Sears, Roebuck & Co. v. Metropolitan Engravers, No. 14564.

CourtU.S. Court of Appeals — Ninth Circuit
Writing for the CourtFEE and CHAMBERS, Circuit , and WALSH
Citation245 F.2d 67
PartiesSEARS, ROEBUCK & CO., a corporation, Appellant, v. METROPOLITAN ENGRAVERS, Limited; Metropolitan Mat Service, Inc.; Gregory F. Duffy, Aubrey A. Duffy, Alfred Smutz, Walter C. Duffy and Frank R. Blade, Appellees.
Docket NumberNo. 14564.
Decision Date22 March 1957

245 F.2d 67 (1956)

SEARS, ROEBUCK & CO., a corporation, Appellant,
v.
METROPOLITAN ENGRAVERS, Limited; Metropolitan Mat Service, Inc.; Gregory F. Duffy, Aubrey A. Duffy, Alfred Smutz, Walter C. Duffy and Frank R. Blade, Appellees.

No. 14564.

United States Court of Appeals Ninth Circuit.

November 27, 1956.

Rehearing Denied March 22, 1957.


245 F.2d 68

Newlin, Holley, Tackabury & Johnston; John L. Wheeler, Hudson B. Cox, George W. Tackabury, Los Angeles, Cal., for appellant.

Nathan M. Dicker, William J. Clark, Beverly Hills, Cal., Knudson, Wolfe & Knudson, Tobias G. Klinger, Gerald R. Knudson, Gerald R. Knudson, Jr., Los Angeles, Cal., for appellees.

Before FEE and CHAMBERS, Circuit Judges, and WALSH, District Judge.

JAMES ALGER FEE, Circuit Judge.

In an action in the District Court, plaintiff Sears, Roebuck1 alleged that all of the defendants conspired to defraud plaintiff in the following manner: Blade was employed by plaintiff in its Los Angeles group of stores as Advertising Manager and as such entered into many contracts with Metropolitan Engravers, Ltd.,2 which manufactured engravings which were sold to and used by plaintiff in newspaper advertising.

According to the allegations, it was agreed between Blade and Engravers, without knowledge or consent of Sears, that Blade personally would receive rebates, profits and commissions from Engravers. It is alleged that, in return for such payments, Blade, as Advertising Manager of the Sears group of stores in Los Angeles, would contract for all engraving for that group with Engravers and no one else, and as a result Sears unwittingly would pay to Engravers, for the identical engraving, sums of money greatly in excess of the then going price therefor current on the Los Angeles market. It is further set up in the complaint that in 1949 plaintiff instructed Blade to contract for part of this engraving with other concerns than Engravers, and all defendants agreed that the engraving business should be divided between Engravers and Barnard and that the prices charged Sears should be higher

245 F.2d 69
than current prices in Los Angeles. Blade also was to receive secret rebates and profits from Barnard

It is alleged on information and belief that Engravers and Mat Service paid Blade a sum in excess of $50,000.00, and the amount paid to Blade by Barnard was $8,250.00.

The gravamen of the complaint with regard to Engravers and its associates is that they fraudulently overcharged Sears for a period of years for engraving work. A list of the payments from February 6, 1942, to November 29, 1951, to Engravers is made part of the amended complaint. It is then alleged:

"* * * that the total amount so charged by said defendant `Engravers\' and paid by plaintiff for engravings purchased by plaintiff from said defendant `Engravers\' during said period of time from February 6, 1942, to November 29, 1951, inclusive, was and is the sum of $563,504.50; that the fair market price and value in the Los Angeles area for such engravings and the price that, except for the aforesaid agreements, conspiracies and fraud of said defendants, would have been charged plaintiff by said defendant `Engravers\' and by others in the engraving business for like quantities of like grade and quality, was the sum of $421,524.55; that thereby plaintiff was damaged in the sum of $141,979.95, no part of which has been paid."

Upon information and belief it is alleged there were similar overcharges by Engravers in the period from January 1, 1937, to February 5, 1942. Like complaints are made against Barnard Company. Damages for this tort are demanded together with exemplary damages.

Blade filed an answer setting up, among other matters, the record of an action filed by Sears against him in the state court. The action sought recovery of the secret profits obtained by Blade over a course of years. None of the other defendants in this action was joined therein.

In the case at bar, Blade filed a motion for summary judgment based upon his answer and supporting documents in the instant action in the District Court. A summary judgment for defendant Blade was granted by the court.3 Engravers, Metropolitan Mat Service, Inc., the Duffys and Smutz filed no answer, according to the record filed in this Court. They filed a joint motion to dismiss the complaint or, in the alternative, a motion for summary judgment. The motion to dismiss alone was granted by the court.

