
    ELMER H. HAVENS, TRUSTEE IN BANKRUPTCY OF THE LOCOMOBILE COMPANY; THE LOCOMOBILE COMPANY OF AMERICA; HARE’S MOTORS, INCORPORATED, v. THE UNITED STATES
    [No. B-355.
    Decided December 1, 1924]
    
      On the Proofs
    
    
      Misjoinder of parties plaintiff. — Where persons having no interest in the subject-matter of the suit have been made parties plaintiff, their names may be stricken from the record and judgment awarded to the party entitled thereto.
    
      The Reporter's statement of the case:
    
      Mr. W. Ainsworth Parher for the plaintiffs.
    
      Mr. Howard J. Bloomer, with whom was Mr. Assistant Attorney General Robert H. Lovett, for the defendant.
    The following are the facts as found by the court:
    I. The Locomobile Company is a corporation organized and existing under the laws of the State of Delaware, having its principal office and place of business in the city of Bridgeport, Conn.
    II. On April 1, 1920, the Locomobile Company bought of the Locomobile Company of America, a corporation of the State of West Virginia, its factory located in the said city of Bridgeport, and all its other tangible property, real and personal, situated in the said city of Bridgeport and elsewhere, including all automobiles, automobile trucks, and parts, manufactured and partly manufactured, all raw and partly finished materials and office furniture.
    
      Thereafter-the said Locomobile Company continued the business previously carried on by the Locomobile Company of America with the employees (except certain officers) theretofore employed by the Locomobile Company of America, and manufactured automobiles, automobile trucks and spare parts in the said city of Bridgeport at the factory theretofore owned and operated by the Locomobile Company of America and engaged in the sale of automobiles and automobile trucks and spare parts in the said city of Bridgeport and at the branch offices previously owned and operated by the Locomobile Company of America. Following the acquisition of the property of the Locomo-bile Company of America the Locomobile Company advised the Government that it was a different corporation from the Locomobile Company of America and was its successor in the business.
    III. On February 1, 1922, a petition in bankruptcy was filed against the said Locomobile Company in the District Court of the United States for the District of Connecticut; Elmer H. Havens and Edmund S. Wolfe were appointed the principal receivers thereof in said proceeding and ancillary receivers were appointed in other jurisdictions. Said receivers thereupon carried on the business theretofore carried on by the said Locomobile Company. On September 26,1922, the said Locomobile Company was duly adjudicated a bankrupt in said proceedings, and on October 6, 1922, the plaintiff herein, Elmer H. Havens, was duly elected trustee in bankruptcy, and appointed by the said court and qualified as such. Said Elmer H. Havens, as such trustee, instituted this suit in accordance with authority duly conferred upon him in said proceeding.
    IY. At various times between April 1, 1920, and April 30, 1922, the United States, by Army officers duly authorized for that purpose, ordered from the Locomobile Company (the orders in certain cases being addressed to the Locomo-bile Company of America or Hare’s Motors, Inc., but given by such officers to and received by the Locomobile Company) a large number of spare parts and other articles, which were respectively duly delivered by the Locomobile Company, or the receivers thereof, to the United States, and were respectively inspected, approved, and accepted by the United States with knowledge that the deliveries were made by the Locomobile Company. Thereupon there became due and payable to the Locomobile Company from the United States the agreed price of said parts and other articles, which agreed price was in each case the reasonable value thereof. The orders given as aforesaid by the United States to the Locomobile Company, the date of delivery of the articles delivered as aforesaid by the Locomobile Company to the United States, and the sums respectively due to the Loco-mobile Company for the said articles are as follows (all of the items are for spare parts except as otherwise noted) :
    
      
    
