Kirkpatrick v. Pope Mfg. Co.

• Decision Date: 14 April 1894
• Docket Number: 398.
• Citation: 61 F. 46
• Parties: KIRKPATRICK v. POPE MANUF'G CO.
• Court: U.S. District Court — District of Connecticut

61 F. 46

KIRKPATRICK v. POPE MANUF'G CO.

No. 398.

United States Circuit Court, D. Connecticut.

April 14, 1894

Kerr &amp Curtis, for plaintiff.

Gross Hyde & Shipman and W. A. Redding, for defendant.

TOWNSEND District Judge.

This is a motion to require the defendant to produce at the trial of an action at law certain books and papers, under the provisions of section 724, Rev.St.U.S., which is as follows:

'In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to comply with such order the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order, the court may, on motion, give judgment against him by default.'

The action is brought to recover royalties on certain patented bicycle saddles, alleged to be due to plaintiff under a certain agreement. The answer alleges, among other defenses, that the defendant corporation has sold its business and assets to a corporation of the same name, organized under the laws of the state of Maine; and that, since 1887, it has not manufactured any saddles embodying said patented invention; that the royalty returns for subsequent years were made by said Maine corporation, as the successor of the defendant; and that the number of saddles manufactured was erroneously stated therein. The plaintiff avers in reply that the two corporations are substantially the same; that the alleged change was merely nominal, and did not affect the respective rights and obligations of the parties; that said returns were signed and forwarded to plaintiff by defendant's officers; and that said machines were constructed under the authority of defendant, which is liable for the royalty thereon; and that said returns are correct and true. The motion is predicated upon the claim that the production of the books and papers therein named will tend to prove the practical identity of the two corporations. It is addressed to the discretion of the court, which is to be governed by the practice in such cases in chancery. Gregory v. Railroad Co., 10 F. 529. The authority should be exercised only in cases where the relief might have been had by a bill of discovery, and as a substitute for that proceeding. Finch v. Rikeman, 2 Blatchf. 301, Fed.Cas.No. 4,788. By such bill a complainant would be entitled to a discovery as to such matters of fact as are material to the prosecution of the whole of his case.

Bisp.Eq.p. 594, Sec. 560; Daniell, Ch.Pr.p. 1817; Downie v. Nettleton, 61 Conn. 593, 24 A. 977. And this may include such facts as would tend to impeach or destroy defendant's case. Pom.Eq.Jur. § 201; Edison Electric Light Co. v. U.S. Electric Lighting Co., 45 F. 58. The motion calls for the production of the records of the defendant corporation, and of its accounts of sales of saddles during the period covered by the controversy, for the purpose of proving the practical identity of the two corporations. The contract, whose alleged breach forms the basis of the action, provided that said accounts should be open to the inspection of plaintiff. It seems to me that both the records and accounts relate to the plaintiff's title, and are material to his case. Clearly they do not relate solely to the defendant's case. Story, Eq.Pl.p. 281, Sec. 311. The records may be material to support the plaintiff's claim that the defendant, may be material to support the plaintiff's claim that the defendant, either as principal or agent, constructed said machines; to show the character and extent of its interest in such construction; and that the defendant, and no other party, is liable under said contract. The plaintiff is entitled, to the specific performance of the contract, that he should be permitted to inspect the accounts. They are presumably material, not merely upon his assertion that the returns are correct as to the number of machines constructed, but to show whether they support the returns made, and whether the saddles therein referred to did or did not contain said patented invention.

It is suggested that the rights of the plaintiff will be sufficiently protected by a notice to produce, or a subpoena duces tecum. But a notice to produce does not compel a party to produce the document. The effect of the refusal is merely to lay the foundation for the introduction of secondary evidence of the contents of the papers called for. Iasigi v. Brown, 1 Curt. 401, Fed.Cas.No. 6,993; Life &amp Fire Ins. Co. v....