Starr v. Superheater Co.

45 F. Supp. 749, 1942 U.S. Dist. LEXIS 2622

• Court: District Court, N.D. Indiana
• Decided: July 3, 1942
• Docket: No. 698
• Status: Published

Opinion

SLICK, District Judge.

The third amended complaint alleges a contract of employment for life and a ratification thereof by the defendant. It charges that certain acts were done ratifying said contract with full knowledge of the same by the Board of Directors. The reversal in this case by the Circuit Court of Appeals directs a new trial. 7 Cir., 102 F.2d 170. Defendant, in its brief, argues that plaintiff cannot try the things he tried before and to avoid the law of the case he must allege new matter. The ratification is new. It was not alleged or relied upon in the first trial.

“Where a new trial is granted by the Circuit Court of Appeals, the verdict and the judgment are set aside and the case must be set down for a new trial.” Cyclopedia of Federal Procedure, Vol. V, Sec. 1487; Clemence v. Hudson & M. R. Co., 2 Cir., 11 F.2d 913.

I am of the opinion that the third amended complaint charging ratification of the contract of life employment with full knowledge by the Board of Directors is sufficient and for that reason the motion to dismiss should be and is overruled.