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Peacock Records Inc. v. Checker Records Inc.

August 6, 1970

PEACOCK RECORDS, INC., A TEXAS CORPORATION, AND DON D. ROBEY, PLAINTIFFS-APPELLEES,
v.
CHECKER RECORDS, INC., AN ILLINOIS CORPORATION, CHESS RECORD CORPORATION, AN ILLINOIS CORPORATION, AND PHIL CHESS AND LEONARD CHESS, DEFENDANTS-APPELLANTS



Swygert, Chief Judge, and Cummings and Kerner, Circuit Judges.

Author: Kerner

KERNER, Circuit Judge.

Defendants-appellants Checker Records, Inc. (Checker), Chess Record Corporation, Illinois corporations, and Phil Chess and Leonard Chess, appeal from a judgment arising out of a diversity action in the district court, awarding plaintiffs-appellees, Peacock Records, Inc., (Peacock), a Texas corporation, and Don D. Robey, $350,000 (encompassing compensatory and punitive damages) for tortious contractual interference. We reverse and remand.

Defendant-appellant Checker and plaintiff-appellee Peacock are engaged in the recording, manufacture, and sale of phonograph records throughout the United States. The plaintiffs' complaint in the district court consisted of five counts alleging that:

(I) Defendants entered into a scheme and plan to interfere with plaintiff Peacock's rights under an exclusive contract for the personal services of a vocalist group known as the Five Blind Boys (Blind Boys), executed on October 5, 1960;

(II) A violation by defendants of plaintiffs' contractual rights created on July 5, 1959, to the personal recording services of one Reverend Robert Ballenger;

(III) A conspiracy by defendants to interfere with plaintiff Peacock's contractual rights described in Counts I and II;

(IV) Injunctions should be granted against interference with plaintiffs' contracts by defendants;

(V) Defendants' fraudulent interference with plaintiff Don Robey's contractual relations with composers Loyd Woodard and Roscoe Robinson of October 5, 1960.

Defendant Checker in addition to its answer denying the existence of Peacock's alleged contracts on the dates claimed, filed a two-count counterclaim alleging that plaintiffs interfered with defendants' exclusive recording contract of December 22, 1960, with the Blind Boys and plaintiffs conspired with members of the Blind Boys for the purpose of maliciously prosecuting defendants, including the present law suit.

The cause was originally tried in September of 1963 before the Honorable District Judge J. Sam Perry sitting without a jury. At the conclusion of all the evidence, the trial judge awarded plaintiffs compensatory and punitive damages totalling $250,000, subsequently reduced on defendants' motion to $150,000.

While appeal of that judgment was pending, defendants, pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, filed a motion (supported by affidavits and sworn statements) to vacate the judgment on the grounds that it had been fraudulently obtained by means of perjured testimony suborned by plaintiffs.

The alleged perjured testimony involved the testimony of three members of the Blind Boys, Loyd Woodard, J. T. Clinkscales and Lawrence Abram. These three performers offered testimony at the first bench trial to support plaintiffs' allegation (contained in Counts I, III and V) that the three-year contracts were executed between plaintiff Peacock and the five Blind Boys on October 5, 1960, and that defendants were so advised of this October 5 contract before they contracted with the Blind Boys on December 22, 1960. Subsequent to this testimony, the three Blind Boys in sworn statements declared that their testimony at the first trial was false and perjured. The Blind Boys in the form of sworn statements stated that their contract with Peacock was not in fact executed by them until Spring of 1961, but was predated to October 5, 1960.

The lower court denied defendants Rule 60(b) motion refusing to hear the testimony of the three Blind Boys and from ...


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