Washburn & Moen Mfg. Co. v. H. B. Scutt & Co.

• Decision Date: 31 December 1884
• Citation: 22 F. 710
• Parties: WASHBURN & MOEN MANUF'G CO. and another v. H. B. SCUTT & CO., Limited.
• Court: U.S. District Court — Western District of Pennsylvania

22 F. 710

WASHBURN & MOEN MANUF'G CO. and another v. H. B. SCUTT & CO., Limited.

United States Circuit Court, W.D. Pennsylvania.

December 31, 1884

Wm. C Goudy, L. L. Coburn, and D. F. Patterson, for complainants.

Bakewell & Kerr and D. T. Watson, for defendant.

ACHESON J.

1. The jurisdiction of the court of common pleas is contested on the ground that in the suit therein service was made on a mere employe of the corporation, who, it would seem, is not an agent within the meaning of the state statute relating to service of judicial process upon corporations, (Parke v Commonwealth Ins. Co. 44 Pa.St. 422;) but, should that court hold the service to be good, still the present plea could not prevail for several reasons. In the first place Isaac L. Ellwood, a plaintiff here,-- and properly so, as it seems to me,-- is not a party to the suit in the common pleas. Again, the object of that suit is the rescission of the license contracts, whereas the purpose of this suit is the enforcement thereof. Clearly, the relief here sought is not attainable in the former suit. Perhaps a cross-bill might bring the whole controversy before the court of common pleas, but the complainants are not bound to take that course. Sharon v. Hill, 22 F. 28; Story, Eq. Pl. Sec. 737; 1 Daniell, Ch.Pr. 657. Finally, it has been held that the pendency of a prior suit in a state court is not a bar to a suit in a circuit court of the United States, although between the same parties and for the same cause of action. Stanton v. Embrey, 93 U.S. 548; Gordon v. Gilfoil, 99 U.S. 168; Sharon v. Hill, supra. The plea must therefore be overruled, with leave to the defendant to answer within 30 days; and it is so ordered.

2. In disposing of the motion for a preliminary injunction, I deem it necessary to consider but one of the questions discussed by counsel. While it is certainly true that the written agreement of August 18, 1883, does materially distinguish this case from that of the Washburn & Moen Manuf'g Co. v. Cincinnati Barbed-wire Fence Co. post, 712, yet upon one point the ruling of Judge SAGE there is applicable here, and may be safely followed. He held that it was a fraud in the complainant to secretly undersell the schedule rates established by it for the government of itself and its licensees, and this was one of the grounds for his denial of a preliminary injunction. Now, the affidavit of James B Oliver, the chairman of the defendant company, charges that, in fraud of the rights of the defendant as licensee, the complainants have secretly and extensively sold barbed fence wire at prices below the schedule rates, to the...