active negligence, where that intent is evident from the terms of the contract. Levine v. Shell Oil Co., 28 N.Y.2d 205, 321 N.Y.S.2d 81, 269 N.E.2d 799, 802 (1971). See Ciofalo v. Vic Tanney Gyms, Inc., 10 N.Y.2d 294, 1220 N.Y.S.2d 962, 177 N.E.2d 925, 926 (1961). Despite the obvious intent of the provision that Treadwell shall indemnify Hudson against Hudson’s active negligence, Treadwell contends that the contract should not be enforced. It states these reasons: (a) It is against public policy to allow a party to receive contractual indemnity for negligence extending over several months; (b) Warren’s injury was caused by Hudson’s intentional wrongdoing, not by its negligence; (c) Hudson should be estopped from enforcing the indemnity agreement.

The terms of Treadwell’s undertaking are sufficiently inclusive to justify indemnification, even though it can be said, as the indemnitor claims, that the plaintiff’s injury was caused by Hudson’s active negligence. Treadwell assumed entire responsibility to all persons, whether employees or not, for injuries sustained in the execution of its contract, even if such claims should be based upon the owner’s active negligence. With such a broad undertaking the New York courts hold the indemnitor to his bargain. Kurek v. Port Chester Housing Authority, 18 N.Y.2d 450, 276 N.Y.S.2d 612, 223 N.E.2d 25, 28 (1966).

Public policy. Treadwell maintains that this case is distinguishable from Levine v. Shell Oil Co., supra, and other New York indemnity cases, in that Warren’s injury resulted not from a sudden accident, but from a dangerous condition tolerated by Hudson over a period of three months. Levine is not distinguishable on this basis. In Levine, the plaintiff was injured by a gas explosion which, although sudden, resulted from a leak which the indemnitee had knowingly tolerated for a long period of time. Treadwell agreed to indemnify Hudson freely and without reservation. Its undertaking will be enforced according to the intent expressed in the agreement.

Intentional wrongdoing. Treadwell’s contention that Hudson was an intentional wrongdoer and thus- is beyond protection of the indemnity agreement is similarly without merit. Tolerance of a known dangerous condition which eventually causes injury is negligent where the party permitting the danger to continue violates a duty owed to the plaintiff. But its neglect is no more than negligence; it is not an intentional wrong. See e. g., Levine v. Shell Oil Co., supra.

Estoppel. Finally, Treadwell argues that Hudson should be estopped from enforcing the indemnity agreement because Treadwell refrained from taking action to protect its employees from the smoke in reliance on ' Hudson’s assurances that it would raise the stacks. In New York the doctrine of estoppel operates to prevent a party from receiving a contractual benefit which comes its way because, in rightful reliance upon that party’s word or deed, the other contracting party has changed its position. Metropolitan Life Insurance Co. v. Childs Co., 230 N.Y. 285, 292, 130 N.E. 295, 298 (1921); Triple Cities Construction Co. v. Maryland Casualty, 4 N.Y.2d 443, 448, 176 N.Y.S.2d 292, 151 N.E.2d 856 (1958).

It appears from the record that Hudson did, with some frequency, assure Treadwell that it would soon raise the stacks. There is no indication in the record, however, that Treadwell would have taken action to protect its workers, absent these assurances, and no evidence that Treadwell changed its position in reliance on Hudson’s assurances. Even so, Treadwell’s reliance can hardly be justified under its contract with Hudson. Treadwell was not without power to influence the time of the extension of the stacks. According to the construction contract, it was Treadwell’s responsibility to provide and install the necessary materials required'to increase the height of the stacks. It does not appear that Treadwell made any attempt to relieve the smoke hazard nor to fix a date when the stacks could be extended. In this posture the doctrine of estoppel does not aid Treadwell nor excuse its apparent lack of concern for the physical health of its employees.

We find no justification in the record to support Treadwell’s final claim that Hudson frustrated the contractor’s ability to perform its undertaking to elevate the stacks. The claim apparently refers to Hudson’s continued operation of its boilers until September. If so, there is no indication that Treadwell requested them to stop their operation any earlier.

We hold the trial court correctly entered judgment for Hudson on Tread-well’s indemnity agreement.

      . The plaintiff originally sued his employer, Treadwell Corp., as well as Hudson Pulp & Paper Corp. At trial, however, he discontinued his action against Tread-well on the ground that the Florida workmen’s compensation law provided his sole remedy against his employer. It was thereupon stipulated that the cross-claim of Hudson against Treadwell be treated as a third-party complaint.

      . 18. HOLD HARMLESS
      The Contractor shall assume the entire responsibility and liability for any and all damage and injury of any kind or nature whatsoever (including death resulting therefrom) to all persons, whether employees of the Contractor or otherwise and to all property caused by, resulting from, arising out of, or occurring in connection with the execution of the work provided for in the Contract; and if any person shall make a claim for any damage or injury (including death resulting therefrom) as herein above described, whether such claims be based upon Owner’s alleged active or passive negligence, or participation in the wrong or upon any alleged breach of any statutory duty or obligation on the part of the Owner, the Contractor agrees to indemnify and save harmless the Owner, his agents, servants and employees, from and against any and all loss, expense, damage or injury that the Owner may sustain as a result of any such claim and the Contractor agrees to assume, on behalf of the Owner, and at his demand, the defense of any action at law or in equity, which may be brought against the Owner upon such claim and to pay on behalf of the Owner, upon his demand, the amount of any judgment that may be entered against the Owner in any such action. The Owner shall have the right to participate in such action.

      . The Treadwell’s construction contract with Hudson (Def. Hudson’s Exhibit C) provides:
      “This Agreement has been executed and and entered in New York and the validity, interpertation and performance of the Contract shall be governed by the laws of the State of New York.”

      . See Footnote 2, supra.

      . Defendant Hudson’s Exhibit C — the Construction Contract provides:
      “The scope of the work to be performed by the Contractor is as follows:—
      6. Provide and install the necessary materials required to increase the height of Stacks on #4 Power Boiler and #2 Bark Boiler by fifty feet each; . . . ."


source: Caselaw Access Project

author: KILKENNY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Edward H. INGRAM, Appellant.
    No. 72-1170.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 25, 1972.
    Decided April 10, 1973.

      Lewis A. Wenzell, San Diego, Cal., for appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, Robert A. Filpi, Asst. U. S. Attys., Chicago, Ill., for appellee.
    Before KILEY, KILKENNY and STEVENS, Circuit Judges.

       The Honorable John F. Kilkenny, Senior Circuit Judge for the Ninth Circuit, sitting by designation.

   KILKENNY, Circuit Judge:

This appeal presents an unusual background. Appellant was convicted on two counts of violating 26 U.S.C. § 4705(a) [sale of narcotics] and on two counts of violating 21 U.S.C. § 174 [dealing in narcotics]. The indictment was returned in April, 1968. In May of the same year, appellant waived a trial by jury and on May 29th, he was convicted on all four counts. Initially, the court attempted to sentence appellant under Title II of the Narcotic Addict Rehabilitation Act of 1966 for a determination of whether he was an addict and likely to be rehabilitated through treatment. On June 10th, the commitment was returned unexecuted for the reason that appellant had sustained two prior felony convictions and was, consequently, ineligible for treatment under the Act. The following June 14th, he was sentenced to imprisonment for ten years on each count, the sentences to run concurrently. Although appellant’s notice of appeal was timely, his motion to proceed in for-ma pauperis was denied in the district court. Later, he filed the same type of motion in this court. Shortly thereafter, the appeal was dismissed. Appellant then filed a 28 U.S.C. § 2255 petition requesting that the sentence be vacated on several grounds, including the claim that he was denied due process by reason of the court's failure to permit him to proceed in forma pauperis. From a denial of this motion, appellant prosecuted another appeal to this court, as a result of which the original sentences were vacated and the cause remanded to the district court for resentencing, so that the appellant might prosecute a direct appeal. Prior to re-sentencing, appellant filed several motions, including a motion for a new trial, a motion for a presentence report and probation and a motion for specifications of his prior convictions. The motions were denied and he was again sentenced to serve a period of ten years on each count, the sentences to run concurrently. From the judgment and resulting sentences, he prosecutes this appeal.

