(concurring) :
When this case was first before us I dissented from the majority action for I was convinced that the trial judge had correctly perceived that the underlying issue was equitable in nature. Whether the case was to be tried by jury, as may be permitted under Fed.R.Civ.P. 57, depended upon circumstances and upon the application of Rules 38 and 39.
Rule 39(a) provides that the trial of issues shall be by jury when demanded unless “the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the United States.” (Emphasis added.)
As I sought to demonstrate in my dissent, not only had the trial judge not abused the discretion thus afforded to him, rather, he was clearly correct in concluding that the action was equitable in nature.1
Following remand for the purpose of determination of what the majority deemed to be relevant factors, it would appear to be so that the judge before whom the case next came on for hearing did not explore those facets. He regarded the is*738sue before him as one of law, and no hearing on the facts was conducted.
Were I free to do so, I would presently affirm on the premise that the case never should have been remanded in the first place. However I deem myself bound by the majority decision which had commanded a hearing.
Under such circumstances I reluctantly concur in the further remand now directed by my colleagues.
. The case had been on the non-jury list for some two years.