Volume 99 — New Hampshire Reports

Equity jurisdiction was properly invoked where the controversy over title to land involved accounting, injunctive relief and a multiplicity of suits all involving substantially identical issues. The fact that the defendants may be deprived of a trial by jury if equity jurisdiction is exercised and that the several suits may be consolidated and tried together to avoid a multiplicity of suits does not as a matter of law deprive equity of assuming jurisdiction where the nature of the case and the relief sought warrants such assumption.

In this state a partnership is a relation or status between individuals, and where it has no more than four members it is not itself subject to suit in the firm name but action must be brought against the parties individually and they must be served individually except when otherwise specifically authorized by statute.<page_number>Page 268</page_number> Personal service of process in, a foreign state upon a nonresident member of a partnership engaged in business here is insufficient to subject him to the jurisdiction of the courts of this state where no property of such member or of the partnership is under attachment here. The fact that but one brief was filed in this court on behalf of all the defendants including the nonresident defendant did not subject the latter to jurisdiction of the courts of this state where he submitted no question other than the sufficiency of the service upon him. Where the procedure in the Trial Court was agreed to by the parties they may not object thereto upon transfer of the case to the Supreme Court. In ordering the production of documents and records sought by a motion for discovery all special findings necessary to justify the order are presumed to have been made. The allegations of the plaintiff that the manufacture and sale of certain automotive devices by the defendant partnership was so closely associated with the existing and prospective activities of the corporation of which they were officers and directors that they should fairly have acquired that business for or made it available to the corporation, and failure to do so was a breach of their fiduciary relationship, stated a sufficient cause of action to be entitled to discovery of certain of defendants' records to enable the plaintiff stockholder to properly prepare its case. In such case, it was not necessary to the granting of plaintiff's motion for discovery that the Trial Court first determine that the defendants in fact violated their duties as officers and directors and that the partnership property was impressed with a trust in favor of the corporation.

The liabilities of an insurer arising out of a contract of motor vehicle liability insurance are governed by the law of the state where the policy is issued and performance in some degree contemplated by the parties.<page_number>Page 374</page_number> The fact that the policy provided coverage to those operating the vehicle with the insured's permission and that such permission is alleged to have been granted in another state where the vehicle was being used did not render applicable the law of that jurisdiction in the absence of an agreement to that effect. Where the motor vehicle of the insured had been given to his son "to use for all purposes as though it were his own" and a policy of liability insurance thereon provided coverage to those operating it with the insured's permission the question of whether coverage extends to the use of such vehicle by a third party is to be determined on the basis of whether its actual use was with the son's permission. Under the law of Pennsylvania in such case where the vehicle was being driven at a time and place which the son had authorized but permission for its use was granted only upon the condition that A be excluded as a passenger, the operation of such vehicle by A at the time of the accident without the knowledge or consent of the son was not an actual use permitted or authorized by the insured within the meaning of the policy. Under Pennsylvania law, a letter of refusal by an insurer to pay damages under a motor vehicle liability policy for the sole reason of nonliability does not constitute a waiver of its claim of noncoverage as an additional reason. A ground of recovery not presented at the trial will not be considered in the Supreme Court. The Trial Court's findings of fact in a petition for declaratory judgment constitute a verdict and after such findings are made a voluntary nonsuit may not be taken. The disclaimer of liability by the insurer in a petition for declaratory judgment constituted a sufficient threat or prejudice to the claimants' interest so as to entitle the insurer to final disposition notwithstanding the fact that motions for voluntary nonsuits were filed in the tort actions.