FACTS

On August 23, 1966, three Federal Narcotic Agents met an informant in a parking lot in Chicago. After the informant was searched and found not to possess money or narcotics, he and one of the agents drove to an intersection in the city where they parked and walked to the entrance of a building. The other two agents.followed in another automobile, parked across the street, where they watched the other agent and the informer enter the vestibule of the building and ring a buzzer. The agent and informer then stepped outside the building. A short time later, appellant leaned out of a third story window and stated that he would be down shortly. Within a few minutes, appellant arrived in the vestibule and was introduced to the agent by the informant. The agent said he wanted a spoon of heroin and he and appellant agreed on a price of $140.-00. The appellant then told the informant and the agent to wait and that he would return with the “stuff” in a pouch in about 45 minutes. He reappeared at about the appointed time under elevated tracks at the east end of the building and called to the agent and the informant. He told the agent to put the money under a rock and pointed to an aluminum foil package on a girder. The agent picked up the package and appellant picked up the money and started walking north through the alley under the tracks. The agent then asked for some more “stuff” and appellant told him to return Friday morning. The three narcotics agents and .the informant then drove to the Federal Building where a preliminary test was performed on the contents of the aluminum foil package. The tests indicated the presence of an opium derivative and a subsequent chemical analysis revealed the presence of heroin in .the powder.

On the following Friday morning, the agent returned to the address and rang the same buzzer. Appellant leaned out the window and told the agent to go around to the back and said he would be “down shortly.” About 15 minutes later, the agent met appellant at the rear of the building and handed him $140.00 and in return received from appellant a small aluminum foil package containing a white powder. The other two agents had observed the other agent enter the building and saw appellant lean out the window. When the’ agent walked toward the rear of the apartment, one of the other agents got out of the automobile and stood near the supports of the elevated tracks from which position he observed the meeting between appellant and the other agent. The observing agents continued their surveillance of the building for about an hour and then met the contact agent where the powder was field tested. Later, an analysis of the powder revealed the presence of heroin-hydrochloride. The appellant denied the first meeting and said that he spent the entire day at his sister’s home with her, his brother-in-law and a group of neighbors. None of the latter were called to testify. He admitted the meeting on the following Friday, but claims that he was framed by the informer. He says that the informer visited him early in the morning and persuaded him to sell “Dormin” to a narcotic addict. Appellant claims that he and the informer bought the Dormin at a nearby drugstore. The testimony of the agents and of the appellant was in direct conflict. Obviously, the trial judge believed the testimony of the agents.

ISSUES

Appellant presents for review the following issues:

(1) Adequacy of counsel.
(2) Appellant’s eligibility for probation.
(3) Constitutionality of the Narcotic Addicts Rehabilitation Act of 1966.
(4) Failure to file an information under 26 U.S.C. § 7237(c)(2).

ADEQUACY OF COUNSEL

Appellant claims that his trial attorney was so incompetent that the trial was nothing more than a farce or a mockery of justice and consequently he was denied due process. He points to five areas in which he claims his counsel’s failures violated his Sixth Amendment rights.

(1) First he claims that his attorney should have moved to dismiss the indictment on the ground that it was not returned within a reasonable time after the government was aware of the commission of the alleged crimes. We find nothing in the record which would affirmatively show that appellant was in any way prejudiced by the delay. The fact that the .delay might have been responsible for the failure to locate the informer does not establish the showing of prejudice which is required by United States v. Deloney, 389 F.2d 324 (CA7 1968), cert. denied 391 U.S. 904, 88 S.Ct. 1652, 20 L.Ed.2d 417. Also in point is United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1972).

(2) Next appellant complains of the failure of his attorney to learn the identity of the informer. There is no showing whatsoever that the testimony of the informer would have in any way assisted the appellant. Moreover, the record indicates that the prosecution attempted to find the informer, but was unsuccessful.

(3) Next appellant argues that his counsel’s failure to seek discovery of appellant’s incriminating statements rendered the convictions constitutionally infirm. He does not argue that the statements should have been suppressed, but suggests that his attorneys should have sought the statements that appellant might be better informed. There is nothing in the record to indicate that he even informed his attorney of the existence of such statements, or that he was in any way prejudiced by the failure of his counsel to ask for their production. For that matter, it would seem that the statements were made only a short time before the trial. Appellant should have remembered the substance of what he told the officers.

The record is clear that appellant was fully advised of his Miranda rights. His failure to sign the written form is not controlling where he is otherwise advised. United States v. Crisp, 435 F.2d 354 (CA7 1970), cert. denied 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116 (1971). While it might have been better practice to object to the admission of the statements, we recognize that the failure to object could have been a tactical choice on the part of the attorney. He might have noticed something in the statement which was beneficial to his client. His failure to object, on this record, does not rise to an error of constitutional stature.

(4) Here, appellant argues that his attorney should have more thoroughly investigated the physical characteristics of the area where the transactions took place. He says .that his attorney should have secured witnesses to confirm his description of the buildings and area and that such evidence would have weakened the testimony of the agents. Although one of the agent’s testimony may have been somewhat ambiguous and in conflict with the appellant’s, the record shows that appellant’s counsel thoroughly cross-examined the agent on what appeared to be the ambiguity. In these circumstances, the value of the testimony of additional witnesses confirming appellant’s viewpoint would be of little, if any, value.

(5) Finally, appellant challenges his counsel’s overall professional competence by pointing to the fact that he was not familiar with the provisions of the Narcotic Addict Rehabilitation Act of 1966 and was of the belief .that appellant was eligible for treatment under the Act. It is enough to say that the mistake was not prejudicial and, for that matter, was in favor of appellant. We doubt we should chide appellant’s counsel when the United States Attorney and the trial judge made precisely the same mistake.

We find nothing in the record which would indicate that counsel’s overall representation was such as to render the trial a sham or a mockery within the meaning of Wilson v. Phend, 417 F.2d 1197 (CA7 1969) and Sims v. Lane, 411 F.2d 661 (CA7 1969), cert. denied 396 U.S. 943, 90 S.Ct. 378, 24 L.Ed.2d 244.

PROBATION

Appellant claims that he was entitled to probation by reason of the repeal of 26 U.S.C. § 7237(d) (1964 ed. and Supp. V) by the enactment of the Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, 21 U.S.C. § 801 et seq., the effective date of the latter being May 1, 1971. The recent case of Bradley v. United States, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), resolves the issue against appellant. The district court had no authority to grant probation.

NARCOTIC ADDICT REHABILITATION ACT OF 1966

Citing Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), appellant argues that the provision of the Act barring medical treatment to those with two previous convictions is unconstitutional.

The distinction between Watson and the case before us is apparent. The Watson decision should be limited to the possession of heroin. Here, appellant was convicted of the sale of heroin. Beyond that, 18 U.S.C. § 4251(f)(2) specifically excludes from eligibility under the Act, those who are convicted of selling narcotics.

Watson has been properly limited to its own facts in the well reasoned decisions of Macias v. United States, 464 F. 2d 1292 (CA5 1972) and United States v. Turner, 337 F.Supp. 1045, 1048-1049 (D.D.C.1972), and considerably eroded, if not ignored, in United States v. Fitzgerald, 466 F.2d 377 (D.C.Cir.1972); United States v. Fersner & McElveen, 465 F.2d 605 (D.C.Cir.1972), and United States v. Leazer, 148 U.S.App.D.C. 356, 460 F.2d 864 (1972). The Second Circuit supports this view. Smith v. Follett, 445 F.2d 955 (CA2 1972). Applied to our facts the Act is constitutional.

