(dissenting).
To me the majority opinion is unsound (1) as a matter of general legal principle; (2) as an unnatural interpretation of the intended scope and effect of the dismissal in Fleming v. Munsingwear, Inc., 8 Cir., 162 F.2d 125; and (3) on the basis of applicable estoppel.
1. I think the only logical rule in a situation such as is here presented is that set out in the Restatement, that “Where a party to a judgment cannot obtain the decision of an appellate court because the matter determined against him is immaterial or moot, the judgment is not conclusive *210against him in a subsequent action on a different cause of action.” Restatement, Judgments, § 69(2). See also Professor Austin W. Scott’s article, “Collateral Estoppel by Judgment,” 56 Harvard Law Review 1, and annotation, 157 A.L.R. 1043. The case of Allegheny County v. Maryland Casualty Co. clearly recognizes this as reflecting “the general statement of the law”, and on this basis the court assumed the right to apply it as the law of Pennsylvania “in the absence of a specific decision on the exact point by the Pennsylvania Courts”. Gelpi v. Tugwell, 1 Cir., 123 F.2d 377, 378, similarly has directly accepted the principle, in its statement that “since appellant, without fault on her part, is prevented from obtaining a review of the judgment below merely because, from intervening events, the appeal has become moot, that judgment will not become res judicata on the issues involved, in any subsequent litigation based upon a different cause of action.” The language, “that judgment will not become res judicata” etc., obviously means that the judgment necessarily, as a matter of law, is not res judicata, and it can hardly be read as a mere direction to insert a reservation in the order of dismissal in the particular case, for the order itself uses the unqualified language, just like our own in Fleming v. Munsingwear, Inc., supra, “The appeal is dismissed.” Also, I can find nothing in the decisions of the Supreme Court cited in the opinion of the majority that seems to me to preclude application of this rule. The specific question involved has never been passed upon by that Court, and I should doubt that it would accord the statements from its decisions quoted by the majority any such literal and justice-thwarting restrictiveness as has been done here. And incidentally, it might be observed that general citation of section 69 of the Restatement and of the article by Professor Scott, to which I have referred, at least has been made in Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 92 L.Ed. 898.
2. But apart from the application of the rule discussed, I think the majority opinion improperly fails to accord to our dismissal in Fleming v. Munsingwear, Inc., 8 Cir., 162 F.2d 125, the scope and effect which it plainly was intended to have. The opinion on the motion to dismiss unmistakably indicates that the sole ground for dismissing the appeal was that no legal right to an injunction any longer existed in the situation. Care was taken expressly to point out that “the injunction case alone” was brought to this court; that there had been an agreement and order in the trial court that “the second count of the complaint by which treble damages were sought should be held in abeyance”; that “there now being no law which would sustain the injunction sought by plaintiff, it seems clear that the case has become moot”; that “This court can concern itself, only with actual controversies”; and that “The appeal will therefore be dismissed.” 162 F.2d at pages 127, 128. It is impossible for me to see how anyone can derive any other meaning from this than that the court, on the basis of the motion and the facts before it, was dealing solely with the question of whether the right to an injunction was any longer a litigable question; that it viewed the treble damage rights as being protected by the agreement and order in the trial court and as therefore being unaffected in the circumstances by a refusal to hear the injunction appeal on its merits; and that in this situation the court felt that it should not be asked to waste its time upon the injunctive right, which had ceased to exist. Any other reading seems to me an unnecessary refusal to give effect to the expressed intention and action of another division of this Court.
3. There is a third and independently conclusive ground upon which I think the majority opinion is unsound. Appellee’s contention on the question of mootness in the injunction-case appeal was and necessarily could only be that no other question was involved on the motion to dismiss except the terminated right to the issuance of an injunction. If appellee was intending afterwards to assert that the issue of price violation in relation to the suspended treble-damage count was adjudicatively affected, then it had no basis for urging that the controversy as it was at that time before the court had become moot, and it *211can hardly escape the imputation of bad faith and wilful misrepresentation. I am willing to assume, however, that there was no bad faith at the time and that appellee’s present position is a mere tactical afterthought. But in either situation, by my legal concepts, there is an estoppel to assert that the dismissal had any other scope or effect in appellee’s favor than that which the motion claimed and on the basis of which it sought and induced the court’s action. A litigant should not be permitted to profit from his misleading of the court, whether wilful or not. It has, of course, always been the rule that application of the doctrine of res judicata may be precluded by acts constituting an estoppel. See 30 Am.Jur., Judgments, § 207.
For each of the reasons given, I am compelled to dissent.