State v. Cote

Decision Date04 May 1948
PartiesSTATE v. COTE et al.
CourtNew Hampshire Supreme Court

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Exceptions from Superior Court, Merrimack County; Leahy, Judge.

Suit by the State, through Ernest R. D'Amours, Attorney General, against Donat F. Cote, doing business as Standard Construction Company, and others for rescission of certain contracts for construction work and for an accounting. Defendants' motions to dismiss the bill in equity were denied and an order for inspection of defendants' records was granted and defendants filed exceptions.

Exceptions overruled.

Bill in Equity, brought by the State of New Hampshire, through Ernest R. D'Amours, Attorney-General against the above named defendants, praying for the rescission of certain contracts for construction work, on the allegation that said contracts were entered into by the Comptroller of the State of New Hampshire without authority and in violation of Chapter 294 of the Laws of 1947. The bill also alleges that certain contracts entered into prior to July 1947 are also invalid and should be rescinded. The bill prays for the determination of the reasonable value of all labor and materials expended under said contracts; that an accounting be rendered for all moneys received and expended by the defendants on said contracts; and that all sums paid by the petitioner to the defendants over and above the reasonable value of the work and the materials furnished be returned to the petitioner.

‘The bill in equity as filed contains a request that there be an immediate order by this erior Court allowing inspection by the petitioner of the records, books, accounts, files, letters, memoranda, and all other papers pertaining to the work, labor and materials expended by the defendants under the contracts above mentioned. The petitioner alleges that such inspection is required in order to assist the petitioner in the further preparation of its action, as contained in said bill, and that it cannot properly determine its rights without such inspection.’

The defendants are three corporations (Standard Construction Co., Inc., Vulcan Fire Protection Corporation and Pioneer Engineering Co., Inc.) and Donat F. Cote, doing business under eight different trade names all employing the word ‘Standard’ as follows: Standard Construction Co.; Standard Lumber & Supply Co.; Standard Supply Co.; Standard Realty Co.; Standard Manufacturing Co.; Standard Foundation & Roofing Co.; Standard Electrical Supply & Appliance Co.; Standard Decorating Co.

The hearing in the Superior Court was limited to the right of the State to an inspection of the defendants' books and records. The only testimony was that of the accountant for the Standard Construction Co., Inc., ‘and its associated companies' who stated that defendants' records were ‘inter-related’ and that the state work could not be separated from other work: ‘Take for example, the cash book; it contains records and transactions as they relate not only to state work but to work and contracts of other people and all of the defendant companies.’ After hearing and arguments the court took a view of defendants' place of business, and inspected briefly a few of the books of the Standard Construction Co., Inc., and, in the presence of counsel, discussed with the accountant the nature of the books kept by all defendants.

The court ordered an inspection of the records and books (more specifically enumerated in the order itself) of all defendants at their place of business in Manchester pertaining to all oral or written contracts between the plaintiff and the defendants from July 1, 1946 through March 31, 1948. The inspection was ordered to be conducted under the supervision and control of a master. The Court found the inspection necessary and that justice required it.

The defendant appeared specially and their exceptions to the order and the denial of their motions and pleas to abate and dismiss the bill in equity were allowed and transferred by Leahy, J. The order for inspection was held in abeyance pending transfer to this court where it was filed April 12, 1948. Argument thereon was made April 15th and the defendants allowed to file written arguments by April 19th.

Ernest R. D'Amours, Atty. Gen., for plaintiff.

Hughes & Burns, of Dover, Conrad Danais, of Manchester, Donald R. Bryant, of Garham, for defendants.

PER CURIAM.

Since the defendants reside or have their principal place of business in Hillsborough County, it is contended that this proceeding may not be brought in Merrimack County and should be abated. We may assume with counsel that the state is governed by the venue statute (R.L. c. 384, § 1) which reads as follows: ‘1. Transitory. Transitory actions, in which any one of the parties is an inhabitant of the state, shall be brought in the county where some one of them resides. If no one of the parties is an inhabitant of the state the action may be brought in any county.’ There are some early cases holding that a state cannot be considered an inhabitant of or residing in any county but there is common acceptance of the principle that the state is regarded as having its principal place of business in the county where its capitol is located. Merely because the state embraces all counties is no ground for saying that it resides in none. Such reasoning would relegate the state to the status of a non-resident corporation doing business within the state (Blanchette v. New England Telephone & Telegraph Company, 90 N.H. 207, 6 A.2d 161) and there is no persuasive reason to believe the legislature so intended. The statute and the decisions make it clear that venue is based on what ‘justice or convenience requires' (R.L. c. 384, § 3) and a technical interpretation is not favored. McCauley v. Brooks, 84 N.H. 207, 147 A. 898. In any case the statute permits a change of venue when required in the interests of justice R.L. c. 384, § 3. The motion to abate was therefore correctly denied and the proceedings were properly brought in Merrimack County where the capitol is located.

Objection is made that there is no evidence to support the finding of the court that discovery and inspection was necessary in this proceeding. The court was not required to take a view (R.L. c. 395, § 21) but having done so the manner and...

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    ...a means of preventing the orderly [resolution] of civil matters" and deprive the plaintiff of her rights. State v. Cote, 95 N.H. 108, 112, 58 A.2d 749, 752 (1948); see generally Heidt, The Conjurer's Circle--The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062 (1982); Kaminsky, P......
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