FAILURE TO FILE INFORMATION

The United States Attorney concedes that he failed to file an information setting forth the prior convictions as required by 26 U.S.C. § 7237(c)(2). He would excuse his neglect by pointing to the fact that appellant admitted his convictions during the course of .the trial and that the convictions were set forth in an FBI report, which was before the judge prior to sentencing. He supplements this argument by saying that a certified copy of the narcotics conviction has been filed in the record before us on appeal. As we read the statute, its provisions are mandatory. Neither the admission in trial by appellant of his prior convictions, nor the mention of the convictions in the FBI record, nor the certified copy of the prior Federal Narcotics Conviction filed on appeal, can act as a substitute for the specific requirements of the statute. It has been said that the admission by a defendant in a trial of a prior conviction is the functional equivalent of a plea of guilty to a separate charge and, therefore, it should not be accepted unless the accused understands the consequences of the admission. Wright v. Craven, 461 F.2d 1109 (CA9 1972); Cancino v. Craven, 467 F.2d 1243 (CA9 1972).

Procedural integrity requires us to remand to the district court with instructions to set aside the sentences, grant the United States Attorney an opportunity to file an information pursuant to the statute and then give appellant an opportunity in open court to affirm or deny that he is identical with the person mentioned in the previous convictions; if any. The lower court may then re-sentence.

Otherwise, the judgment is affirmed.


author: MERRILL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Brad Simon BABICH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James M. JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John T. SPANN, Defendant-Appellant.
    Nos. 72-2744, 72-2697 and 72-2698.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1973.
    Rehearing Denied May 8, 1973.
    Harry E. Claiborne (argued), Oscar B. Goodman (appeared), Las Vegas, Nev., for defendant-appellant Johnson.
    Douglas G. Lohse (argued), Lohse & Lohse, Reno, Nev., for defendant-appellant Spann.
    Harry E. Claiborne (argued), Las Vegas, Nev., for defendant-appellant Babich.
    Lawrence J. Semenza, Asst. U. S. Atty. (argued), V. DeVoe Heaton, U. S. Atty., Las Vegas, Nev., Charles J. Fanning, Asst. U. S. Atty., Chief of Southwest Unit, San Diego, Cal., for the United States.
    Before MERRILL and KOELSCH, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, United States District Judge for the District of Oregon, sitting by designation.

   MERRILL, Circuit Judge:

Appellants were convicted of conspiracy to import narcotics. The sole issue on appeal is the sufficiency of an affidavit given in support of a search warrant. The validity of the warranted search is thus brought in question.

On August 4, 1971, an agent of the Nevada Department of Fish and Game discovered an airplane burning in a dry lake bed in Lander County Nevada. He radioed his warden, who notified the sheriff of Lander County in Battle Mountain, who, in turn, called his deputy in Austin. The deputy and the warden then joined the Fish and Game agent at the scene and investigated the aircraft. The deputy returned to Austin and notified the Federal Bureau of Investigation and the Federal Aviation Administration. The following day an agent of . the FBI and an agent of the FAA, accompanied by two deputy sheriffs, visited the scene and investigated the aircraft. They followed tracks leading from the scene and about two-and-one-half miles away came upon a deserted camper truck mired in mud. The back door was open and they could see a number of white sacks with Spanish words printed on them. From the interior came a strong smell of marijuana. Exercising admirable restraint, they decided to secure a search warrant. A deputy was left with the truck. The other returned to Austin where he telephoned to the sheriff and district attorney at Battle Mountain, reporting on the results of the investigations of aircraft and truck. An affidavit was then prepared by the district attorney and signed by the sheriff. In reliance on the affidavit a search warrant was issued by the justice of the peace in Battle Mountain. The sheriff returned to the mired truck at about midnight and the following day the truck was searched and marijuana was recovered.

The District Court, 347 F.Supp. 157, denied a motion to suppress and following trial and judgment of conviction this appeal was taken.

The affidavit given by the sheriff to the justice of the peace read as follows:

“George E. Schwin, being first duly sworn, deposes and says on information and belief:
1. Affiant has received reports of large-scale narcotics drops being made in southern Lander County.
2. That on or about August 4,1971, an aircraft was observed burning in a Dry Lake near Grass Valley in Lander County and investigation showed the fire to be of incendiary origin. Investigation also showed a portion of the unbumed part of the aircraft cabin to contain small quantities of what appeared to be a dangerous drug, to-wit marijuana.
3. That the type of aircraft involved had sufficient fuel capacity and carrying capacity to be used for large-scale transportation or importation of marijuana or other illicit drugs, and the quantity of gas in the aircraft fuel tanks indicated that a flight had been made of approximately 1000 miles, which distance is sufficient to represent a flight from Mexico. That the aircraft had been stripped of cargo and tire tracks led from the location on the dry lake where the aircraft had disabled its landing gear.
4. That investigation further showed that the disablement of said aircraft occurred on landing and the tire tracks aforesaid led to a 1960 White International Pickup. Lie. No. WA 0882, 1971 License sticker No. 927641.
5. That earlier reports of a vehicle or vehicles traveling in the area round the time the aircraft was discovered indicated a Washoe County tag.
6. That there is in said vehicle, and apparent from external inspection several bags, plastic, of the sort used to transport marijuana and said bags contain what appears to be Mexican writing thereon.
7. That said bags, if marijuana, would contain approximately 200 pounds of said drug and said drug in that condition emits a characteristic sweet smell such as the odor coming from said pickup.
8. Said pickup and the contents thereof therefore constitute evidence that shows or tends to show that a public offense has been committed or that the above named defendants or others committed a public offense.
Wherefore, affiant asks that a search warrant be issued for the above named 1960 White International Pickup and its camper and the environs of the downed aircraft and camper for marijuana or other dangerous drugs, any paraphernalia used in connection therewith and for any . firearms or other equipment used or useful in the distribution and dissemination of dangerous drugs.
/s/ GEORGE E. SCHWIN George E. Schwin”

Relying upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), appellants attack the sufficiency of the affidavit upon the ground that it is entirely given upon information and belief and fails to disclose the identity of the informant and the basis for a belief that he was reliable.

In denying motion to suppress the District Court stated:

“I think it is apparent and implied in this affidavit that the information came to this affiant from other law enforcement officers who were engaged in an investigation.”

We agree. In United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684 (1965), the Court stated:

“ * * * upon reading the affidavit as a whole, it becomes clear that the detailed observations recounted in the affidavit cannot fairly be regarded as having been made in any significant part by persons other than full-time Investigators of the Alcohol and Tobacco Tax Division of the Internal Revenue Service. Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”

In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court found detail lacking in the affidavit; but at the same time the Court pointed to Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), as a case where “A magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way.” Spinelli v. United States, 393 U.S. 410, 417, 89 S.Ct. 584, 589 (1969).

Here the nature and detail of the disclosures of the “investigation” — as to the incendiary origin of the aircraft fire, as to the nature of the disablement of the aircraft, as to its fuel and carrying capacity, and the quantity of fuel in its tank — all strongly indicate that the investigation was official.

Judgment affirmed.

      . Other issues were argued which we do not find it necessary to reach.


author: SIMPSON, Circuit Judge: GOLDBERG, Circuit Judge

text:
    Elizabeth Ann DUKE et al., Plaintiffs-Appellees, v. The STATE OF TEXAS et al., Defendants-Appellants.
    No. 71-2845.
    United States Court of Appeals, Fifth Circuit.
    April 20, 1973.
    Rehearing and Rehearing En Banc Denied June 19, 1973.

      Crawford C. Martin, Atty. Gen. of Tex., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., Ralph Mann, Asst. City Atty., Denton, Tex., for defendants-appellants.
    Sylvia A. Demarest, Dallas, Tex., Michael J. Whitten, Denton, Tex., for plaintiff s-appellees.
    Before GOLDBERG, DYER and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

This case involves the recurring and complex problem of the narrow circumstances in which a federal court may enjoin ongoing state judicial proceedings. The lower court issued an injunction restraining the enforcement of an existing state court injunctive order which forbade appellees from speaking upon or entering upon the campus of North Texas State University. Duke v. Texas, E.D.Tex., 1971, 327 F.Supp. 1218. Because the proper disposition of this appeal turned, in part, on the long disputed, never settled question of whether the Civil Rights Act of 1871, Title 42, U.S.C., Section 1983, constitutes an express exception to the broad Congressional policy that federal courts shall not enjoin state proceedings, Title 28, U.S.C., Section 2283, we initially withheld adjudication in this case pending Supreme Court review of that question. Caréful study of the Supreme Court’s opinion in Mitchum v. Foster, 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705, constrains us, despite the holding of 'that case, to reverse the judgment below.