    The Locomobile Company, or the receivers thereof, have demanded payment of the sums hereinbefore in this Finding set forth. The United States has admitted the same to be due and payable, although certain items were erroneously credited to the Locomobile Company of America, but has refused payment thereof as hereinafter set forth in Finding X.
    V. On or about April 9, 1920, the Locomobile Company delivered to the United States a certain limousine (No. 14776 — one of General Pershing’s cars) owned by the United States, which limousine had been repaired in accordance with instructions theretofore given to the Locomobile Company of America by Army officers duly authorized for that purpose. The repairs on the said limousine had been begun prior to April 1, 1920, by the Locomobile Company of America and were completed after that date by the Locomo-bile Company. The United States, on or about April 9, 1920, received and accepted said limousine, -repaired as aforesaid. Thereupon there became due and payable to the Loco-mobile Company from the United States the reasonable value of said repairs, the same being $1,754.09. The Loco-mobile Company demanded payment of the said sum from the United States. The United States has admitted the said sum to be due, though erroneously crediting the same to the Locomobile Company of America, but has refused payment thereof as hereinafter set forth in Finding X. ■
    VI. On or about April 22, 1920, the Locomobile Company delivered to the United States a certain limousine (No. 14781 — one of General Pershing’s cars) owned by the United States, which limousine had been repaired in accordance with instructions theretofore given to the Locomobile Company of America by Army officers duly authorized for that purpose. The repairs on the said limousine had been begun prior to April 1, 1920, by the Locomobile Company of America and were completed after that date by the Loco-mobile Company. The United States on or about April 22. 1920, with knowledge of the facts hereinbefore stated, received and accepted said limousine repaired as aforesaid. Thereupon there became due and payable to the Locomobile Company from the United States the reasonable value of said repairs, the same being $1,985.72. The Locomobile Company demanded payment of the said sum from the United States. The United States has admitted the said sum to be due, though erroneously crediting the same to the Locombile Company of America, but has refused payment thereof as hereinafter set forth in Finding X.
    VII. On or about July 31, 1920, the Locomobile Company delivered to the United States certain spare parts for automobile trucks in accordance with purchase order 387 theretofore issued by Army officers duly authorized for that purpose to the Locomobile Company of America. The United States on or about July'31, 1920, knowing that the said spare parts had been delivered to it by the Locomobile Company, received and accepted the said spare parts. Thereupon there became due and payable to the Locomobile Company from the United States the reasonable value of said spare parts, the same being $26.88. The Locomobile Company demanded payment of the said sum from the United States. The United States has admitted the said sum to be due, though erroneously crediting the same to the Locomo-bile Company of America, but has refused payment thereof as hereinafter set forth in Finding X.
    VIII. The Locomobile Company of America, joined as plaintiff in the amended petition, did not in the case of any of the claims on which this suit is based make delivery of the articles to or perform the services for the United States.
    IX. Hare’s Motors, Incorporated, joined as plaintiff in the amended petition, is a corporation which acted merely as selling or delivering agent for the Locomobile Company in respect to certain of the deliveries on which the claims are based.
    X. The Auditor for the War Department has refused to pay to the Locomobile Company the sums hereinbefore set forth, because of a claim asserted by the United States against the Locomobile Company of America amounting to $200,833.30 for alleged overpayments by Lieut. Col. Daniel W. Arnold and Capt. John Heron. Notice was given by the Locomobile Company that it was a different corporation from the Locomobile Company of America. The said claim of the United States against the Locomobile Company of America was disallowed by this court and held invalid in its opinion and judgment entered June 12, 1922, in case No. 34119, in which case'the Locomobile Company of America had brought suit to recover the sum of $5,454.39 for performance of Contract Motors 3116.
    The court decided that Elmer H. Havens, trustee in bankruptcy of the Locomobile Company, was entitled-to recover.
   Graham, Judge,

delivered the opinionof the court:

This is a suit for the purchase of spare parts and other articles and for repair work done to automobiles at different times under orders duly issued by officers of the United States authorized for that purpose. The goods were received and the work accepted by the defendant and the amounts admitted to be due. Payment was refused upon the ground that the defendant had an offset which in amount more than covered the claim. It is unnecessary to discuss the offset. It has been ruled upon in a previous case by this court, Locomobile Gompany of America, 57 C. Cls. 617, and there is no proof as to it in the record. The facts are not in dispute, and the Government states that it does not object to the request for findings of fact of the plaintiff.

