Wolcott v. National Electric Signalling Co.

• Decision Date: 07 June 1916
• Docket Number: 374.
• Parties: WOLCOTT v. NATIONAL ELECTRIC SIGNALING CO.
• Court: U.S. District Court — District of Massachusetts

235 F. 224

WOLCOTT v. NATIONAL ELECTRIC SIGNALING CO.

No. 374.

United States District Court, D. Massachusetts.

June 7, 1916

Weil &amp Thorp, of Pittsburgh, Pa., and William G. Thompson, of Boston, Mass., for plaintiff.

Choate Hall & Stewart and Brandeis, Dunbar & Nutter, all of Boston Mass., for defendant.

Browne & Woodworth and George K. Woodworth, all of Boston, Mass for intervener.

DODGE Circuit Judge.

The questions to be here considered arise under an intervening petition filed by Wolcott against Fessenden June 3, 1914. A motion to dismiss it was overruled October 20, 1915. The opinion herein of that date sets forth in substance the petitioner's allegations and the relief prayed for. 228 F. 811. Reference may be also made here, as it was in that opinion, to the decision of the Court of Appeals for this Circuit (National Electric Signaling Co. v. Fessenden, 207 F. 915, 125 C.C.A. 363) in the previous suit at law.

Wolcott is also plaintiff in the bill in equity against the above-named defendant company whereby these proceedings in equity were begun. Fessenden, against whom he brings this intervening petition, was allowed to become also a party complainant in the original suit by a decree herein on November 1, 1912.

His motion to dismiss Wolcott's petition having been overruled as above, Fessenden answered it October 25, 1915. Wolcott then filed these interrogatories to him November 15, 1915, and his present objections and motion to strike them out were filed November 30, 1915.

Wolcott's petition asks for relief as follows: An injunction forbidding Fessenden (1) to prosecute further his suit at law against the defendant company; or (2) to bring any other action against it upon the contracts therein involved; and (3) that all rights under said contracts of all parties therein concerned be determined by this court (i.e., in the present suit in equity).

Exhibit E annexed to Wolcott's petition is a copy of a letter dated September 12, 1908, addressed to Col. John Firth, and signed by Hay Walker, Jr., and by Fessenden. This document was Exhibit C in the suit at law, and is printed in full at 207 F. 919, 125 C.C.A. 363. Fessenden claimed in his suit at law that it sets forth the terms of an agreement with the defendant company modifying a former contract or former contracts between the same parties, wherein he and Wolcott were parties of the first part. The Court of Appeals has held that any claims under it must be made by Fessenden and Wolcott jointly, and this court has held, in overruling the above motion to dismiss, that Wolcott's rights are involved in Fessenden's suit at law upon said agreement.

In his suit at law Fessenden contended and introduced evidence tending to show that, as he now alleges in paragraph 5 of his answer to this petition, he acted in Wolcott's behalf and by Wolcott's authority in entering into said agreement; also that Wolcott thereafter ratified and approved it. His answer denies, in the same paragraph, allegations in Wolcott's petition that, if said agreement was made as Fessenden claims, it was made without Wolcott's consent or approval, and allegations that assertions by Fessenden that he communicated said agreement to Wolcott after it was signed and Wolcott consented thereto are falsely made.

Fessenden further contended upon the evidence in the suit at law that, as he now also alleges in paragraph 5 of his answer, in December, 1908, a modification of some of the terms of said agreement E was agreed to by him, that in so agreeing he acted by Wolcott's authority, and that Wolcott thereafter ratified and approved what was thus done. His answer to this petition denies, also in paragraph 5, allegations in paragraph 7 of the petition that no such modification was ever made by Wolcott's authority or consented to or approved by him. Fessenden's declaration at law did not expressly allege any such agreement in December, 1908 (see 207 F. 924, 125 C.C.A. 363); but since the case was remanded he has so alleged it in an amended declaration (see paragraph 7 of the petition).