The facts of this ease are fully set out in the opinion below, 327 F.Supp. 1218 but a brief survey will help delineate the precise issue before us. On February 9, 1971, Herb Ninness, a student at North Texas State University, Denton, Texas, began discussions with appellees, Elizabeth Ann Duke and David Haylon, neither of whom were students at the University, concerning the possibility of appellees speaking on campus at a rally to protest United States military activities in Southeast Asia planned for February 17, 1971. The same day, the North Texas State Student Senate passed a resolution, designated as Bill No. DEM 46, to “support” the rally. On February 11, Ninness told the President’s Cabinet of Student Senate “support” for the rally, and of plans to invite appellees as outside speakers. The Cabinet then denied the request to permit outside speakers on the grounds that the rally was not “sponsored” by the Student Senate or any other recognized campus organization. On February 16, the President of the Student Senate vetoed DEM 46. The Senate then passed a resolution “sponsoring” the rally for the next day, and inviting outside speakers including the appellees to speak at the rally. The Senate President vetoed this second resolution. At the Senate meeting, University Vice President for Student Affairs, William Lindley, discussed the various University regulations governing the use of campus facilities and the presentation of outside speakers. Meanwhile, as events escalated University officials were seeking legal advice concerning ways to control the scheduled demonstration. That evening, appellee Haylon stated in a radio interview that he intended to speak at the rally next day.

On the morning of the 17th, a delegation of students appeared before the President’s Cabinet and requested that the demonstration be allowed to proceed despite University rules to the contrary. The University President refused to suspend school rules, but stated that the University regulations applied only to the presence of unsponsored “outside” speakers on campus, not to the discussion of important issues by students alone. The University President then authorized the University Chief of Security Police, Tom Martin, to seek injunctive relief in the state courts.

With the assistance of the County Attorney of Denton County, an application for injunctive relief was prepared and presented to Judge Robert Scofield, District Judge of Denton County. Following a brief ex parte hearing, Judge Scofield issued a temporary restraining order prohibiting Mrs. Duke and Mr. Haylon from entering upon the campus of North Texas State University. Meanwhile, the rally had begun at noon, as scheduled. About 12:30 P.M. the sheriff served the temporary restraining order upon Mrs. Duke. Service upon Mr. Haylon was not accomplished at this time. Both plaintiffs subsequently spoke at the rally, Mrs. Duke reading to the crowd from the papers which had been served upon her. The following morning, the sheriff arrested Mrs. Duke and Mr. Haylon for contempt of court. At the same time the temporary restraining order was served on Mr. Haylon.

Following a hearing on February 24 and 26 and March 4, 1971 Judge Scofield granted a permanent injunction against Mrs. Duke and Mr. Haylon. Judge Scofield also found Mrs. Duke guilty of contempt for remaining at the rally after service of the temporary restraining order and found Haylon guilty of contempt for entering the University campus during a snowball fight at a later date. On March 26, 1971, Judge Scofield signed the order for the permanent injunction.

Meanwhile, appellees Duke and Haylon had sought to invoke the aid of the federal courts. On February 24, 1971 appellees filed the instant action in the lower court alleging that the issuance and enforcement of the state court order was depriving them of their rights to free speech under the First and Fourteenth amendments. The complaint sought federal relief, under Title 42, U.S.C., Section 1983, for alleged deprivations of federal constitutional rights committed by the State of Texas; the lower court did not grant any temporary relief, and service of process upon the defendants-appellants was not completed until after Judge Scofield had orally announced his decision to issue a permanent injunction. The lower court held a series of hearings and conferences, and on May 26, 1971, issued an opinion and order. 327 F.Supp. 1218. The lower court issued an injunction restraining the enforcement of Judge Scofield’s injunction, and declared sections of the Texas Code and North Texas State University Regulations unconstitutional or unconstitutional as applied to plaintiffs-appellees. This appeal is taken from the federal court injunction.

DISCUSSION

The court in this ease issued its permanent injunction under the purported authority of Title 42, U.S.C., Section 1983 which empowers federal courts to vindicate federal constitutional rights on a broad front. In Mitchum v. Foster, supra, the Supreme Court held that Title 42, U.S.C., Section 1983 is an express exception to the Congressional policy, as expressed in the anti-injunction statute, Title 28, U.S.C., Section 2283, that federal courts shall not grant an injunction to stay proceedings in a state court. The fact that Title 28, U.S.C., Section 2283 does not bar federal injunctions issued under the authority of Title 42, U. S.C., Section 1983 is only the beginning, not the end of our inquiry into the propriety of federal court intervention in ongoing state proceedings such as occurred below. The Mitchum court itself ended with a caveat that the effect of Title 42, U.S.C., Section 1983 upon Title 28, U.S.C., Section 2283 should not conclude our analysis:

“In so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and its companion cases.” 407 U.S. at 243, 92 S.Ct. at 2162, 32 L.Ed.2d at 718.

Here, while the lower court correctly anticipated Mitchum’s express exception decision, it acted without the benefit of the Supreme Court’s warning in Mitchum v. Foster, supra. The lower court’s action occurred also without the benefit of our own supervening decision in Palaio v. McAuliffe, 5 Cir., 1972, 466 F.2d 1230, and erroneously concluded that “the strict non-interference doctrine elucidated in Younger and its companion cases is limited to State criminal prosecutions . . .” 327 F.Supp. at 1233. As this Court made clear in Palaio v. McAuliffe, supra, however, “the application of the principles of Younger should not depend upon such labels as ‘civil’ or ‘criminal,’ but rather should be governed by analysis of the competing interests that each case presents.” 466 F.2d at 1232-1233.

We iterate that the Younger principles of equity, comity and federalism apply to federal intervention in state “civil” as well as “criminal” proceedings, even where the exercise of First Amendment rights is involved; two of our sister Circuits have so held, Cousins v. Wigoda, 7 Cir. 1972, 463 F.2d 603, application for stay denied, 409 U. S. 1201, 92 S.Ct. 2610, 34 L.Ed.2d 15 (Rehnquist, Circuit Justice); Lynch v. Snepp, 4 Cir. 1973, 472 F.2d 769. In Younger, the Supreme Court made it clear “that the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.” 401 U.S. at 45, 91 S.Ct. at 751, 27 L.Ed.2d at 676. This interdiction of federal interference in state judicial proceedings is based on federalism concepts of comity and respect for state functions, op. cit. 401 U. S. at 44, 91 S.Ct. at 750, 27 L.Ed.2d at 675-676. In order to overcome it two express pre-conditions must be shown before relief may be granted to a federal plaintiff. First, the moving party must demonstrate that he will suffer irreparable injury if the federal court stays its hand, and second the moving party must demonstrate that he does not have an adequate remedy at law in the state courts, op. cit. 401 U.S. at 43-44, 91 S.Ct. at 750, 27 L.Ed.2d at 675.

Despite determining for itself that the federalism principles of Younger are applicable only to strictly criminal prosecutions, the court below proceeded to apply those two principles to the case at hand:

“Thus, plaintiffs Duke and Haylon are subject to a wholesale abridgement of their rights to freedom of speech, press, assembly, and association, which inherently constitutes continuing irreparable injury. The damage suffered by plaintiffs is compounded by the fact that their current inability to communicate fully with their intended audience, North Texas State University students, results in reduced income which, of course, hinders further exercise of the whole range of First Amendment rights. The plaintiffs here are suffering ‘genuine and irretrievable damage.’ . And they are suffering this damage without any adequate remedy at law, as evidenced by the State district court’s refusal to consider the constitutional issues, until the course of the State’s judicial processes have run to conclusion.” 327 F.Supp. at 1234.

Was the lower court correct in its application of Younger principles to the facts before it? We address that question.

