The opinion of the court was delivered by: WILKIN
This case is determined in favor of the defendant and the claim of the plaintiff dismissed on authority of Durkee Famous Foods, Inc. v. Harrison, 7 Cir., 136 F.2d 303. A sense of propriety dictates that the decision of the Court of Appeals reversing the District Court should now, in the circumstances, be followed by this court. Only some gross error or oversight in that case would justify this court's holding contrary to the holding of that honorable court. If its ruling is not to be followed in this circuit, a court of at least equal rank should say so.
In spite of the arguments so clearly set forth in the plaintiff's briefs and the impressive opinion of Judge Sullivan of the District Court, this court would be presumptuous if it ruled contrary to the opinion of the Court of Appeals of the Seventh Circuit, especially in view of the denial of certiorari by the Supreme Court (320 U.S. 782, 64 S. Ct. 191, 88 L. Ed. 469). While ordinarily the refusal of certiorari creates no conclusive inference, in this instance, because of the similarity of the questions, it should not be overlooked. 36 C.J.S.,Federal Courts, 204, page 116. A proper regard for those courts, for the principal of stare decisis, comity between courts, and the uniformity of law brings this court to its conclusion.
'The decision of a Court of Appeals for another circuit upon the exact question is ordinarily followed, unless there are (other) circumstances requiring a different conclusion.' New Amsterdam Casualty Co. v. Iowa State Bank, 8 Cir., 277 F. 713, 716, cert. den. 1922, 258 U.S. 624, 42 S. Ct. 381, 66 L. Ed. 797.
'United States Circuit Court of Appeals should lean towards uniformity of decisions and practice, and are not justified in refusing to follow one another's decisions unless satisfied that they are erroneous.' Hennepin County v. M. W. Savage Factories, 8 Cir., 83 F.2d 453, certiorari denied M. W. Savage Factories v. Hennepin County, Minn., 299 U.S. 555, 57 S. Ct. 16, 81 L. Ed. 408; Ball v. Chapman, 7 Cir., 1 F.2d 895; United States v. Stone & Downer Co., 1 Cir., 175 F. 33.
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