Seaboard Machinery Corp. v. Seaboard Machinery Corp.
| Decision Date | 26 May 1959 |
| Docket Number | Docket 24843.,No. 30,30 |
| Citation | 267 F.2d 178 |
| Parties | SEABOARD MACHINERY CORPORATION (of Delaware) et al., Plaintiffs-Appellees, v. SEABOARD MACHINERY CORPORATION (of New Jersey) et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Second Circuit |
Samuel B. Ohlbaum, New York City (Samuel Milberg and Henry Milberg, Jersey City, N. J., on the brief), for defendants-appellants.
Bert B. Rand, of Trammell, Rand & Nathan, Washington, D. C. (John Cye Cheasty, New York City, Charles M. Trammell and Hans A. Nathan, of Trammell, Rand & Nathan, Washington, D. C., on the brief), for plaintiffs-appellees.
Before CLARK, Chief Judge, and L. HAND and WATERMAN, Circuit Judges.
In this action the district judge, after trial and verdict, has given judgment for the plaintiffs on two counts of the complaint, and dismissed another, while he has retained four counts and a counterclaim for later trial. He has made a finding that there is no just reason for delay, and has directed final judgment on the three counts upon which he has acted. This provides the formal basis for immediate appeal under F.R. 54(b) as amended, and defendants accordingly have appealed the judgment entered against them. Nevertheless it is well settled that the rule is available only in case of multiple claims; and if only a single claim (in the sense of the old "cause of action") is presented, it is our duty to dismiss the appeal as premature. See, e. g., Schwartz v. Eaton, 2 Cir., 264 F.2d 195, and cases collected at page 197.
We are constrained to conclude that but a single claim is here presented. All the counts — and the counterclaim as well — arise out of a single contract, that of June 12, 1951, whereby the defendant New Jersey corporation sold all of its business and assets to the plaintiff Delaware corporation. The plaintiffs claim fraud and breach of warranty in their purchase, and each count sets forth some aspect of this over-all claim. Thus the first count alleges concealment of the defendant corporation's liabilities, the second count nondisclosure of contingent liabilities, the third count misrepresentation of tangible and intangible assets, the fourth count misrepresentation of plant facilities, the fifth count misrepresentation of executory contracts, the sixth count (which was dismissed) a breach of an agreement not to carry on a competing business, and the seventh count a claim for certain stock of the plaintiff corporation...
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