77 F. 935 | U.S. Circuit Court for the District of Southern New York | 1897
(after stating the facts). For 10 years the controversy between these parties has been the subject of bitter and uninterrupted litigation both in the state and federal courts. It is impossible to read the history of that litigation without being impressed with the fact that every matter in difference between them was involved, considered and decided. From the very nature of the controversy it is impossible that this should be otherwise.
The circuit court of appeals says in the prevailing opinion:
“The case was referred to the master ‘to take and state the accounts between the parties’ upon consent in writing, signed by counsel, after exceptions sustained to the answer, upon the bill, without being taken pro confosso or admitted by further answer or otherwise established. This course submitted to the master all of the issues which would be involved in taking the accounts.”
It is manifest that one of these issues was the account between the New York and Brussels houses. The profits of the former could not be ascertained until it was known how much was due the latter. The Brussels house furnished goods to the New York house. The opinion says further:
“The accounts appear to be taken by the master with much painstaking care, and his conclusions appear to have been reached upon warrantable evidence, well weighed and considered by him.”
The court considers the items of interest charged by the Brussels firm and concludes that the master was correct in allowing them,
Duden & Go., of Brussels, was Herman Duden, the complainant in the former action. He presented the claim of the Brussels house to the master and it was allowed. The present bill alleges that this was error, that the master’s decision is a nullity, and that although the appeal from the decree sustaining his decision was unavailing, “equity should do justice between the parties now.” This is precisely what equity has been endeavoring to accomplish for 10 years. The task is finished. Though the present bill is in theory against the Brussels house it is in fact for a new accounting, and this, too, after equity has found Maloy indebted to'Duden on parlnership account in the sum of $5,670 and after Maloy has paid the judgment. If the scheme succeeds, the complainant, who has been defeated at every stage, and who has been adjudged to have no interest, whatever in the New York firm, will, by the pleasing fiction of suing Duden under the name of the Brussels firm, succeed in opening the entire controversy between them. ¡
That the parties to this litigation are the same individuals as in the former litigation viz.: Michael F. Maloy and Herman Duden is undisputed. But it is said the parties are different because the words “as surviving partner,” etc., are added to the defendant’s name, and this, too, in the teeth of repeated allegations of the bill that “Duden & Co. was composed solely of Herman Duden,” “was but another name for Herman Duden” and was Duden’s “other self.” That a settlement of the Brussels account was necessary to the determination of the former suit and that it was the subject of bitter controversy between the same two men who are parties to this action cannot be controverted. Each presented to the master a statement showing the account as he believed it to exist. Each was examined and cross-examined. The books and letters of the Brussels house were before the master in open court. If they were not examined down to the most minute detail it was only because the complainant did not. deem it necessary.
An examination of the reports and decisions demonstrates that the matters regarding which most complaint is made — the interest account and the factory property — received the most careful scrutiny and painstaking consideration. Indeed, everything that could be done was apparently done by Maloy to induce the master to accept his version of the transaction, and, after the report against him, to upset the master’s findings in the courts. Everything could have been done in that action which can be done in this. It is no ground for a bill like this that the complainant has discovered some new testimony or method of attack which might have been availed of with good results in the former suit. The bill instead of stating a new cause of action is little more than an assignment of errors. It contains a list of grievances and allegations, which if proved will, in the complainant’s judgment, enable him to make a better showing on a second accounting. The court is not at libertv to permit a second accounting, for the reason that the controversy be
Even though the court were in doubt upon this plea the decision would be the same, because jt is, manifestly for the advantage of all that the question should be finally decided before the flood-gates of this accounting are again opened. The plea of res judicata is allowed:
