Dartmouth College v. Cameron , 77 N.H. 66 ( 1913 )

From the allegations of the bill it appears that the claim of Cameron against the plaintiffs, as well as the plaintiffs' claim against the defendant company, depends upon the determination of the simple fact of the quantity of timber or logs delivered to the company under its contract with the plaintiffs. Cameron cut and delivered the logs to the company, and for that labor the plaintiffs are bound to pay him the stipulated price per thousand feet, as ascertained by the company's surveyor, while the company is bound to pay the plaintiffs a certain other price per thousand feet for the logs it has received, according to the same survey. Both claims relate to the same subject-matter and both depend upon the same issue, viz., the quantity of the logs according to the survey of the company's agent, and the issue is provable in both suits by the same or similar evidence. Upon this state of the facts there is no occasion for two trials which might result in dissimilar verdicts upon that issue. Justice seems to require but one trial, by the result of which all the parties will be bound. But an action at law affords an adequate remedy for the accomplishment of this purpose. By changing the bill in equity into an action of assumpsit by an amendment, and by joining Cameron as a plaintiff or by requesting him to join therein (Annis v. Gleason, 56 N.H. 16; Cole v. Gilford, 63 N.H. 60; State v. Collins, 68 N.H. 46; Contoocook Precinct v. Hopkinton,71 N.H. 574, 576), for the determination of the quantity of logs he delivered to the company, the parties will reach a valid and binding settlement of the suits in a single trial. There is no suggestion that in this way any serious embarrassment or inconvenience would be encountered. Procedure of this character, when convenient and equitable, is often resorted to for the speedy and economical accomplishment of justice. See cases cited in Owen v. Weston, 63 N.H. 599, 603, 604. Also, Fitch v. Nute,62 N.H. 700; Peaslee v. Dudley, 63 N.H. 220; Perham v. Fibre Co.,64 N.H. 2; Gage v. Gage, 66 N.H. 282, 296; Smith v. Bank, 69 N.H. 254; Davison v. Davison, 71 N.H. 180; Prentiss v. Box Co., 75 N.H. 605. The superior court may find that justice requires that Cameron's action at law against the college should be continued until this suit is ended. In this view of the case, the demurrer must be sustained.

Case discharged.

All concurred.