Old Dominion Copper Mining & Smelting Co. v. Lewisohn

Second Circuit

Old Dominion Copper Mining & Smelting Co. v. Lewisohn

202 F. 178, 120 C.C.A. 392, 1913 U.S. App. LEXIS 1005

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 13, 1913

DocketNo. 101

StatusPublished

Cited by10 cases

This text of 202 F. 178 (Old Dominion Copper Mining & Smelting Co. v. Lewisohn) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Old Dominion Copper Mining & Smelting Co. v. Lewisohn, 202 F. 178, 120 C.C.A. 392, 1913 U.S. App. LEXIS 1005 (2d Cir. 1913).

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Opinions

COXE, Circuit Judge.

The facts- bearing upon every phase of this controversy have been stated so often, not only in the federal courts, but also in the courts of Massachusetts that no useful purpose will be subserved by restating them. See 210 U. S. 206, 28 Sup. Ct. 634, 52 L. Ed. 1025; 225 U. S. 111, 32 Sup. Ct. 641, 56 L. Ed. 1009; 148 Fed. 1020, 79 C. C. A. 534 (C. C.) 195 Fed. 637; 203 Mass. 159, 89 N. E. 193, 40 L. R. A. (N. S.) 314. It is, of course, unfortunate that the entire burden of the alleged fraudulent transactions conr-plained of must fall upon Bigelow alone, but that result is due to the fact that the Supreme Judicial Court of Massachusetts is not in accord upon the law with this court and the Supreme Court of the United States.

[1] Manifestly it is our duty to follow the law of the Supreme Court unless the present record contains facts which clearly differentiate the present case from the case on demurrer. That every opportunity was given to state the facts in the 30,000 share suit cannot be denied. With full knowledge of the infirmities of the bill, after it had been held insufficient on demurrer, it was amended in an attempt to meet the criticism of the court. Every fact which could be relied on to remedy the fatal defects pointed out was stated by the pleader, and the facts were as accessible then as they were when the present bill was drawn. The most favorable statement of the cause of action consistent with the facts was presented by the amended bill. The same result followed, the demurrer to the amended bill was sustained and the ruling was affirmed by this court and the Supreme Court of the United States. We are unable to understand how the differences in the facts, pointed out at the argument, between this case and the case on demurrer change the legal aspect of the controversy. We think that the differences in the facts are inconsequential and that the same result must follow in either case. The opinion of the Circuit Court sufficiently states our conclusions in this regard.

[2J But the decree in the demurrer suit is res judicata of the present controversy. The parties are the same, the subject-matter is the same and the questions are the same. Having stated the facts with great care and deliberation and having amended the bill to meet the criticism of • the defendants, the appellant cannot now be permitted to assert that these facts are untrue and assert a new cause of action based upon different facts. The bill stated the facts as the appellant understood them, the defendant admitted the statement to be correct; on this statement the court rendered its decree and on these facts this court and the Supreme Court rendered their judgments. Even if [180]*180there were important differences on the facts, it is too late to assert, them now.

The facts regarding the July meeting, its validity and finality, are admitted by the demurrer. The appellant is not now permitted to assert that these statements are untrue and that the transaction was not consummated until after the public, with no knowledge of the transaction, had subscribed for 20,000 shares of the stock.

The decree is affirmed with costs.

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COXE, Circuit Judge.

The facts- bearing upon every phase of this controversy have been stated so often, not only in the federal courts, but also in the courts of Massachusetts that no useful purpose will be subserved by restating them. See 210 U. S. 206, 28 Sup. Ct. 634, 52 L. Ed. 1025; 225 U. S. 111, 32 Sup. Ct. 641, 56 L. Ed. 1009; 148 Fed. 1020, 79 C. C. A. 534 (C. C.) 195 Fed. 637; 203 Mass. 159, 89 N. E. 193, 40 L. R. A. (N. S.) 314. It is, of course, unfortunate that the entire burden of the alleged fraudulent transactions conr-plained of must fall upon Bigelow alone, but that result is due to the fact that the Supreme Judicial Court of Massachusetts is not in accord upon the law with this court and the Supreme Court of the United States.

[1] Manifestly it is our duty to follow the law of the Supreme Court unless the present record contains facts which clearly differentiate the present case from the case on demurrer. That every opportunity was given to state the facts in the 30,000 share suit cannot be denied. With full knowledge of the infirmities of the bill, after it had been held insufficient on demurrer, it was amended in an attempt to meet the criticism of the court. Every fact which could be relied on to remedy the fatal defects pointed out was stated by the pleader, and the facts were as accessible then as they were when the present bill was drawn. The most favorable statement of the cause of action consistent with the facts was presented by the amended bill. The same result followed, the demurrer to the amended bill was sustained and the ruling was affirmed by this court and the Supreme Court of the United States. We are unable to understand how the differences in the facts, pointed out at the argument, between this case and the case on demurrer change the legal aspect of the controversy. We think that the differences in the facts are inconsequential and that the same result must follow in either case. The opinion of the Circuit Court sufficiently states our conclusions in this regard.

[2J But the decree in the demurrer suit is res judicata of the present controversy. The parties are the same, the subject-matter is the same and the questions are the same. Having stated the facts with great care and deliberation and having amended the bill to meet the criticism of • the defendants, the appellant cannot now be permitted to assert that these facts are untrue and assert a new cause of action based upon different facts. The bill stated the facts as the appellant understood them, the defendant admitted the statement to be correct; on this statement the court rendered its decree and on these facts this court and the Supreme Court rendered their judgments. Even if [180]*180there were important differences on the facts, it is too late to assert, them now.

The facts regarding the July meeting, its validity and finality, are admitted by the demurrer. The appellant is not now permitted to assert that these statements are untrue and that the transaction was not consummated until after the public, with no knowledge of the transaction, had subscribed for 20,000 shares of the stock.

The decree is affirmed with costs.

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202 F. 178, 120 C.C.A. 392, 1913 U.S. App. LEXIS 1005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/old-dominion-copper-mining-smelting-co-v-lewisohn-ca2-1913.

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