Victor G. Bloede Co. of Baltimore City v. Joseph Bancroft & Sons Co.

Decision Date05 June 1901
Docket Number4.
Citation110 F. 76
PartiesVICTOR G. BLOEDE CO. OF BALTIMORE CITY v. JOSEPH BANCROFT & SONS CO.
CourtU.S. District Court — District of Delaware

Syllabus by the Court.

In view of the discretionary nature of the power of the court under section 724, Rev. St. U.S., summarily to give judgment of non-suit or by default, as the case may be, the court will not favorably act on any application for production ambiguous on its face or which does not clearly conform to the requirements of the section.

In case of non-compliance by one party with an order of production the remedy of the other is restricted to the obtaining, in the discretion of the court, of a judgment of non-suit or by default, as the case may be, and does not include power to compel production by attachment.

Anthony Higgins and Charles M. Curtis, for plaintiff.

Benjamin Neilds, William S. Hilles, and Herbert H. Ward, for defendant.

BRADFORD District Judge.

By an order made in this cause December 21, 1899, the defendant was required pursuant to section 724, Rev. St. U.S., to produce in court March 5, 1900, for inspection by the plaintiff, its agents or attorneys, with leave to take copies and make abstracts under the further order and direction of the court all books and writings in the possession or power of the defendant showing all or any of the particulars mentioned in the order, and to file an affidavit showing full compliance therewith, or reasons, if any should exist, why such compliance was impossible, (C.C.) 98 F. 175. The particulars so mentioned were as follows '(1) What pulp colors and other colors and materials were manufactured by the plaintiff for and delivered to the defendant between June 1, 1893, and January 1, 1895;

'(2) What pulp colors and other colors and materials were manufactured by the defendant between June 1, 1893, and June 9, 1897, similar or substantially similar to the pulp colors or other colors or materials furnished by Victor G. Bloede to the defendant on or prior to June 9, 1891;

'(3) What pulp colors and other colors and materials were manufactured for the defendant otherwise than by the plaintiff between June 1, 1893, and June 9, 1897, similar or substantially similar to the pulp colors or other colors or materials furnished by the said Victor G. Bloede to the defendant as above mentioned; and

'(4) What pulp colors and other colors and materials were used by the defendant between June 1, 1893, and June 9, 1897, similar or substantially similar to the pulp colors or other colors or materials furnished by the said Victor G. Bloede to the defendant as above mentioned.'

The defendant produced in court March 5, 1900, certain books together with an affidavit made by its president to the effect that they were all the books or writings in its possession or power showing, in so far as any books or writings in its possession or power would show, the particulars mentioned in the order. The books so produced were at the time of their production and from time to time afterwards inspected by the plaintiff through its agents and attorneys, but no motion has been made on the part of the plaintiff for judgment by default against the defendant for non-compliance with the order of production. The matter now before the court is presented by a petition filed by the plaintiff March 8, 1901, alleging, in substance, that the information sought by the plaintiff cannot be obtained from the books produced under the order; that the defendant has not fully complied therewith in that it 'did not produce any books or writings showing what pulp colors or other colors or materials were used by the defendant or were manufactured by the defendant or by any other person for the defendant between June 1, 1893, and June 9, 1897, similar or substantially similar to the pulp colors or other colors and materials furnished by Victor G. Bloede to the defendant on or prior to June 8, 1891'; that such colors and materials were used by the defendant in the manufacture of several specified kinds of cloth between certain material dates; and that the defendant has in its possession books and writings which will show what quantities of goods were manufactured by the defendant in the manufacture of which such colors and materials were used; and praying, in substance, that the defendant may be required to produce 'under said order and in further compliance therewith' all books and writings showing its total output in several...

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