Plews v. Burrage

• Decision Date: 02 July 1920
• Docket Number: 1464.
• Citation: 266 F. 347
• Parties: PLEWS v. BURRAGE.
• Court: U.S. Court of Appeals — First Circuit

266 F. 347

PLEWS v. BURRAGE.

No. 1464.

United States Court of Appeals, First Circuit.

July 2, 1920

Sherman L. Whipple, of Boston, Mass. (Alexander Lincoln, of Boston Mass., on the brief), for appellant.

Boyd B Jones, of Boston, Mass. (henry F. Hurlburt and Philip N Jones, both of Boston, Mass., on the brief), for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

Plews appeals from a final decree of the District Court for the District of Massachusetts enjoining him from prosecuting his action at law brought in said District Court against Burrage in August, 1918. The facts now material may be briefly stated:

In September, 1910, and January, 1911, by correspondence Burrage agreed to pay Plews 5 per cent. of all profits which might accrue to Burrage out of the acquisition by him of copper properties brought to his attention by Plews. This agreement is called the Plews commission note. Plews brought his suit at law on this commission note, alleging performance on his part, fiduciary obligation on the part of Burrage to disclose facts peculiarly within his knowledge as to the acquisition and value of such properties, and fraudulent concealment of such facts, with a resultant right in Plews to recover 5 per cent. in stock or money of very large profits. Burrage thereupon brought this bill in equity, alleging that Plews had given Louis Ross an option on his commission note for . . . 500; that Ross had assigned this option to Burrage, who had taken it up, paying the . . . 500, thus acquiring all Plews' rights therein; that subsequently Ross had brought suit on behalf of himself and Plews on said commission note in the Massachusetts state court (233 Mass. 439, 124 N.E. 267), there disposed of by final decree for Burrage. Burrage sets up this decree as res adjudicata of the cause of action in Plews' suit at law. He alleges that this Ross-Plews suit, tried with another suit brought by Ross against Burrage solely in his own behalf, occupied in trial and arguments about 135 days, and involved Burrage in expenses of over $20,000 for master's fees and stenographers' bills, besides fees for his own counsel. Burrage therefore asserts it to be unjust and inequitable that he should again be vexed and harassed by the prosecution of another suit on the Plews commission note. Plews moved to dismiss this bill, alleging:

(1) Want of equity;

(2) Complete and adequate remedy at law;

(3) Lack of identity between the cause of action in the Massachusetts court and the one sued upon in the District Court; and

(4) That Plews was not a party to the Massachusetts suit.

This motion was overruled, and Plews was temporarily enjoined. Subsequently he filed an answer, admitting certain facts and denying others. Burrage then filed motions to strike out certain parts of the answer for insufficiency, and for final decree. These motions were allowed, and a final decree entered, permanently enjoining Plews from prosecuting his action at law, and adjudging the decree in Burrage's behalf in the Massachusetts court to be final and conclusive against all rights now claimed by Plews.

Learned counsel have argued elaborately, orally and on briefs, the question as to whether the final decree in the Massachusetts court does or does not conclude all Plews' rights. Burrage strenuously contends that the causes of action are identical; that, if not identical, by amendment the cause of action now sued upon might and should have been included in the former suit; and that therefore Plews is now barred. Plews contends that the causes of action in the two suits are in essence different; that he discovered facts of controlling importance only at the trial of the Ross-Plews suit; that Ross was Burrage's agent in obtaining from Plews the option on his commission note; and that Plews was, in giving said option and in the subsequent transfer to Burrage, the victim of fraudulent concealment by Burrage.

It is not the present province of this court to determine the issue of res adjudicata, for we are of opinion that the District Court erred in denying the defendant's motion to dismiss on the ground of adequate and complete remedy at law. The sole basis of equitable jurisdiction is the contention that because of the length and expense of the trial in which this issue is alleged to have been determined in the state court, Burrage is entitled to resort to equity, instead of pleading res adjudicata in his answer to Plews' suit at law and there trying out that issue. On analysis, Burrage's proposition is that by proceeding as plaintiff, and not as defendant, and thus reversing the order of trial, he may avail himself more conveniently and promptly of the defense of res adjudicata than by the customary...