Motor Terminals v. National Car Co., 10155.
| Decision Date | 15 June 1950 |
| Docket Number | No. 10155.,10155. |
| Citation | 182 F.2d 732 |
| Parties | MOTOR TERMINALS, Inc. v. NATIONAL CAR CO. et al. |
| Court | U.S. Court of Appeals — Third Circuit |
R. Randolph Hicks, New York City, (Southerland, Berl & Potter, Wilmington, Del., on the brief), for appellant.
James R. Morford, Wilmington, Del. (Morford, Bennethum, Marvel & Cooch, Wilmington, Del., Carl H. Richmond, Washington D. C., on the brief), for National Car Co., defendant-appellee.
Before GOODRICH, WOODBURY and KALODNER, Circuit Judges.
This is a derivative stockholder's suit instituted by the plaintiff as the holder of one-half of the stock of another corporation, the defendant National Fitch Corporation, for a declaratory judgment with respect to the meaning of certain provisions in a contract entered into by the latter and still a third corporation — the defendant National Car Company. Federal jurisdiction rests upon diversity of citizenship and amount in controversy.
The suit is peculiar in that the plaintiff is a corporation, rather than an individual. But this feature, although perhaps novel, is without legal significance in the view of counsel and the court below, and in our view also. We are not aware of the existence of any impediment to suits of this sort caused by the fact that the plaintiff-stockholder happens to be a corporation.
There is some question, however, as to whether or not "a case of actual controversy," 28 U.S.C.A. § 2201, exists between the parties with respect to the meaning of the words used in the contract with which this litigation is concerned. It appears that this issue of the actuality of the controversy between the parties was sharply contested in the court below, and that court, after careful consideration, expressed itself as "satisfied that in this case an `actual controversy' exists." So are we. The point being jurisdictional, however, we think we should notice it despite the fact that it has not been pressed on this appeal.
The facts with respect to the genesis of the dispute to be gleaned from the pleadings and from the affidavits in support of the cross motions for summary judgment under Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A.,1 are these:
The Corporation on behalf of which this suit was brought, National Fitch, and the defendant National Car Company, entered into a contract on March 1, 1940, with respect to the prosecution of the business of manufacturing and renting apparatus for use in combined railroad and truck transportation of goods, apparently liquid goods in bulk, typically milk. For the next seven years there was apparently no dispute between them over its meaning. But on March 5, 1947, the board of six directors of the corporation on whose behalf this suit was brought, National Fitch, failed by a tie vote to pass a motion made by one of them for arbitration with the defendant National Car as provided in the contract with respect to the meaning of certain of its terms. Then, in May 1947, a representative of the plaintiff called upon counsel for National Car and advanced, and...
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...that contravened Section 2041 of the Statute. In Motor Terminals, Inc. v. National Car Co., D.C.Del.1949, 92 F.Supp. 155, affirmed, 3 Cir., 182 F.2d 732, a situation existed which was somewhat similar to the case at bar. In that case, plaintiff (Motor Terminals, Inc.) and defendant (Nationa......
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