Ambursen Hydraulic Const. Co. v. Northern Contracting Co.

• Decision Date: 13 May 1913
• Citation: 78 S.E. 340,140 Ga. 1
• Parties: AMBURSEN HYDRAULIC CONST. CO. v. NORTHERN CONTRACTING CO. et al.
• Court: Georgia Supreme Court

78 S.E. 340

140 Ga. 1

AMBURSEN HYDRAULIC CONST. CO. v. NORTHERN CONTRACTING CO. et al.

Supreme Court of Georgia

May 13, 1913

Syllabus by the Court.

The pendency of a suit in one state between the same parties and for the same cause of action furnishes no cause to stay or abate a new suit brought in a court of another state.

This rule applies as well where the second suit is instituted by the defendant in the first suit as where the plaintiff in both actions is the same person.

The rule in equity is analogous to that at law, and the pendency in equity of the same cause of action between the same parties will not authorize an injunction against a subsequent action at law in another state by the defendant against the plaintiff, unless it appears that the prosecution of the second suit would be inequitable and unjust.

The facts of this case examined, and it is held, that the court should not have enjoined the prosecution of the common-law action for damages for a breach of contract brought by the defendant against the plaintiff in the first suit in the state of New York where the plaintiff had its corporate existence.

Error from Superior Court, Rabun County; J. B. Jones, Judge.

Action by the Northern Contracting Company and others against the Ambursen Hydraulic Construction Company. Judgment for plaintiffs, and defendant brings error. Reversed.

The Northern Contracting Company, a corporation of the state of New York, contracted with the Ambursen Hydraulic Construction Company, a corporation of the state of New Jersey, for the construction of a dam across the Tallulah river in Rabun county, Ga. The contract was entered into on June 27, 1912 and contained a provision that "the work herein embraced shall be wholly completed at a date not later than March 1 1913, time being of the essence hereof." It was further covenanted that, if at any time during the work it should appear by report of the chief engineer of the Northern Contracting Company that the forces employed, the quantity or quality of tools, appliances, or workmen provided, or the progress of the work, are not such as to insure the completion of the work within the stipulated time or according to specifications, the Northern Contracting Company may serve a written notice on the Ambursen Company to supply at once such increase of forces, appliances, or tools, and to cause such improvement in the character of the work so as to conform to specifications, and if on the expiration of ten days after the service of such notice the Ambursen Company shall have failed to furnish the Northern Contracting Company's engineer satisfactory evidence of the Ambursen Company's intention, efforts, and ability to immediately furnish the requisite material and workmen, and remedy the specified deficiencies, or if it shall appear that the Ambursen Company is insolvent or bankrupt, the Northern Contracting Company was empowered to "enter and take possession of the said work, or any part thereof, with the tools, materials, plant, appliances, houses, machinery and other appurtenances and supplies thereon or used in connection with the work, and hold the same for security for any and all damage or liability that may arise by reason of the nonfulfillment of this contract within the time herein specified, and furthermore may employ the said tools materials, plants, machinery and other appurtenances and such other means as the company or its engineer may deem proper to complete the work, at the expense of the contractor, and may deduct the cost of the same from any payments then due or thereafter becoming due to the constructor, and the constructor shall pay the cost thereof to the company; or may declare such contract forfeited as it may elect."

On December 26, 1912, the Northern Contracting Company filed in the superior court of Rabun county its petition against the Ambursen Hydraulic Construction Company, its superintendent and agent in charge of the work of building the dam, who were temporarily residing in Rabun county, alleging that the Ambursen Company in pursuance of its contract proceeded to erect a dam across the Tallulah river, when without excuse or justification it abandoned its contract and ceased work on December 19, 1912. It was further alleged: That in view of the provisions of the contract that the work was to be completed within a specified time, and, on the happening of the contingencies authorizing them so to do, that the Northern Contracting Company entered upon and took possession of the work, together with the tools, materials, plant appliances, houses, machinery, and other supplies thereon, and that it purposes holding the same as security as provided in the contract and to employ the same, together with such other appurtenances and other means as it and its engineer may deem proper, to complete the work according to the contract. That the Ambursen Company not only had its superintendent and agent, but also more than 100 employés, upon the work, and that the Ambursen Company had notified petitioner that they will not permit it or its employés to use their tools, materials, etc., and that petitioner has a force of laborers of its own engaged upon a part of the work, and that unless the Ambursen Company was restrained from interfering with petitioner in the use of the tools, materials, etc., there would be not only danger of violence, but that the tools, materials, etc., would be injured or destroyed. The damage claimed to accrue to petitioner from the defendant's violation and abandonment of its contract was alleged. The prayers of the petition were for judgment for breach of contract; for a decree ascertaining what are the tools, materials, etc., described in the contract, and which petitioner holds as security for damages arising from the defendant's breach of contract; that petitioner be decreed to have a lien in the nature of a mortgage thereon to secure such sums as they may have for its damages; and that the tools, materials, etc., be sold in satisfaction of any judgment which it may recover; for injunction against interference with the premises or with the tools, materials, etc.; for general relief and process. The defendants were served on December 26, 1912, with a copy of the suit, process, and order of court temporarily restraining the defendants as prayed.

On December 31, 1912, the Ambursen Hydraulic Construction Company and Burton Thompson filed in the Supreme Court of New York, in the county of Nassau, a suit against the Northern Contracting Company and the Georgia Railway & Power Company. In this suit the contract between it and the defendant company was set out, and it was alleged that the defendant had failed to comply with the contract in many particulars, by reason whereof the plaintiff was unable to carry out and perform the terms of the contract on its part. It was further alleged that the dam was being constructed on the property of the Georgia Railway & Power Company, and that this company guaranteed to the plaintiff the punctual performance of all things to be done by, and the payment of all moneys to be paid by, the Northern Contracting Company to it, but that the power company had failed to comply with its guaranty. The seizure of the personal property on the work belonging to the Ambursen Company was alleged, and also that this company had sold to Burton Thompson an undivided one-half interest in it. Wherefore plaintiffs demanded judgment that the defendants be required forthwith to deliver the personal property seized by the Northern Contracting Company to the plaintiffs; that it be decreed that the plaintiffs had violated their contract and had no right to hold this property; that the defendants be restrained from proceeding with the construction of the dam according to the plans prepared by the Ambursen Company and by the use of the plaintiffs' personal property; that an account be taken for damages caused by the detention of the personal property by the defendants; and that plaintiffs have judgment therefor.

On January 11, 1913, the Northern Contracting Company amended its petition against the Ambursen Hydraulic Construction Company. In the amendment it was alleged that subsequent to the service of their original suit the foregoing suit in the state of New York was filed in violation of the restraining order previously granted, and that its purpose was to defeat the jurisdiction of the superior court of Rabun county and to take the custody of the property to the state of New York. A copy of the indemnity contract and bond executed by the Georgia Railway & Power Company was alleged. The prayer was for an injunction against the Ambursen Company from...