
    Frederick H. Smith, Jr., Respondent, v. Henry J. Crocker, Appellant, Impleaded with Others.
    
      Plea in bar — actions may be pending in several States to recover the same debt— the court will take jurisdiction of an action on contract although both parties are nonresidents.
    
    A party may have actions against the same defendant, to recover the same indebtedness, pending in different States at the same time, and the pendency of an action in one State to recover a debt cannot be successfully pleaded in abatement of an action in another State to recover the same debt. It is only where one of the actions has ripened into a judgment that such judgment can be pleaded in bar to the other action.
    .The courts of the State of New York will entertain jurisdiction of an action upon contract, although both the plaintiff and the defendant are non-residents of that State. It is only in actions for tort that special reasons must be shown to induce the court to assume jurisdiction.
    Appeal by the defendant, Henry J. Crocker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of August, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of August, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The complaint in this action alleged that the defendants, desiring to have a test made of a certain process for the manufacture of champagne and- other wines in the State of California, with a view to purchasing the same, on or about the 18th day of April, 1891, promised and agreed to and with the1 International Wine Company that if said company would ship a plant for the demonstration of said process to California, and there make a demonstration of the same by the manufacture of 100 cases of champagne, that upon the delivery of said 100 cases of champagne to them they would at once pay to said company the sum of $5,000, for and in consideration of the said company’s shipping said plant and making said demonstration as aforesaid. "
    That thereafter the said International Wine Company did ship •such plant to California, and. did make such demonstration of its process, and manufactured and tendered to the said defendants the 100 cases of champagne so agreed to be manufactured by it, and duly performed all the conditions precedent upon its part. That thereupon the said defendants became indebted to the said International Wine Company in the said sum of $5,000,.no part of which has been paid.
    That prior to the commencement of this action the said International Wine Company, for a good and valuable consideration,.duly sold,, assigned and transferred to this plaintiff all its right- in and to said claim for $5,000 against said defendants.
    
      Gha/rles IT. JBeehmcm and Charles B. Alexander, for the-appellant.
    
      J. A. Dennison, for the respondent.
   O’Brien, J.:

Upon the former appeal (3 App. Div. 471, where the facts bearing upon this controversy were stated) the principal issue was, whether certain persons were agents of the defendants and of others jointly interested with them, or whether they were agents of a corporation ; and for the reason that the plaintiff was prevented from presenting evidence tending to charge the defendant Crocker, personally, a new trial was ordered. Upon ¡this trial the evidence• formerly excluded was admitted, and, in addition to other new testimony, we have that of Ferris. He and one MicCondry were the persons in California through whom the contract was made. As said in the former opinion : Was it (the contract), by Ferris & McCondry, on their own behalf, or acting as agents for a company known as the Golden Champagne Company, or as the agents for certain defendants, including the defendant Crocker, who, as partners or as joint owners, were engaged in the production of champagne ? ” •

Upon this new trial it appears that Ferns and McCondry were acting as agents; and the main issue is thus narrowed down to a question whether they were agents for ■ the Golden Champagne Company or for the defendant Crocker and others, as partners or joint owners. In the proposition of the International Wine Company we find that it speaks of a company, and no doubt it assumed it was dealing with a company ; but we have now some evidence,, though slight, tending to show that at the time there was no company in existence, but that the defendant Crocker, with others, had. concluded to try the experiment of making champagne with the machinery and process of the International Wine Company, and had in mind the formation of the Golden Crown Company, which appears subsequently to have been formed. We say the testimony as to the date when the company was formed is slight, because the-exact date was not directly shown by either the plaintiff or the-defendant. We have, however, the fact that the proposition of the International Wine Company was of the date of April 7,. 1891, and the telegram in answer thereto was sent in the same month; and upon the receipt of the latter the plant was shipped to California and was set up at a place called Clover-dale, about the 14th of May, 1891. The pleadings in an action-in the Superior Court of the State of California by this plaintiff against McCondry and Ferris were offered by the defendant and admitted in evidence. In McCondry’s answer we find a. statement that, pursuant to agreement, “ these defendants and said Crocker, Prescott, Kellogg, Casey and Sink did organize a corporation, on' the 13th day of May, 1891,. known as the Golden Crown Wine-Company.” If the date thus fixed was not correct it was in defendant’s power to correct it, which he did not do. And as we liavesaid, therefore, there'was some evidence from which the jury could infer that the contract then made was on behalf of the defendant Crocker and others, who at that time were individually, and not as a. corporation, conducting the negotiations. That the proposition of the International Wine Company was presented to Crocker, and that he took part in arranging the terms and in providing the „$5,000, which was agreed to be paid,- are fairly shown by evidence, ' sufficient to justify the jury in drawing such an inference. Upon the main issue, therefore, there was sufficient to present the question to the jury, and unless there were errors made in rulings upon evidence or upon some question of law their verdict should not be disturbed. . • ■

In passing, it is proper to say that we have ' not overlooked the suggestion that the plaintiff’s assignors- did not carry out and complete the contract by tendering the 100 cases of champagne. But this also upon the evidence was for the jury.

