Manufacturers' Bottle Co. v. Taylor-stites Glass Co.

• Decision Date: 18 May 1911
• Citation: 95 N.E. 103,208 Mass. 593
• Parties: MANUFACTURERS' BOTTLE CO. v. TAYLOR-STITES GLASS CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 593

95 N.E. 103

MANUFACTURERS' BOTTLE CO. v. TAYLOR-STITES GLASS CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 18, 1911

COUNSEL

Wm Charak and Jacob L. Wiseman, for plaintiff.

Fowler Bauer & Kenney, for defendant.

OPINION

KNOWLTON C.J.

On July 12, 1906, the defendant in this case brought in the superior court an action against the present plaintiff to which the defendant in that case filed a declaration in set-off. To this declaration in set-off a demurrer was filed, and litigation continued upon the issue raised by these pleadings, until a decision was rendered and a rescript sent by this court in favor of the plaintiff in that suit, on February 25, 1909, which decision appears in Taylor-Stites Glass Co. v. Manufacturers' Bottle Co., 201 Mass. 123, 87 N.E. 558. On December 19, 1907 this suit was brought upon the same cause of action that was set out in the declaration in set-off in the former suit, and on January 21, 1908, an answer in abatement was filed, setting up the bringing of the former suit, and the declaration in set-off therein for the same cause of action as that which is the foundation of the present suit, and that the former action was still pending. This answer was sustained in the municipal court; but upon an appeal to the superior court the answer, after a hearing, was ordered to stand until the demurrer in the former suit should be disposed of. After the entry of judgment in accordance with the rescript in the former suit, the answer in abatement in the present case was brought up again and overruled. The case is now before us upon an exception to the order overruling the answer in abatement.

The declaration in set-off, filed under the provisions of R. L. c. 174, is a statement of an action in favor of the defendant for the amount claimed in the declaration, and in substance and effect it is, in most particulars, like the bringing of an independent suit to recover the sum alleged to be due. Looney v. Looney, 116 Mass. 283-286; Green v. Sanborn, 150 Mass. 454, 23 N.E. 224; Squier v. Barnes, 193 Mass. 21-24, 78 N.E. 731.

The pendency of an action by a defendant in the form of a declaration in set-off, is as good a reason for an answer in abatement to a subsequent action upon the same claim, as is the pendency of an original and independent suit for the same cause of action. This has been held in different cases. It rests on sound principles, and we know of no decision to the contrary. Pennsylvania R. R. Co. v. Davenport, 154 Pa. 111, 25 A. 890; Demond v. Crary (C. C.) 1 Fed. 480; Woody v. Jordan, 69 N.C. 189-197; Banigan v. Woonsocket Rubber Co., 22 R.I. 93, 46 A. 183; Snodgrass v. Smith, 13 Ind. 393; Lock v. Miller, 3 Stew. & P. (Ala.) 13.

The question arises whether the facts that the cause of action was one that could not be enforced under a declaration in set-off and that the first suit had been ended before the entry of the order overruling the answer in abatement, to which exception was taken, justified the decision of the superior court.

At common law and in the early practice of the courts in this country, the doctrine that one should not be vexed by the pendency of two actions for the same cause, at the same time, was enforced with great strictness. The subject was fully and ably considered by Chief Justice Parsons in Com. v. Churchill, 5 Mass. 174, and it was held to be sufficient to abate a writ that a former action for the same cause was pending when the second suit was begun, even if it was discontinued or otherwise disposed of before the plea in abatement was filed. It was implied, if not distinctly decided, that if the second writ was for the same cause of action, the suit must be deemed vexations if it was begun while the former was pending, without reference to the reasons for bringing it. This case has been followed and the rule applied with strictness in some other courts. Gamsby v. Ray, 52 N.H. 513; Demond v. Crary (C. C.) 1 Fed. 480; Le Clerc v. Wood, 2 Pin. (Wis.) 37; Frogg v. Long, 3 Dana (Ky.) 157, 28 Am. Dec. 69; Merriam v. Baker, 9 Minn. 40-44 (Gil. 28); Orman v. Lane, 130 Ala. 305, 30 So. 441.

But later adjudications, a part of them by some of the same courts whose decisions are cited above, are more liberal in favor of plaintiffs who have brought a second suit during the pendency of the first, for the same cause of action, for the purpose of curing a defect in the former proceedings, or who have discontinued the first action before the decision of the court upon the plea in abatement in the second action. Cases permitting an inquiry as to whether the second suit was justified, by reason of defects or peculiar conditions in the former one, are the following: Quinebaug Bank v. Tarbox, 20 Conn. 510; Downer v. Garland, 21 Vt. 362; Blackwood v. Brown, 34 Mich. 4; State v. Dougherty, 45 Mo. 294; Griffin v. Levee Commissioners, 71 Miss. 767, 15 So. 107; Norfolk & Western R. R. v. Nunally, 88 Va. 546, 14 S.E. 367; Rogers v. Hoskins, 15 Ga. 270; Gilmore v. Georgia R. R. & Banking Co., 93 Ga. 482, 21 S.E. 50; Express Co. v. Burdette, 7 App. Cas. (D. C.) 551; Phillips v. Quick, 68 Ill. 324; Byne v. Byne, 1 Rich. (S. C.) 438; Langham v. Thomson, 5 Tex. 127.

Cases stating the doctrine that a plea in abatement, founded on the pendency of a former action for the same cause, may be avoided by the discontinuance or other termination of the former action after the plea is filed, are Banigan v Woonsocket Rubber Co., 22 R.I. 93, 46 A. 183; Wilson v. Milliken, 103 Ky. 165, 44 S.W. 660, 42 L. R. A. 449, 82 Am. St. Rep. 578; Warder v. Henry, 117 Mo. 530, 23 S.W. 776; Page v. Mitchell, 37 Minn. 368, 34 N.W. 896; Nichols v. State Bank, 45 Minn. 102, 47 N.W. 462; Moorman v. Gibbs, 75 Iowa, 537, 39 N.W. 832; Trawick v. Martin Brown Co., 74 Tex. 522, 12 S.W. 216; Grider v. Apperson, 32 Ark. 332; Chamberlain v. Eckert, 2 Biss. 124, Fed. Cas....