The parties plaintiff named in the petition are Elmer H-Havens, Trustee in Bankruptcy of the Locomobile Company, The Locomobile Company of America, a corporation, and Hare’s Motors, Incorporated, a corporation. The latter company was a subsidiary of the Locomobile Company and its sales agent. Prior to April 1,1920, the Locomobile Company of America, a corporation of the State of West Virginia, owned a factory located in the city of Bridgeport, State of Connecticut, with certain real and personal property, and on that date the Locomobile Company, a corporation of the State of Delaware, bought of the Locomobile Company of America this factory and all of its tangible property, real and personal, including automobile trucks, parts, raw and partly finished material. Thereafter, orders were delivered by the duly authorized officers of the defendant to the Locomobile Company for the delivery of spare parts and other articles and for doing certain repair work to automobiles. Some of these orders were addressed to the Locomobile Company of America and some to the Hare’s Motors, Incorporated, but the work was all done and the materials all furnished by the Locomobile Company, and were received and accepted by the defendant’s authorized representatives from it without dispute or question as to the amount involved; but, as stated, payment was refused on the ground that defendant possessed a claim of offset against the Locomobile Company of America, and for this reason refused to pay the claim. It is unnecessary to say more of the offset than what has been said above.

Later the Locomobile Company was adjudged a bankrupt and Elmer H. Havens was duly appointed trustee, and authorized by the court so appointing him to bring suit to recover the amount of the claims herein disputed.

It is evident from the facts that the only party having a right to recover for the claims herein asserted is the said trustee in bankruptcy of the Locomobile Company. Neither the Locomobile Company of America nor the Hare’s Motors has any interest in these claims and they have been improperly made parties plaintiff.

The legal right here is in the said trustee alone. There is no privity of right as to these claims between the plaintiff Elmer H. Havens, trustee, etc., and the other plaintiffs; the latter possessed no rights of property in the claims. They and neither of them have any identity of interest with the said trustee. They have no interest at all and were erroneously and improperly joined as parties. This mis-joinder the court will correct.

It has been its practice where it has taken jurisdiction in a case such as this, in which the claim is for money asserted to be due by the United States, to take such action as it may deem necessary to finally dispose of the claim litigated and give judgment in favor of the real party in interest, the party who, under the facts, is shown to be the party entitled to recover, and will strike from the record the names of those who have been improperly joined as plaintiffs. In the case of Benton v. United States, 5 C. Cls. 692, 695, the suit was erroneously brought in the name of the husband and wife. It appearing just prior to the argument that the wife was not a proper party and had no right to recover, the court, on motion, struck out her name and after having entered judgment in favor of the husband. In Ramsdell & Smith v. United States, 2 C. Cls. 508, it appeared that Ramsdell took contracts in his own name, though he was in fact acting not for himself but as the agent of Smith, and was not a real party in interest. The court held that the misjoinder would be disregarded and ■entered judgment in favor of Smith as the real party in interest. The court said: “ but the evidence shows that Smith was the party and the only party in interest in the contract; that he alone furnished the guns, and was alone entitled to the payment for them.” See to the same effect Thompson et al. v. United States, 9 C. Cls. 187, 198, where the plaintiff sued on a contract made in the name of T. T. Taylor, who the proof showed was his agent. The court held that the plaintiffs being the real parties in interest, judgment should be entered in their favor.

As to the Locomobile Company of America and Hare’s Motors, suit should be dismissed and judgment for the amount claimed in the petition entered in favor of Elmer H. Havens, trustee in bankruptcy of the Locomobile Company,, and it is so ordered.

Hat, Judge; Downet, Judge; Booth, Judge, and Campbell, Chief Justice, concur.  