In issuing its temporary restraining order against Duke and Haylon, the state trial court was proceeding under the authority of Article 466a, Vernon’s Ann.Penal Code of Texas, which provides :

Art. 466a. Acts calculated to produce injury or damage to property, person or life of another person; injunctive relief.
Section 1. Every person who, at a time and place and under circumstances reasonably calculated to produce a clear and present and immediate threat or danger to the physical well-being, property or life of another, knowingly and willfully commits an act, or urges another to commit an act, so calculated and tending to produce injury or damage to the property, person or life of another person, shall be guilty of a misdemeanor punishable by a fine of not more than $2,000, or a jail sentence of not more than two (2) years, or by both such fine and jail sentence.
See. 2. In all cases where such actions are threatened, the State by and through its County or District Attorney, may have injunctive relief as an additional sanction against all who are so threatening to commit such unlawful act or acts. Where such actions are threatened in, on, or against any state agency, or property thereof, the Attorney General may institute such proceedings. All such injunctive proceedings shall be in the name of the State of Texas and be guided by the rules of other injunction proceedings. No bond shall be required.
Acts 1967, 60th Leg., p. 800, ch. 333, emerg. eff. June 3, 1967.
(Emphasis added)

Thus, even though the state court issued process which is normally denominated “civil,” that court was in fact granting a remedy which the legislature of Texas had provided as part of a comprehensive scheme for the enforcement of the Texas Penal Code. The fact that the Texas State court was proceeding under a statute which authorizes injunctive relief in aid of the enforcement of the state’s criminal laws brings this ease squarely within the teachings of this Court in Palaio v. McAuliffe, supra. Palaio dealt with the propriety of federal intervention in a Georgia injunctive proceeding which was a civil technique for enforcing Georgia’s criminal prohibition against the distribution of obscene materials. In affirming the denial of federal relief this Court stated that “ . . . when federal anticipatory relief will significantly affect a state’s enforcement — by whatever means — of its criminal laws, then such relief is barred by the strong policy of noninterference, unless the plaintiff can meet the heavy burden of proof that Younger imposes.” 466 F.2d at 1233.

In issuing its permanent injunction against Duke and Haylon, to enforce Article 2919j, Vernon’s Ann.Civ.Stat. of Texas and the regulations of North Texas State University, the state trial court may have exceeded the authority conferred by Article 466a, Vernon’s Ann.Penal Code of Texas. But this does not alter our conclusion that the principles of Palaio required the plaintiffs-appellees here to meet the pre-conditions of Younger before being entitled to invoke the aid of a federal court.

First, Article 2919j, Vernon’s Ann. Civ.Stat. of Texas, Section 2, note 5, supra, contains a criminal penalty for the violation of the entire statute as well as for the violation of any rule or regulation validly promulgated under the statute, and thus injunctive enforcement of that statute and rules and regulations promulgated thereunder also constitutes injunctive enforcement of state criminal law.

Second, and of paramount importance, the state district court had already acquired jurisdiction over the controversy between the parties here by issuance of. its preliminary injunction under the authority of Article 466a, Vernon’s Ann. Penal Code of Texas, before any application was made to the federal district court. It is a time-tested rubric of our federalism that:

“Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other, until its duty is fully performed and the jurisdiction invoked is exhausted ; and this rule applies alike in both civil and criminal cases.” Taylor v. Taintor, 1873, 16 Wall. (83 U.S.) 366, 370, 21 L.Ed. 287, 290.

This principle is an integral part of the principles of federalism enunciated in Younger. Its application here dictates that since the state court acquired prior jurisdiction to enforce state criminal law by injunctive remedy, the nature of the state court’s jurisdiction should be viewed as of the time that jurisdiction was assumed. Since the initial and continuing jurisdiction of the state court was to enforce through injunctive relief the criminal laws of the State of Texas, Palaio, requires this Court to determine whether or not plaintiffs here overcame the heavy burdens imposed upon them by Younger — demonstrated irreparable injury and an inadequate remedy at law in the state courts. Younger v. Harris, supra, 401 U.S. at 43-44, 91 S.Ct. at 750, 27 L.Ed.2d at 675.

As used in Younger, the concept of “irreparable injury” in the context of federal intervention in state proceedings is a term of art. First, the mere possibility that the state court order might tend to “chill” First Amendment rights is not in itself sufficient to justify federal intervention, Id. at 52-53, 91 S.Ct. at 754, 27 L.Ed.2d at 679-680. Second, Duke and Haylon were required only to assert their federal constitutional rights in a single state injunction proceeding, brought in apparent good faith, to enforce a facially constitutional state statute. As Younger emphasizes, “the threat to the plaintiff’s federally protected rights must be one that cannot be eliminated by his defense against a single prosecution.” Id. at 47, 91 S.Ct. at 751, 27 L.Ed.2d at 676-677. Finally, even in the area of First Amendment rights, special circumstances such as bad faith and harassment — circumstances such as those present in Dombrowski v. Pfister, 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 — must be present before a federal court may intervene in an ongoing state proceeding. Younger v. Harris, supra, 401 U.S. at 49-51, 91 S.Ct. at 753-754, 27 L.Ed.2d at 678-679, cf. Cameron v. Johnson, 1968, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182. There is no showing on this record of bad faith, harassment, or any other special circumstances which would justify federal intervention in this case.

We turn then to the adequacy of Duke and Haylon’s remedies in the courts of Texas. In Texas, a permanent injunction is appealable as a final order, Article 2249, Vernon’s Ann.Civ.Stat. of Texas, see 31 Tex.Jur.2d 326-327. Whatever may have been the impediment to appeal of the initial state temporary restraining order issued against Duke and Haylon, the state district court had issued a final appealable permanent injunction two months before the federal court here issued its order restraining the enforcement of the state court order. Thus, the federal court here intruded itself into the processes of state litigation at a time when an adequate appellate remedy was available in the state courts. Such intrusion was improper as disruptive to the delicate balance between federal and state courts implicit in traditional concepts of comity and federalism. As representative of the dominant partner in the necessary interplay between the two sovereigns, federal courts must be especially sensitive to this balance and assiduous in its preservation. These goals were disregarded in this case.

The plaintiffs below made no effort to utilize orderly state court procedures before resort to the federal system. The refusal by the state trial court to consider Duke and Haylon’s federal constitutional claims, see note 4, supra, did not alter the duty to pursue state remedies. Mere errors or mistakes by the state trial court are not special circumstances which justify federal intervention, cf. Lynch v. Snepp, supra, 472 F.2d at 775-776. Other courts have indicated that failure to pursue state appellate remedies is a factor to be considered in refusing federal intervention in an ongoing state civil proceeding, Lynch v. Snepp, supra, 472 F.2d at 775-776; cf. Cousins v. Wigoda, supra, 463 F.2d at 607-608. A party may not invoke the aid of a federal court, alleging that his state remedies are inadequate, without having first tested the sufficiency of those remedies and having found them to be wanting.

Stripped to its essentials the situation here is that the plaintiffs below invoked the jurisdiction of a United States district court to review the judgment of a state trial court. In Rooker v. Fidelity Trust Co., 1923, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362, the Supreme Court expressly disapproved any such practice

“ — If the constitutional questions stated in the bill actually arose in the cause, it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication. Elliott v. Peirsol, 1 Pet. 328, 340, 7 L.Ed. 164; Thompson v. Tolmie, 2 Pet. 157, 169, 7 L.Ed. 381; Voorhees v. Bank of United States, 10 Pet. 449, 474, 9 L.Ed. 490; Cornett v. Williams, 20 Wall. 226, 249, 22 L.Ed. 254; Ex parte Harding, 120 U.S. 782, 7 S.Ct. 780, 30 L.Ed. 824. Under the legislation of Congress, no court of the United States other than this court could entertain a proceeding to reverse or modify the judgment for errors of that character. Judicial Code, § 237, as amended September 6, 1916, c. 448, § 2, 39 Stat. 726. To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original.”