Sears appeals from the summary judgment in favor of Blade. Sears also appeals from the judgment of dismissal based on the motion of Engravers and associate defendants. These appeals will be considered in this sequence.

The following facts were not controverted on Blade's motion for summary judgment.

On December 10, 1951, Sears filed a complaint for money had and received in the Superior Court of the State of California in and for the County of Los Angeles against Blade and his sister and had a writ of attachment issued and a levy made thereunder. In answer to a demand in the state action by Blade therefor, Sears filed a bill of particulars which contains in essence the same facts with regard to Blade as are contained in the amended complaint subsequently filed in the federal court and above summarized. In particular, the moneys for which the attachment issued are unquestionably in part the sums alleged to have been paid to Blade in the amended complaint in the federal suit, as an inspection of the bill of particulars in the state action will show.

The general rule is that a plaintiff may pursue an action against an identical defendant in several courts at the same time, even though inconsistent remedies

245 F.2d 70
are sought. But it is everywhere held that, although there can be several suits on the same state of facts against an identical defendant, there can be only one recovery. When a judgment has been based upon any of the several causes of action which can be stated arising out of the same state of facts, no recovery can be had as a matter of substantive law upon any of the other causes of action, whether prosecuted in the same court or some other court. The same rationale applies to a situation where affirmative action has been taken upon one of the several causes of action, which is thereupon held to negative any other theory of recovery between the same parties. This also is a doctrine of substantive law which has been adopted by many jurisdictions. The trial court held that, under the substantive law of California as adopted by its courts, the obtaining of a writ of attachment by this plaintiff against Blade constituted an election. It was also held that thereafter no cause of action of any nature arising out of the same facts between the same parties could be pursued either in the state courts or in any other court. As to Blade, Sears was estopped from claiming that Blade was liable for any other damage arising from the same facts anywhere, since it had full legal recourse for any injury caused by him. This Court accepts the judgment of the trial judge, sitting in a court of the State of California, as correct in applying California law.4 The summary judgment as to Blade was therefore correct

However, the trial court was in error in sustaining the motion to dismiss of Engravers and its associates. The court was not considering a motion for summary judgment. Consideration was therefore limited to matters appearing on the face of the pleadings. The applicable rule expressly so provides.5 While the motion for summary judgment is not before this Court because the trial court did not rule upon it, the following discussion will indicate in our opinion, whatever the...

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74 practice notes
  • Lanier v. City Of Fresno, CASE NO. CV F 10-1120 LJO SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 9, 2010
    ...may be taken of a fact to show that a complaint does not state a cause of action." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). A court properly may take judicial notice......
  • DOOMS v. Fed. HOME LOAN MORTGAGE Corp., CASE NO. CV F 11-0352 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 31, 2011
    ...may be taken of a fact to show that a complaint does not state a cause of action. " Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F. 2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F. 3d 982, 984 (9th Cir. 1997). A court properly may take judicial not......
  • Jacob Winding Dba Top To Bottom Cleaning Serv. v. Cal-western Reconveyance Corp., CASE NO. CV F 10-0041 LJO GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 24, 2011
    ...may be taken of a fact to show that a complaint does not state a cause of action." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). A court properly may take judicial notice......
  • Singh v. Litton Loan Servicing Lp, CASE NO. CV F 10-1355 LJO GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 28, 2011
    ...may be taken of a fact to show that a complaint does not state a cause of action." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). A court properly may take judicial notice......
  • Request a trial to view additional results
74 cases
  • Lanier v. City Of Fresno, CASE NO. CV F 10-1120 LJO SKO
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 9, 2010
    ...may be taken of a fact to show that a complaint does not state a cause of action." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). A court properly may take judicial notice......
  • DOOMS v. Fed. HOME LOAN MORTGAGE Corp., CASE NO. CV F 11-0352 LJO DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 31, 2011
    ...may be taken of a fact to show that a complaint does not state a cause of action. " Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F. 2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F. 3d 982, 984 (9th Cir. 1997). A court properly may take judicial not......
  • Jacob Winding Dba Top To Bottom Cleaning Serv. v. Cal-western Reconveyance Corp., CASE NO. CV F 10-0041 LJO GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 24, 2011
    ...may be taken of a fact to show that a complaint does not state a cause of action." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). A court properly may take judicial notice......
  • Singh v. Litton Loan Servicing Lp, CASE NO. CV F 10-1355 LJO GSA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 28, 2011
    ...may be taken of a fact to show that a complaint does not state a cause of action." Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956); see Estate of Blue v. County of Los Angeles, 120 F.3d 982, 984 (9th Cir. 1997). A court properly may take judicial notice......
  • Request a trial to view additional results

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