Union Paving Company v. Downer Corporation

This is an appeal from an order of the district court finalized pursuant to Federal Rule of Civil Procedure 54(b), 28 U.S.C.A., dismissing appellant’s sixth counterclaim against appellee. Appellee’s motion to augment the record on appeal is granted.

The facts in the case are these: Appellee and appellant joined together in a joint venture for the purpose of constructing a sanitary sewage system in a subdivision of Bakersfield, California. In the course of this work it became necessary to purchase a used sludge pump to test the project’s disposal plant. Through the efforts of one R. E. White a used sewage system which included such a pump was obtained. This used system was paid for one-half by White and one-half by the joint venturers on the Bakersfield project, appellant and appellee. Unfortunately the Bakersfield joint venture terminated in litigation, appellee suing appellant in federal court for an accounting. Appellant’s sixth counterclaim, the one here in question, alleged that appellee had converted to its own use the above mentioned used sewage system. Prior to appellee’s federal action White had brought suit in state court seeking to quiet title to the used sewage system…