263 U.S. at 415-416, 44 S.Ct. at 150, 68 L.Ed. at 365. The way was open for Duke and Haylon to assert their federal claims through final decision by Texas courts and thereafter to seek review in the United States Supreme Court under the provisions of Title 28, U.S.C., Section 1257. The district court erred in not relegating them to this course. Cf. Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, 1970, 398 U.S. 281, 296, 90 S.Ct. 1739, 1748, 26 L. Ed.2d 234, 246; Warriner v. Fink, 5 Cir. 1962, 307 F.2d 933, 936.

CONCLUSION

As required by the principles of equity, comity, and federalism enunciated by Younger v. Harris, supra, and applied by this Court to state injunctions in aid of state criminal statutes in Palaio v. MeAuliffe, supra, the court below should not have entertained this suit, but should have allowed the then active litigation to progress in orderly fashion through the state courts. The district court upon remand is directed to vacate its injunctive decree and dismiss the complaint.

Reversed and remanded.

GOLDBERG, Circuit Judge

(specially concurring):

I concur in the result for the following reasons. Plaintiffs have neither alleged nor proven that available state procedures were inadequate to vindicate their federal constitutional rights and to prevent those rights from suffering irreparable harm. Instead of seeking state court review of the state court’s injunction, and without alleging that state review would have been inadequate to prevent irreparable harm, plaintiffs did, in fact, as the majority points out, obtain in the federal district court what amounts to appellate review of the state court’s action. I do not read the majority’s opinion here, nor the opinion in Palaio v. McAuliffe, nor even the opinions in the Younger v. Harris cases, as prohibiting federal injunctive relief against state judicial proceedings where there is a showing that use of state procedures will be inadequate to protect federal rights, i.e., where irreparable harm would otherwise occur. Indeed, Mitchum v. Foster, decided after Younger v. Harris, expressly recognized the existence of such a remedy.

Had these plaintiffs shown that the state procedures for review were inadequate to safeguard their rights, because of delay or for any other reason, I believe federal relief would clearly have been warranted on the facts of this case, and I do not read the majority as saying otherwise. The Younger v. Harris sextet requires at least some showing that if available state procedures are followed, irreparable harm will not be prevented. No such showing was made here.

I have no doubt that the state injunction went far beyond the “chilling effect” present in Dombrowski v. Pfister and that First Amendment expressional freedoms were unquestionably frozen here. See Note, 50 Texas L.Rev. 170 (1971). I also have no doubt that a federal remedy would have been appropriate had plaintiffs shown that a thaw could not have been obtained in state court that would have adequately prevented irreparable First Amendment harm from occurring. If that result is not to obtain, the February sextet will have become an orchestra of oppressive proportions. The federal forum continues, as it must, to play a rightful role in the vindication of federal constitutional rights. The First Amendment is still audible, but before the extraordinary remedy of federal intervention in state court proceedings may be invoked, there must be a showing that the federal action is necessary to safeguard those rights. Because such a showing is totally lacking here, I concur in this reversal.

      . The order of the lower court is in part as follows:
      Having concluded that federal district courts do have the power to provide equitable and other proper relief, e. g. declaratory judgment, 28 U.S.C.A. §§ 2201-2202, Zwickler, supra [Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444], and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971), to redress deprivations in violation of Section 1983 rights, I deem the following to be the appropriate responses to the plaintiffs’ various prayers for relief:

      (2) The temporary restraining order and the resulting contempt conviction of Mrs. Duke are declared to have been constitutionally invalid.
      (3) The university’s policies concerning outside speakers are declared to be violative of the First and Fourteenth Amendments.
      (4) Campus Security Regulation 3g and its source, Article 2919j, are declared to be unconstitutionally vague and overbroad.
      (5) It is declared that Article 466a was unlawfully and unconstitutionally applied to the plaintiffs in the circumstances of this case.
      (6) The enforcement by the State of Texas of the permanent injunction against plaintiffs Haylon and Duke, signed on March 26, 1971, by Judge Robert Scofield, is enjoined, from and after this date.
      It is so ORDERED.
      SIGNED and ENTERED this 26th day of May, 1971 '
      /s/ Wm. Wayne Justice
      UNITED STATES DISTRICT JUDGE

       Again excluding contention (1).

      . The state district court Temporary Restraining Order provided in part:
      “ * * * it is therefore ORDERED, ADJUDGED and DECREED that defendants be and they are hereby restrained from: '
      “(A) Coming onto any of the property owned and controlled by North Texas State University and from coming into any of the buildings or facilities on the campus of North Texas State University; (B) Obstructing the use, enjoyment, ingress or egress of the facilities and buildings of North Texas State University; (C) Committing assault or injuries upon any persons at any of the facilities or on any property of North Texas State University; (D) Damaging or injuring any property whatsoever of North Texas State University; (E) Urging other persons to commit an act calculated intending to produce injury or damage to property, person, or life of other people and insighting [sic] any person to participate in any riot or civil disturbance; (F) Participating in and insighting [sic] mob violence, rioting disturbance and urging other persons to participate in and incite violence, rioting ' and civil disturbance; (G) Disrupting the normal educational and social activity of North Texas State University or urging other persons to commit any act calculated intending to disrupt the normal educational and social activities of North Texas State University.”

      . Article 466a, Vernon’s Ann.Penal Code of Texas was upheld as constitutional on its face in Locke v. Vance, S.D.Tex.1969, 307 F.Supp 439 (three judge district court). Thus, there can be no suggestion here that the lower court was dealing with a flagrantly and patently unconstitutional statute, a situation which the . Supreme Court in Younger intimated might constitute an extraordinary circumstance justifying federal intervention without a preliminary showing of the bad faith and harassment necessary to constitute irreparable injury. 401 U.S. at 54-55, 91 S.Ct. at 755, 27 L.Ed.2d at 681.

      . The permanent injunction of the state district court provided in part:
      “ * * * and the Court being of the opinion that whereas constitutional questions could be raised on appeal and no emergency existed to necessitate a ruling by the Court on any constitutional question, the Court made no ruling relative thereto; and the Court finding that a permanent injunction should issue, the same is hereby issued, and
      “It is ORDERED, ADJUDGED and DECREED that the Defendants David Haylon and Betty Ann Duke, be, and they are each hereby permanently enjoined from, and that each of them shall desist from coming onto or remaining on any of the property owned and controlled by North Texas State University and from coming into any of the buildings or facilities on the campus of North Texas State University for the purpose of addressing student assemblies or for any purpose without first complying with university regulations . . .”

      . Article 2919j, Vernon’s Ann.Civ.Stat. of Texas, Repealed by Acts 1971, 62nd Leg., p. 3319, ch. 1024, art. 1, Sec. 3, eff. Sept. 1, 1971, provided in pertinent part:
      “Section 1. All of the general and criminal laws of the state are declared to be in full force and effect within the areas under the control and jurisdiction of the state institutions of higher education of this state.
      “Section 2. * * * Any person who violates any of the provisions of this Act or any rules or regulation of any governing board of any state institution of higher education of this state promulgated under the authority of this Act shall upon conviction thereof be punished by a fine of not more than $200.
      * * * * *
      “Section 4. It shall be unlawful for any person to trespass upon the grounds of any of the institutions of higher 'education of this state or to damage or deface any of the buildings, statutes, (sic), monuments, memorials, trees, shrubs, grasses or flowers on the grounds of any of the state institutions of higher education.
      * * * * *
      “Section 8. The judge of a municipal court or any justice of the peace of any city or county where property under the control and jurisdiction of state institutions of higher education of this state is located is each hereby separately vested with all jurisdiction necessary to hear and determine criminal cases involving violations hereof where the punishment does not exceed a fine of $200.
      “Section 9. The governing boards of the respective state institutions of higher education or their authorized representatives shall be vested with authority to refuse to allow persons having no legitimate business to enter upon any property under the control and jurisdiction of any state institution of higher education of this state and to eject any undesirable person from said property upon their refusal to leave peaceably upon request. Authority is given to require identification of any person upon the property of any of the state institutions of higher education.
      "Section 10. Notwithstanding any of the provisions of this Act, all officers commissioned by the governing boards of the respective state institutions of higher education of this state may be authorized and empowered by the respective board to enforce rules and regulations promulgated by the Board. Nothing herein is intended to limit or restrict the authority of each institution to promulgate and enforce appropriate rules and regulations for the. orderly conduct of the institution in carrying out its purposes and objectives or the right of separate jurisdiction relating to the conduct of its students and personnel.”

