State v. Cote

• Decision Date: 25 October 1948
• Citation: 61 A.2d 710
• Parties: STATE v. COTE et al.
• Court: New Hampshire Supreme Court

61 A.2d 710

STATE

v.COTE et al.

Supreme Court of New Hampshire.

Oct. 5, 1948.

Rehearing Denied Oct. 25, 1948.

Exceptions from Superior Court, Hillsborough County; Grimes, Judge.

Action in replevin by the State against Donat F. Cote and the Vulcan Fire Protection Corporation for certain pipe, values and fittings in defendants' possession. Defendants' motion to dismiss the action and enjoin plaintiff from taking the depositions of defendant Cote and certain officers of defendant corporation was denied, and defendants bring an exception.

Exception overruled.

Replevin for certain pipe, valves, and fittings, alleged to have been unlawfully detained by the defendants. Of the articles sought to be replevied, having an alleged value of $9,000, only a small proportion were recovered, having a value stated by the plaintiff to be $1,500. The writ was served upon the defendants on August 30, 1948, as were notices of depositions to be taken on September 3, 1948. Subpoenas were served upon the defendant Cote and certain officers of the defendant Vulcan Fire Protection Corporation, requiring their appearance to testify upon deposition. The subpoena served upon the treasurer of the corporation commanded him to produce ‘all books and records of the (corporation) disclosing all purchases, sales, or transfers of pipe, fittings or other materials or supplies from June 1, 1947 to August 27, 1948, and all books and records disclosing work on such property.’

On September 1, 1948, the defendants moved to dismiss the action upon the ground that a prior bill in equity against these and other defendants, now pending, is an action for the same cause seeking the same relief. By the same motion they sought to enjoin the taking of the depositions upon the ground that the plaintiff thereby sought to obtain information and records already disclosed, or not required to be disclosed, under the order for the inspection of certain records made in the equity action. The defendants further sought to enjoin the plaintiff from ‘taking any further proceedings against the defendants or taking any depositions' during the pendency of an appeal to this Court in the equity action.

The order for inspection to which the motion refers is the order which was before this Court in State v. Cote, 95 N.H. 108, 58 A.2d 749; the pending appeal referred to is a further appeal in the same action.

The defendants' motion was denied, subject to exception. The taking of depositions was enjoined pending transfer of the exception to this Court and determination of all questions presented thereby. Reserved and transferred by Grimes, J. Further facts appear in the opinion.

McLane, Davis, Carleton & Graf and Stanley M. Brown, all of Manchester, for plaintiff.

Hughes & Burns and Donald R. Bryant, all of Dover, for defendants.

DUNCAN, Justice.

The pending actions arise out of transactions with respect to construction work done or agreed to be done for the State under various contracts made by the state comptroller. In its equity action, the State has alleged these contracts to be invalid because entered into without authority and in violation of statute. The relief sought by the bill is a decree ordering that the contracts ‘be set aside and rescinded as invalid’, an accounting for all moneys paid to and expended by the defendants, determination of the reasonable value of ‘all labor and materials expended’, and restitution of all sums paid by the State in excess of such value. By replevin the State seeks recovery of materials claimed to be its property under one of the contracts, providing for the fabrication and furnishing of a sprinkler system for the Laconia State School.

The defendants' motion to dismiss the action of replevin, in essence a plea of abatement upon the ground of pendency of a prior action for the same cause, presents the question of ‘what, on the whole, justice requires'. Tinkham v. Boston & M. Railroad, 77 N.H. 111, 88 A. 709. The parties join issue upon the question of whether the actions are for the same cause. Although it appears that in equity the defendants seek dismissal upon the ground that the remedy at law is adequate, they assert in support of the motion before us that the relief sought at law may be obtained in equity, and that the action is therefore brought solely for the purpose of harassing the defendants. They further assert that by seeking rescission of the contract relating to the State School, the State has made an election between inconsistent remedies which bars it from asserting rights based upon the contract.

The State on the other hand maintains that by its bill in equity it does not, ‘strictly speaking’, seek rescission and restitution, ‘but rather an acceptance of the benefits [of] an executed fraudulent and ultra vires contract with a prayer to be relieved of the fraudulent and ultra vires overpayment’. In substance it takes the position that it seeks to do equity by conceding the defendants' right to be paid the fair value of benefits conferred under an unenforceable contract, upon restoration to the plaintiff of payments in excess of such value.

We are not now called upon to determine the plaintiff's right to maintain its bill in equity. It is sufficient for purposes of this action that examination of the bill discloses a purport consistent with the interpretation given to it by counsel for the State in this proceeding. On that interpretation, the remedies sought in the two actions are not inconsistent, but complementary; and the State cannot be said to have made a binding election, precluding maintenance of the action of replevin. Whether it can be successfully maintained necessarily depends upon the determination of facts not now before us.

Because the remedies sought in the two actions appear to be consistent, it does not follow that the causes presented are identical. So far as can now be determined, they are not. By the equity action the plaintiff does not seek to replace the parties in their original positions, nor to retransfer to the defendants title to the materials sought to be replevied, assuming that title has in fact vested in the State as it claims. So far as now appears, it accepts the defendants' performance under the contracts in question, but seeks to do so at a price based upon fair value rather than fixed by contracts alleged to be...