Whether or not Wolcott ever authorized, consented to, approved, or ratified the above agreements claimed to have been made on his behalf by Fessenden is therefore at issue between the parties. Wolcott alleges the negative as the principal ground for the relief he asks, and further that he neither desires, approves, nor consents to the attempt made by Fessenden to enforce any such agreements on his account, that he objects to any action or proceedings in that direction, and that the course taken by Fessenden tends to his injury and damage, all of which, so far as material, Fessenden denies.

Wolcott's interrogatories are 56 in number. Nos. 1-25, inclusive, and 32-44, inclusive, relate to the issues above indicated in substance, among the various issues which the pleadings raise. These interrogatories will be first considered.

Interrogatories 1-25 (except 1-3, inclusive, which are merely introductory) are said in the brief on Wolcott's behalf to relate to the question whether Fessenden's act in entering into the alleged contract E was previously authorized by or subsequently ratified by Wolcott. They call upon Fessenden to state upon oath in advance of the hearing (4) whether it is true that in executing Exhibit E he did not act for Wolcott; (5) if not true, under what authority he did act; (6) if under oral statements or instructions, what they were in full; (7) when each statement was made; (8) where; (9) to whom; (10) who was present when each was made; (11) if he acted under any written instrument, document or communication by or on behalf of Wolcott, what it was; (12) annexing copies, if in his possession, or otherwise making 'reasonable discovery thereof'; (13) whether it is true that he had no communication with Wolcott between September 11, 1908, and January 1, 1912; (14) if not, when he had such communication; (15) where; (16) annexing, if in writing, each writing or a copy, or otherwise making 'reasonable discovery thereof'; (17) whether anything was said in any of them about the 'matters set forth in the intervening petition herein'; (18) what; (19) by whom; (20) whether it is true that he had no communication with Wolcott in or before September, 1908, about any action to be taken by him on Wolcott's behalf in executing Exhibit E or any similar agreement; (21) if not, when he had such communications; (22) what they were in substance; (23) whether it is true that he had no such communication with Wolcott after September, 1908; (24) if not, when he had such communications; (25) what they were in substance.

Interrogatories 32-44 are similar in character, and relate, as is said in the brief on Wolcott's behalf, to the subject of the authority, if any, from Wolcott, under which Fessenden undertook to bind Wolcott to the alleged modification of December, 1908.

Among the objections specified in the motion to strike out, that numbered 2 may be first considered. It is that the above interrogatories relate to facts and documents clearly available to both parties. That such is the fact is obvious; what passed between Wolcott and Fessenden, orally or in writing, is clearly within the knowledge of both so far as appears. No document is alleged to be within Fessenden's exclusive control, nor any fact inquired about to be within his exclusive knowledge. That a bill in equity is not maintainable for the discovery of that regarding which the plaintiff has the same means of information as the defendant is apparently conceded on Wolcott's behalf; and I think rightly, at least when, as here, the suit is to be in a federal court, is not one wherein discovery alone is sought, and is brought for the purpose of withdrawing from a court of law matters of strict legal cognizance. See Brown v. Swann, 10 Pet. 497, 9 L.Ed. 508, and the comments thereon in Colgate v. Compagnie, etc. (C.C.) 23 F. 82, 84, 85. There are also strong grounds for believing that the above result must follow from the normal and natural meaning of the term 'discovery' (whatever it may have been made to include for the purposes of statutes enacted in other jurisdictions), and that it is essential to discovery properly so called that there be something exclusively or peculiarly within the knowledge or control of the party required to disclose or produce it. See Rosenberger v. Shubert (C.C.) 182 F. 411, 418, where reference is made to definitions; The Eros, 224 F. 194. No doubt in most cases such exclusive or peculiar knowledge or control would be presumable from the fact that disclosure was being sought from an opposite party. Here the pleadings have made it clear that no such situation exists.

It is contended, however, that no such limitation applies to discovery sought, as by these interrogatories, under rule 58 of the new Equity Rules (198 F. xxxiv, 115 C.C.A. ...