      . Texas maintains a distinction between the appealability of a temporary restraining order and the appealability of a preliminary injunction similar to that found in the federal system, compare 31 Tex.Jur. 2d 325-326, 340, with Title 28, U.S.C. Sec. 1292(a)(1). See further Wright, Law of Federal Courts, Second Edition, Section 102, p. 458; Smith v. Grady, 5 Cir. 1969, 411 F.2d 181; Connell v. Dulien Steel Products, 5 Cir. 1957, 240 F.2d 414.

      . We do not have here a case where federal plaintiffs, prior to bringing their federal action, have in fact exhausted orderly state court trial and appellate procedures and have been refused consideration of their federal constitutional claims. Nor, of course do we have a case where having voluntarily submitted federal constitutional claims to state courts, disappointed litigants seek to relitigate the constitutional issue in a federal court. See Brown v. Chastain, 5 Cir. 1969, 416 F.2d 1012, cert. denied 1970, 397 U.S. 951, 90 S.Ct. 976, 25 L.Ed.2d 134.

      . The briefs filed on behalf of the State of Texas state the problem as follows:
      “No effort was ever made by the complainants to seek any modification or review within the state court system. No appeal was taken. No application was made to the Texas Court of Civil Appeals or to the Texas Supreme Court to seek extraordinary relief. No application was made in the state trial court to try to obtain any alteration, clarification or expanded definitive ruling.

        " . . . .
      “It is significant to note again at this point that counsel for complainants made no effort to continue anything in Texas courts. Many further remedies, both legal and equitable, were still available in the trial court, the Texas Court of Civil Appeals (an intermediate appellate court with substantial equitable powers), and in the Texas Supreme Court (the court of last resort within the state and having broad equitable powers).”

      . 5 Cir. 1972, 466 F.2d 1230. The Palaio decision distinguished and did not question Hobbs v. Thompson, 5 Cir. 1971, 448 F.2d 456, where we stated that “exhaustion of state judicial remedies is not a prerequisite to the invocation of federal relief under section 1983 . . .” 448 F.2d at 461. The question in the instant case is not whether state remedies should have been exhausted as much as it is whether a federal injunction against state proceedings was necessary to protect federal rights.

      . The six companion cases were Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688; Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L.Ed.2d 696; Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701; Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781; and Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792.

      . See generally Fiss, Injunctions at 27-74.

      . 1972, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705. Holding that 42 U.S.C. § 1983 is an “expressly authorized exception” to the Anti-Injunction Act, 28 U. S.C. § 2283, the Court stated:
      “The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law ‘whether that action be executive, legislative or judicial.’ Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676, 679. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a ‘suit in equity’ as one of the means of redress. And this Court long ago recognized that federal injunctive relief against a state court proceeding can in some circumstances be essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights. . . . ”
      407 U.S. at 242, 92 S.Ct. at 2162, 32 L. Ed.2d at 717.

      . The Court in Younger v. Harris, supra note 3, reproduced the language in Dombrowski v. Pfister, infra note 8, that suggests that delay in obtaining appellate disposition may be a sufficient “extraordinary circumstance” justifying federal intervention to prevent irreparable harm:
      “But the allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss of or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.”
      401 U.S. at 48-49, 91 S.Ct. at 753, quoting from Dombrowski v. Pfister, 380 U.S. at 485-486, 85 S.Ct. 1116. See also Sedler, infra note 9, at 40-42, 46-56.

      . Plaintiffs have not alleged or shown that they would encounter any delay whatsoever in obtaining state review of the state court’s injunction.

      . 1965, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22.

      . Much has already been written regarding the potential impact of the Younger v. Harris cases. See, e. g., Sedler, Dombrowski in the Wake of Younger: The View from Without and Within, 1972 Wisc.L.Rev. 1; Note, 40 Cincinnati L.Rev. 613 (1971); Comment, Federal Injunctive Relief: What Remains after Younger v. Harris?, 60 Ky.L.J. 216 (1971); Comment, Federal Injunctive Relief Against State Court Proceedings: From Young to Younger, 32 La.L.Rev. 601 (1972); Note, 25 U.Miami L.Rev. 506 (1971); Comment, 17 N.Y.L.F. 652 (1971); Note, 1972 Wisc.L.Rev. 257. Compare Maraist, Federal Injunctive Relief Against State Court Proceedings: The Significance of Dombrowski, 48 Texas L.Rev. 535 (1970), with Maraist, Federal Intervention in State Criminal Proceedings: Dombrowski, Younger, and Beyond, 50 Texas L.Rev. 1324 (1972). Compare Shevin, Federal Intrusion in State Court Proceedings, 1972 Utah L.Rev. 3, with Gilbert, Questions Unanswered by the February Sextet, 1972 Utah L.Rev. 14. See also Comment, Exceptions to the Anti-Injunction Statute, 21 Am.U.L.Rev. 395 (1972); Comment, Federal Courts: New Limitations on Injunctive Relief, 23 U.Fla.L.Rev. 416 (1971); Note, 18 Loyola L.Rev. 207 (1971); Comment, The Federal Anti-Injunction Statute, 8 Wake Forest L.Rev. 107 (1971); Comment, The Civil Rights Act of 1871 versus The Anti-Injunction Statute: The Need for a Federal Forum, 1971 Wash.U.L.Q. 625.

      . See generally Kennedy & Schoonover, Federal Declaratory & Injunctive Relief Under the Burger Court, 26 SW.L.J. 282 (1972); Note, Equity on the Campus: The Limits of Injunctive Regulation of University Protest, 80 Yale L.J. 987, 993-1027 (1971). See, also Note, Collateral Attack of Injunctions Restraining First Amendment Activity, 45 So.Cal.L.Rev. 1083 (1972).


author: MEHAFFY, Circuit Judge.

text:
    BAUM ASSOCIATES, INC., a corporation, Appellee, v. SOCIETY BRAND HAT COMPANY, a corporation, Appellant. BAUM ASSOCIATES, INC., a corporation, Appellant, v. SOCIETY BRAND HAT COMPANY, a corporation, Appellee.
    Nos. 72-1253, 72-1256.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 13,1973.
    Decided April 19, 1973.
    Rehearing Denied May 11, 1973.

      Richard S. Marx, Clayton, Mo., for Society Brand Hat Co.
    Charles Alan Seigel, St. Louis, Mo., for Baum Associates.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY and HEANEY, Circuit Judges.
   MEHAFFY, Circuit Judge.

This is a diversity action by a New York corporation, Baum Associates, Inc., against a Missouri clothing manufacturer, Society Brand Hat Company, to recover commissions allegedly due plaintiff for the procurement of customers for defendant. In the district court defendant Society Brand argued that plaintiff’s claims for commissions (1) were barred by the statute of limitations ; (2) were barred by the statute of frauds; and (3) were excessive because they included commissions on an account not actually procured by the plaintiff. The trial court, with The Honorable H. Kenneth Wangelin presiding, heard the matter without a jury and rendered judgment in favor of plaintiff for most of the commissions sought in the complaint. Baum Associates, Inc. v. Society Brand Hat Co., 340 F.Supp. 1158 (E.D.Mo.1972). Defendant has appealed from the judgment in favor of plaintiff, and plaintiff has cross-appealed for recovery of that portion of the commissions not allowed by the district court. For the reasons stated below we affirm the judgment of the district court.

The background facts of this case have already been reported in some detail in the district court’s opinion. We will therefore limit our discussion of the facts to a summary of the elements necessary to our decision.

