Schnerb v. Caterpillar Tractor Co.

• Decision Date: 06 February 1928
• Docket Number: No. 150.,150.
• Citation: 24 F.2d 377
• Parties: SCHNERB et al. v. CATERPILLAR TRACTOR CO.
• Court: U.S. Court of Appeals — Second Circuit

24 F.2d 377 (1928)

SCHNERB et al. v. CATERPILLAR TRACTOR CO.

No. 150.

Circuit Court of Appeals, Second Circuit.

February 6, 1928.

William H. Page, of New York City (H. H. Nordlinger and Wm. Harvey Smith, both of New York City, of counsel), for plaintiffs in error.

John Thomas Smith, of New York City (Frank A. Gaynor and Anthony J. Russo, both of New York City, of counsel), for defendant in error.

Before MANTON and SWAN, Circuit Judges, and CAMPBELL, District Judge.

MANTON, Circuit Judge.

In the former action to recover for damages sustained by these plaintiffs in error for breach of contract awarding to them an agency in certain countries of Europe, the complaint was dismissed. That complaint pleaded upon three causes of action. The first alleged breach of a contract, asserting that the plaintiffs in error had become entitled, by reason of sales made within their territory, to a sum of money, and it was alleged that the sales or agreements of sale were made between the defendant in error and a third party. The second cause of action is based upon the theory that the plaintiffs in error were the procuring cause of the sales of certain engines or tractors made to the British government, and reasonable commissions were demanded. The third cause of action was that the defendant in error had filled orders for tractors within the territory of the plaintiffs in error, exclusively allotted to it. The trial court dismissed the complaint at the end of the proof of the plaintiffs, but did not direct a verdict. The plaintiffs in error sued out a writ of error, and the judgment of dismissal was affirmed. 289 F. 1001.

Thereafter, within a year, and within the requirements of section 23 of the New York Civil Practice Act, this action was brought to recover by reason of the same occurrences, but upon the theory that the plaintiffs in error had an exclusive sales contract to sell caterpillar tractors and accessories within European countries as its territory, and that it had expended large sums of money to push the sales of the product of defendant in error, and that within such territories the defendant in error sold a very large number of tractors and accessories, and thus breached a contract which the plaintiffs in error had for selling within these countries. The complaint alleges the exclusive right of the plaintiffs in error to sell therein, and measures their damages as the profit that they would have received from the sale of such machines. An answer was interposed to this complaint, which pleaded the defense of res adjudicata in its favor by reason of the former dismissal and affirmance thereof by this court.

At the trial below, before evidence was introduced by the plaintiffs, the defendant in error moved for the dismissal of the complaint, upon the theory that the defense of res adjudicata barred the present action. The court, after reception of the judgment roll in that action, entertained the motion and sustained this defense.

This court has held that a dismissal or nonsuit, rendered at the conclusion of the plaintiff's case and before the defendant has rested, is not a judgment on the merits, and does not bar a new action. Lehigh Valley R. Co. v. Quereau (C. C. A.) 289 F. 767; Ploxin v. Brooklyn Heights R. Co. (C. C. A.) 261 F. 854. The same pronouncement was made in the Third Circuit, in Western Union Tel. Co. v. Ammann (C. C. A.) 296 F. 454; in the Fifth Circuit, in St. Louis Southwestern R. Co. v. S. H. Bolinger & Co., 17 F.(2d) 924; in the Eighth Circuit, in United States Farm Land Co. v. Jameson, 246 F. 592; also in the Supreme Court, in Manhattan Life Insurance Co. v. Broughton, 109 U. S. 121, 3 S. Ct. 99, 27 L. Ed. 878. If there be uncertainty as to whether or not the dismissal was upon the merits the pleadings, judgment, and record may be considered. Swift v. McPherson, 232 U. S. 56, 34 S. Ct. 239, 58 L. Ed. 499; National Foundry Co. v. Oconto Water Supply Co., 183 U. S. 216, 22 S. Ct. 111, 46 L. Ed. 157; Cline v. Southern R. Co. (D. C.) 231 F. 238. The judgment of nonsuit never determines the rights of the parties and is no bar to a new action. Homer v. Brown, 16 How. 354, 14 L. Ed. 970.

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