Victor G. Bloede Co. of Baltimore City v. Joseph Bancroft & Sons Co., 4.

• Decision Date: 11 December 1899
• Docket Number: 4.
• Citation: 98 F. 175
• Parties: VICTOR G. BLOEDE CO. OF BALTIMORE CITY v. JOSEPH BANCROFT & SONS CO.
• Court: U.S. District Court — District of Delaware

98 F. 175

VICTOR G. BLOEDE CO. OF BALTIMORE CITY v. JOSEPH BANCROFT & SONS CO.

No. 4.

United States Circuit Court, D. Delaware.

December 11, 1899

Syllabus by the Court

Section 724, Rev. St. U.S., confers authority on the federal courts in civil actions at law to require under pain of judgment of nonsuit or by default production of books and writings containing evidence pertinent to the issue, not only at the trial, but after the joining of issue and before trial, for inspection in order to prepare for trial.

Even on the assumption that the scope of section 724, Rev. St. U.S is confined to production only at the trial, quaere, whether by virtue of section 914, Id., in conjunction with section 13 of chapter 107 of the Revised Code of Delaware, as amended by the act of April 19, 1895 (20 Del.Laws, p. 187), the court would not be authorized to order production for inspection before trial.

The plaintiff's case includes not only the making and breach of the agreement declared on but the amount of damages, if any, to which the plaintiff is entitled, and evidence tending to ascertain such amount is pertinent to the issue.

Under section 724, Rev. St. U.S., generality in the designation of books or writings is not objectionable if the subject-matter to which they relate is specifically mentioned in the motion and notice.

Discovery by production of documents or otherwise, having for its object the promotion of justice through the disclosure of material facts, will, subject to certain well-recognized exceptions, be awarded in aid of an action at law, unless it clearly appears that a discovery could not avail the case of the party applying for it.

But it will not be awarded to gratify mere curiosity or to enable one party to make undue inquisition into the affairs of another; nor will the court extend discovery beyond the legitimate requirements of the case to be aided thereby.

Lewis C. Vandergrift and Charles M. Curtis, for plaintiff.

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

BRADFORD District Judge.

Application has been made by motion after due notice for an order requiring the defendant to produce before the trial of this cause for inspection by the plaintiff and its attorneys and agents certain books and writings alleged to be in the possession or under the control of the defendant and to contain evidence pertinent to the issues therein. The declaration is in assumpsit and contains nine counts. The defendant has not demurred either specially or generally to the declaration, or any of its counts, but has relied on the pleas of non-assumpsit and the statute of limitations. On these two pleas the cause is at issue. The several counts are voluminous and in some instances somewhat complicated. It is unnecessary here to attempt a particular or complete analysis of them. It, however, appears from the declaration that from time to time during a period prior to June 1, 1893, and extending back of June 9, 1891, pursuant to a parol contract between Victor G. Bloede and the defendant, the former furnished to the defendant and the defendant bought from him certain pulp colors and other colors and materials; that the plaintiff, who had succeeded to the business of Bloede, and the defendant entered into a parol contract on or about June 1, 1893, whereby the defendant for divers considerations set forth in the declaration undertook, among other things, and so long as the plaintiff and defendant should continue mutually agreed on the point, to buy from the plaintiff pulp colors and other colors and materials such as Bloede in and prior to June, 1891, had made and sold to the defendant, as above mentioned; and also, if the defendant should at any time manufacture such colors or materials or have the same manufactured for it by any person or corporation other than the plaintiff, to pay to the plaintiff an amount to be mutually agreed on between them or to be determined by arbitration or a royalty to be similarly determined; and also, if the defendant should cease to buy such colors or materials from the plaintiff, or if the plaintiff should discontinue its business, to pay to the plaintiff a royalty for the use and manufacture by the defendant of such colors or materials, to be determined and derived as set forth in the declaration, but in any event the royalty to be paid to the plaintiff to be the same as the royalty paid by the defendant to Bloede prior to June, 1891; and the plaintiff in and by said contract undertook, among other things, to furnish to the defendant such full information as would enable the latter to manufacture such colors and materials, in case it should cease to purchase the same from the plaintiff or the latter should for the reasons set forth in the declaration be unable to manufacture the same. It is alleged in the declaration that the plaintiff has fully performed all things on its part necessary to be done to enable it to maintain its action. The breach as assigned in some of the counts is the failure of the defendant to pay royalty as stipulated, and, as assigned in others, the refusal by the defendant to submit to arbitration touching royalty claimed. The damages are laid in the sum of $150,000.