The issues presented in this appeal arise out of three separate contracts between plaintiff and defendant. The first contract is a formal written agreement in which plaintiff agreed to solicit McGregor-Doniger, Inc. as a customer for defendant and defendant agreed to pay plaintiff a 60?! commission for each dozen pair of trousers thereafter delivered by defendant to McGregor. The second contract is similar to the first, except that: (1) it involved the solicitation of Campus Sportswear, Inc.; (2) the commission agreed upon was 30^ per dozen; and (3) the agreement was not reduced to writing in a single formal document. The third contract is also similar to the first except that: (1) the contract dealt with the solicitation of Comus, Inc.; (2) the commission was 25?! per dozen; and (3) the contract was not reduced to a single written instrument.

The findings of fact of the district court reflect that each of the three customers was solicited and procured by plaintiff for defendant. The trial court also found that defendant manufactured trousers for each of the customers and paid plaintiff commissions on the production until August 1963. On August 13, 1963, however, defendant wrote plaintiff a letter purporting to terminate all of their contracts. No further commissions were paid by defendant to plaintiff after this letter of termination. Plaintiff refused to accept defendant’s attempted termination and on April 2, 1970 filed this action.

The first problem presented in this appeal is the selection and application of the appropriate statute of limitations. The parties agree that Missouri law is controlling but they disagree over which Missouri limitation should be applied. In its cross-appeal plaintiff argues that the ten year limitation for actions on written promises to pay, Rev.Stat.Mo. § 516.110(1) (1969), V.A.M.S., should be used. Defendant contends that the five year statute, Rev.Stat.Mo. § 516.120(1) (1969), Y.A.M.S., is applicable. We agree with the district court and the defendant that the five year statute should be applied. The pleadings in the trial court and on appeal clearly indicate that plaintiff’s cause of action is not one upon a written promise to pay as contemplated in the ten year statute. See Martin v. Potashnick, 358 Mo. 833, 217 S.W.2d 379 (1949).

Having determined that the five year limitation is controlling, a more difficult problem arises in the application of the statute. Defendant argues that the contracts in dispute were contracts in perpetuity and therefore were terminable at will, or at least after a reasonable time. Superior Concrete Accessories v. Kemper, 284 S.W.2d 482 (Mo.1955). Given this terminability, defendant contends that plaintiff’s cause of action (if it had any) accrued as of the August 13, 1963 letter of termination and was barred five years thereafter. The district court agreed that the defendant was entitled to terminate the contracts at will insofar as they authorized plaintiff to solicit new customers or to service existing accounts for defendant. The court also held, however, that the defendant could not terminate at will the plaintiff’s right to receive a continuing commission on the accounts it had already procured for defendant so long as the defendant enjoyed the ongoing benefit of those accounts. Based upon this reasoning the court held that defendant’s August 13, 1963 letter had no effect on plaintiff’s rights to future commissions on the three disputed accounts and, applying Rev.Stat.Mo. § 516.100 (1969), V.A.M.S., computed the period of limitations on each commission installment from the date the individual installment became due. The result of the district court’s holding was to allow the plaintiff recovery of all commission installments that accrued after April 2, 1965.

We agree with the district court’s application of the statute of limitations. We recognize that Missouri, like most other jurisdictions, generally refuses to enforce an obligation in perpetuity. E. g., Superior Concrete Accessories v. Kemper, supra; Paisley v. Lucas, 346 Mo. 827, 143 S.W.2d 262 (1940). Three considerations, however, persuade us that this general rule is not applicable in the ease before us. First, as a practical matter, the general policy is not violated herd since the parties have agreed that plaintiff will not claim any commissions beyond the date of the filing of the complaint.

Second, contractual relationships between businessmen are not abstract matters that are to be judged without reference to the customs and usages of the industry. Although we have found no Missouri cases dealing with textile contract brokerage agreements, other courts, when faced with such questions, have realistically measured the agreements of the parties in light of industry practices and the relative positions of the parties. In this case defendant Society Brand was heavily dependent upon government contracts and was anxiously seeking some means to enter the private od civilian market. Mr. Baum, on the other hand, was a man with several decades of experience in the clothing industry. It is clear that Baum’s efforts in effecting the shift for Society Brand from the government market to the private market was a very valuable service which defendant could not afford to purchase other than on a long-term commission basis. In light of these practical considerations we do not feel that this case is an appropriate one for an automatic application of the general rule against enforcing obligations in perpetuity. Compare, e. g., Zupan v. Blumberg, 2 N.Y.2d 547, 161 N.Y.S.2d 428, 141 N.E.2d 819 (1957), with Annot., 19 A.L.R. 3d 196 (1968).

Third, this case falls squarely within the purview of at least two of the rules by which Missouri has qualified its general policy against any enforcement of an obligation in perpetuity. The first rule is that where a contract has been fully performed by one party it cannot be terminated by the other. Union Pac. R. R. v. Kansas City Trans. Co., 401 S.W.2d 528, 534 (Mo.App.1966). In the case before us it is undisputed that plaintiff was only obligated to procure the named account for defendant in order to receive the commissions from that account. The parties agree that plaintiff’s efforts in servicing the accounts after they were procured were relatively minor; and the language of the contracts makes it clear that such efforts were not a condition precedent to plaintiff’s rights to commissions. The second manner in which Missouri has qualified its policy against enforcement of obligations in perpetuity is by construing the agreement with respect to duration in light of the surrounding circumstances and by reasonable construction of the agreement as a whole. Union Pac. R. R. v. Kansas City Trans. Co., supra, at 534. As we have noted above, the parties have stipulated that no commissions will be claimed by plaintiff beyond April 2, 1970. This stipulation obviated the necessity of examining the contracts to see if some period of duration short of perpetuity could reasonably be inferred. We note parenthetically, however, that both the personal nature of the services involved here and the general customs of the clothing industry seem to suggest strongly one or more potential periods of duration short of perpetuity.

The last two issues presented in this appeal are basically fact questions and can be dealt with summarily. First defendant argues that the statute of frauds bars recovery of the commissions because none of the writings set forth commission rates for the accounts that would be applicable for the full term of the contracts. We recognize that the Missouri statute of frauds provides that price is an essential element of the writing or writings that make up the contract. E. g., Byers v. Zuspan, 241 Mo.App. 1103, 264 S.W.2d 944 (1954). From a review of the record, however, we are satisfied that price was expressed in the various writings comprising the contracts. We do not agree with defendant that price was left open to be negotiated on each order or reorder. Admittedly the commission rate did vary from time to time, but these variances were also in writing and mutually agreed to by all parties. While the Missouri statute of frauds may require the contract price to be in writing, the statute does not prohibit subsequent written modifications of the price by mutual consent of the parties.

The final issue presented in this appeal is whether or not plaintiff actually procured the Comus account and therefore is entitled to commissions on it. The district court specifically addressed this same factual question at the trial level and found that defendant’s argument was built upon a scheme to deprive plaintiff of the commissions it had hitherto received on the Comus account. We have reviewed the record and are convinced that the district court’s conclusion in this regard was supported by substantial evidence.

We find also that the other determinative issues in this case present basically factual matters grounded on substantial evidence which is as it should be binding on a court of review.

The judgment of the district court is affirmed.

      . Baum Associates, Inc. is the successor in interest to the original contracting party Baum Mfg. Company. Defendant has challenged the status of Baum Associates as not being the real party in interest. We find this issue frivolous and dismiss defendant’s argument in this regard on the basis of the district court’s opinion.

      . Society Brand Hat Company is the successor in interest to the original contracting party Apparelcraft, Inc.

      . “AGREEMENT
      “Apparelcraft, Inc. agrees to employ Baum Manufacturing Corp. to procure contracts for the manufacture of trousers from McGregor-Doniger, Inc. and its affiliates and/or Brook Mfg. Company of Old Forge, Pa.
      “Apparelcraft, Inc. agrees to pay Baum Manufacturing Corp. five (50) per pair of trousers on all contracts, orders or reorders procured by either Baum Manufacturing Corp. or Apparelcraft, Inc. from the above two firms and delivered by Appareleraft.
      “Payment to be due and payable within 10 days after receipt of payment by the customer. Copies of all invoices are to be furnished to Baum Manufacturing Corp. “Baum Manufacturing Corp. will devote only such time as they deem necessary to procure and service business from the above two firms.”