Much testimony offered by the defendant, directed to showing that the wine produced by the plant was .unmerchantable and of inferior quality, was ruled out by the court. We think such rulings were light. The plaintiff’s assignors entered into no contract guaranteeing the quality of the wine, nor did it agree to make it equal to the samples, which by the process were made in Hew York. Thus in their proposition the wine company say: “ That company (referring to those in California) must also understand that the sample sent them, like all our champagne, is made from imported wine, and we cannot guarantee that champagne from California wines will be the same in flavor as that made from the imported article, but as to life and purity we will test it with the sample sent them. Mr. Ferris’s expressions as to our furnishing. champagne as good as sample must be taken with this qualification.” Equally untenable is the contention that the International Wine Company was not entitled to $5,000, but was only' to be reimbursed for any expense it might incur in shipping its plant and exploiting its process in California, because, we think, the fair reading of the letter will show that that sum was fixed upon as a liquidated amount. Thus in its proposition the wine company says: “ If then that company (meaning the California people) will agree to pay the five thousand dollars on the above condition, that is, to defray the expenses of the demonstration, we will ship the plant, otherwise not.” That it shipped the plant, and that it endeavored to apply its process to California wine is not disputed, nor does any.good and sufficient reason appear why the defendants should not, according to the terms of their contract, have paid over to-the plaintiff’s assignor the $5j000 which was deposited in the Cloverdale Bank; that the results did not come up to their expectations; that the experiment was not successful with California wine, and that the defendants were disappointed, does appear. But we do not think this is any sufficient reason for depriving the plaintiff’s assignor of ^ the benefit of its expenditures in making the experiment a success,' the failure of which the California people have voluntarily assumed.

In addition to questions raised by the appellant bearing, upon the merits, all of which have been considered and the principal ones discussed, we have two others relating to'the right of the plaintiff to maintain this action.

It appears that this plaintiff sued Ferris and MeCondry in California upon the same contract, and to obtain the same relief as by the verdict of the jury has been accorded to him here. Having made this appear, the defendants asked the trial judge to charge, in effect, that, by suing the parties named in California on the same cause of action, the plaintiff elected, and that, therefore, lie is prevented from maintaining an action against the defendants in our courts, the reason assigned being that the plaintiff could not sue on. the same cause of action two different people in two different jurisdictions. This request, we think, was properly refused. A party may have pending actions against the same defendant to recover the same indebtedness in different States at the same time, and the pendency of an action in one State to recover a debt cannot successfully be pleaded in abatement in an action in another State to recover the same debt. It is only where one of the actions has ripened into a judgment that such judgment can be pleaded in bar in the other action.

The contention that, because both the plaintiff and the defendant Crocker are non-residents, the trial court should have refused to entertain jurisdiction ■ of the cause, we regard as equally untenable. We are referred to a number of cases (Ferguson v. Neilson, 33 N. Y. St. Repr. 814; Robinson v. Oceanic Steam Nov. Co., 112 N. Y. 315) in which it was held that the courts of this State will not retain jurisdiction'of and determine an action for tort between parties residing in other States on causes of action arising out of the State, as a matter of public policy, unless special reasons are shown to exist which make it'necessary or proper so to do. An examination of the cases cited, as well as of all to which cur attention .has been called where that rule has been applied, Were actions in tort, and not-actions upon a contract. Our courts have never refused to- entertain jurisdiction of a cause of action arising upon contract. In the case of Davidsburgh v. The Knickerbocker Life Ins. Co. (90 N. Y. 526) it was held that as the City Court of Brooklyn was a local court, of limited jurisdiction, unless the defendants came within the classes, over which the statute had conferred jurisdiction upon this ■ court,, the parties could not confer jurisdiction by consent. This case is in no respect an authority for the rule contended for by the appellants. Whether, therefore, this contract was made in California or New York — upon which question much in favor of the view that it was a New York contract might be said — we do not think, it is necessary tO' determine; as it appeal's that the action was one upon contract, the court committed no error in entertaining jurisdiction of. the cause.

■ Having concluded that, upon the questions of law, the appellant’s. contentions cannot be sustained, and that we would not be justified in interfering with the verdict of the jury, it follows that the judgment should be affirmed, with costs.

Yak Brunt, P. J., Williams, Patterson and Ingraham, JJ.,. concurred.

Judgment affirmed, with costs.  