Consolidated Rubber Tire Co. v. Ferguson

• Citation: 183 F. 756
• Decision Date: 12 December 1910
• Docket Number: 63.
• Parties: CONSOLIDATED RUBBER TIRE CO. v. FERGUSON.
• Court: U.S. Court of Appeals — Second Circuit

183 F. 756

CONSOLIDATED RUBBER TIRE CO. v. FERGUSON.

No. 63.

United States Court of Appeals, Second Circuit.

December 12, 1910

Charles W. Stapleton (J. E. Bowman, of counsel), for plaintiff in error.

Charles Stewart Davison (Henry W. Hardon and George W. Phillips, Jr. of counsel), for defendant in error.

Before COXE and WARD, Circuit Judges, and MARTIN, District Judge.

WARD Circuit Judge.

Ferguson the plaintiff, a citizen of New York and assignee of the Reilloc Tyre Company, a British corporation, brought this action against the Consolidated Rubber Tire Company, a corporation of the state of New Jersey, upon an alleged agreement to pay a minimum royalty of $5,000 per annum in equal semiannual installments for an exclusive right to manufacture and sell under a patent for elastic tires for the year 1908 with an option to be exercised within that year of an exclusive right for the life of the patent. The defendant appeared specially to object to the jurisdiction of the court and moved to set aside the service of the summons. Its motion being overruled, the defendant, still protesting against the jurisdiction, answered. The jury rendered a verdict for the plaintiff and the defendant sued out a writ of error to the judgment entered thereon to this court.

The first question to be considered is that of jurisdiction. The act of March 3, 1875, c. 137, 18 Stat. 470, as amended in 1887 (Act March 3, 1887, c. 373, 24 Stat. 552) and 1888 (Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U.S. Comp. St. 1901, p 508)), provides that the Circuit Courts of the United States shall have jurisdiction of all suits of a civil nature where the matter in dispute exceeds $2,000, exclusive of interest and costs, between citizens of states and citizens of foreign states and between citizens of different states, but that no such court shall take cognizance of any suit to recover the contents of any chose in action in favor of any assignee 'unless such suit might have been prosecuted in such court to recover said contents if no assignment or transfer had been made.'

The act also provides that:

'No civil suit shall be brought before either of said courts against any person or by any original process or proceeding in any other district than that whereof he is an inhabitant, but when the jurisdiction is founded only on the fact that the action is between citizens of different states suit shall be brought only in the district of the residence of either the plaintiff or the defendant.' These provisions of the act are of course to be read together. All the statutory conditions are satisfied provided the plaintiff's assignor could itself maintain the action. The

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