The defendant contends that the present application should for several reasons be denied. It is urged that the court has no power to order that books or writings be produced before trial in an action at law. Section 724 of the revised statutes which is a reproduction in substance and almost in terms of section 15 of the judiciary act of September 24, 1789, is as follows:

'Sec. 724. In the trial of actions at law, the courts of the United States may, on motion and due notice thereof, require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, in cases and under circumstances where they might be compelled to produce the same by the ordinary rules of proceeding in chancery. If a plaintiff fails to comply with such order, the court may, on motion, give the like judgment for the defendant as in cases of nonsuit; and if a defendant fails to comply with such order the court may, on motion, give judgment against him by default.'

There has been much contrariety of judicial opinion on the question whether this section authorizes an order for the production before trial of books or writings. Its phraseology is unfortunate and calculated to shroud its meaning in doubt. It is, however, remarkable in view of the antiquity of the law and of the number of cases which have arisen requiring its construction that its intent on the point under discussion is still the subject of controversy. The weight of authority throughout the country taken as a whole as well as of reason appears to support the proposition that the section confers authority on the federal courts in civil actions at law to order in proper cases production of books and writings containing pertinent evidence, not only at the trial, but after the joining of issue and before trial for inspection in order to prepare for trial. In Geyger's Lessee v. Geyger, 2 Dall. 332, Fed. Cas. No. 5,375, where the original section was under consideration, the circuit court for the district of Pennsylvania in 1795 broadly declared the purpose of the law as follows:

'The provision contained in the judicial act was intended to prevent the necessity of instituting suits in equity, merely to obtain from an adverse party, the production of deeds and papers relative to the litigated issue.' In Bank v. Tayloe, 2 Cranch, C.C. 427, Fed. Cas. No. 2,548, decided by the circuit court for the District of Columbia in 1823, there was a motion for production before trial. Geyger's Lessee v. Geyger was cited in opposition. The court, however, ordered the defendant to produce his bank-book and vouchers prior to the trial 'for the inspection of the plaintiff's counsel, in the presence of the defendant's counsel, if he wished to be present. ' In Jacques v. Collins, 2 Blatchf. 23, Fed. Cas. No. 7,167, the circuit court for the southern district of New York in 1846 granted an application that certain correspondence and documents be produced before trial for inspection or that service be made before trial of verified copies of the same to enable the defendants to prepare for trial. In Finch v. Rikeman, 2 Blatchf. 301, Fed. Cas. No. 4,788, decided by the same court in 1851, there was a motion for production before trial of books of account and for leave to take copies. The motion was denied, not because the application was for production before trial, but for the reason that the direct consequence of granting it would or might be to subject the defendants to a penalty. Judge Betts in delivering the opinion of the court said:

'It is plain, from the language of this statute, that Congress did not intend to vest in parties litigant an unrestricted right to all written evidence in the possession of an adverse party, which might be pertinent to an issue in a trial at law; the qualification being explicit, that the right is allowable only in cases and under circumstances in which the Court of Chancery, by the ordinary rules of proceeding in that Court, would compel the production of books and documents. * * * The plain limitation to the right of the interposition of this Court by giving final judgment, is, that the application by a party for the production of papers be one which a court of equity would sustain on a bill of discovery. The right, in our opinion, rests entirely on that condition. * * * We think it against the rules of Equity, to allow a bill of discovery in such a case, unless the bill relinquishes all claim to the penalty which may be superinduced by the production and exhibition of the

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