Sutcliffe Storage & Warehouse Co. v. United States, 4238-4241.

• Decision Date: 24 July 1947
• Docket Number: No. 4238-4241.,4238-4241.
• Citation: 162 F.2d 849
• Parties: SUTCLIFFE STORAGE & WAREHOUSE CO., Inc., v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

162 F.2d 849 (1947)

SUTCLIFFE STORAGE & WAREHOUSE CO., Inc., v. UNITED STATES.

Nos. 4238-4241.

Circuit Court of Appeals, First Circuit.

July 24, 1947.

E. Russell Greenhood, of Boston, Mass. (Greenhood, Cunningham & Eggleston, of Boston, Mass., on the brief), for appellant.

Gerald J. McCarthy, Asst. U. S. Atty., of Boston, Mass. (A. Devitt Vanech, Asst. Atty. Gen., William T. McCarthy, U. S. Atty., of Boston, Mass., and Roger P. Marquis and S. Billingsley Hill, Attys., Department of Justice, both of Washington, D. C., on the brief), for appellee.

Before CLARK,¹ MAHONEY and WOODBURY, Circuit Judges.

CLARK, Circuit Judge.

The present four appeals were filed in four actions instituted in the district court on February 18, 25, 26, and 28, 1946, respectively, each claiming sums due, with interest, for the use and occupancy of the same realty in Boston, over different periods of time from June 15, 1942, to December 31, 1945. The first action covered the period from June 15, 1942, to June 30, 1943, the second and third each covered a succeeding year, and the fourth covered the final six months to the end of 1945. In all four the amounts claimed are computed at identical rates per square foot for the various parcels involved. In the latter three actions the district court has granted the defendant's motions to dismiss on the ground that they were brought for inseparable parts of the claim set forth in the first action. D.C. Mass., 68 F.Supp. 446. In the first action the defendant has made no motion and the court has entered no order.

Normally the district court would be acting quite within its discretion in taking steps to consolidate or otherwise avoid the duplication of such closely similar cases, whatever the substantive rights of the parties. Compare Rule 42(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. But the situation here is different because of the jurisdictional provisions of the Tucker Act. The first three actions claim amounts between eight and ten thousand dollars each; the last claims an amount in excess of four thousand dollars. The district court's jurisdiction of claims against the United States is limited to $10,000; for greater claims resort must be had to the Court of Claims in Washington. 28 U.S.C.A. § 41(20). The plaintiff asserts a desire and right to sue for all amounts due in the courts of its own locality, asserting that the Tucker Act so permits and also relying on the facts alleged as showing four separate claims. And it is so entitled to sue if its contention is correct; otherwise it must either waive the excess or go to Washington to sue. The particular facts it relies upon are that on April 13, 1942, it executed a lease running until June 30, 1943, of certain premises it controlled to the United States Navy, and that this contract was renewed by separate renewal leases for periods identical with those covered by the last three actions. Plaintiff's contention — duly pleaded in each action — is that beginning about June 15, 1942, the Navy occupied and used a greater area than was designated in the lease for the period in question and that therefore the plaintiff is entitled to the reasonable value of the use and occupancy of the additional area for each period.

The defendant, however, asserts that the general rule against "splitting causes of action" applies to the Government as defendant equally with all other litigants, and that the existence of separate renewal leases for the adjoining premises does not affect the nature of the plaintiff's claims, and, indeed, is important only in connection with the defendant's own defenses. For defendant has filed answers which both claim possession of the additional premises as being actually included in the leases and alternatively assert that if this is not the case the leases failed to include the additional premises by mistake and should now be reformed to include them. In the last three actions the answers also state as a separate defense the pendency of the first action. It was this defense, made the subject of a separate motion for preliminary hearing and adjudication, which was sustained by the court below.

As Professor Moore succinctly states, "The pendency of a prior pending action in the same federal court is ground for abatement of the second action." 1 Moore's Federal Practice 237; United States v. The Haytian Republic, 154 U.S. 118, 14 S. Ct. 992, 38 L.Ed 930; Hughes v. Dundee Mortgage & Trust Inv. Co., C.C.Or., 26 F. 831; Hillgrove v. Wright Aeronautical Corp., 6 Cir., 146 F.2d 621. There is no reason why a court should be bothered or a litigant harassed with duplicating lawsuits on the same docket; it is enough if one complete adjudication of the controversy be had. As a matter of fact, it is often an advantage to the plaintiff to have the issue of double suits settled before he finds himself barred from full recovery by a partial but final judgment in one action. Thus here the plaintiff may count itself in luck to have the matter settled before a portion of its rights is irretrievably lost. For the test as ordinarily stated is whether the claims set up are legally the same so that judgment in one is a bar to the others. United States v. The Haytian Republic, supra, 154 U.S. 118, 129, 14 S.Ct. 992, 38 L.Ed 930.

It is an ancient and well-settled legal principle that claims for amounts due on running accounts or as installment payments, such as rent under a lease, must include all amounts due at the time action is brought. Compare Burritt v. Belfy, 47 Conn. 323, 36 Am.Rep. 79; Warren v. Comings, 60 Mass. 103, 6 Cush. 103; In re Garment Center Capitol, 2 Cir., 93 F.2d 667, 115 A.L.R. 202; Hare v. Winfree, 131 Wash. 138, 229 P. 16, 42 A.L.R. 126, with Comment, 34 Yale L.J. 677; and see cases, Clark on Code Pleading, 2d Ed. 1947, 472, 483. The same rule has been applied to claims for royalties under a patent, Buchanan v. General Motors Corp., 2 Cir., 158 F.2d 728, to claims affecting realty, as for continuing trespasses, Evans v. Durango Land & Coal Co., 8 Cir., 80 F. 433, 437, appeal dimissed Durango Land & Coal Co. v. Evans, 19 S.Ct. 875, 43 L.Ed 1178, and to claims in quantum meruit for the occupancy of land, See v. See, 294 Mo. 495, 242 S.W. 949, 24 A.L.R. 880, with note collecting cases, 885-897. The doctrine is a salutary one in forcing the trial of identical matters...