Campbell v. American Fabrics Co. , 3 F.R.D. 3 ( 1943 )

BYERS, District Judge.

Motion by defendant pursuant to Rule 3D(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, that certain depositions be not taken for the reason that depositions taken in a previous cause between the parties have rendered these unnecessary.

Apparently this is an action for a declaratory judgment concerning a contract of February 13, 1939, or for a reformation thereof, under which the defendant is said to be obligated to acquire the plaintiff’s stock in Woodstock Spinning Corporation.

While the issues may not be precisely those heretofore litigated, they are sufficiently similar to require that the testimony now to be taken shall not he repetitious of what has already been adduced.

Accordingly the motion will be granted to this extent:

The witness Lasher is to be examined according to plaintiff’s notice.

The witness Wheeler is to be examined:

(a) With respect to the stock agreement dated February 13, 1939.

(b) With respect to the alleged misrepresentations attributed to plaintiff by defendant prior to and concerning the said agreement.

(c) With respect to the consideration for the issue of the said stock to the plaintiff only, not the consideration for the issue of the defendant’s 51% of the said stock.

The witness Phillips is to be examined:

(a) With respect to the making of the agreements of February 13, 1939, both stock and operating.

He has been sufficiently examined heretofore as to the alleged misrepresentations attributed by defendant to plaintiff; and what has been said with reference to the witness Wheeler with respect to the consideration for the issue of plaintiff’s stock would apply to this witness, had he not already been examined on that subject on October 17, 1938. In view of that testimony, this witness’ deposition will be confined to the paragraph (a) above.

As to the witness Kohler, it is understood that the notice has been withdrawn.

Settle order.