Palmer v. Arthur

• Decision Date: 13 May 1889
• Citation: 33 L.Ed. 87,131 U.S. 60,9 S.Ct. 649
• Parties: PALMER v. ARTHUR
• Court: U.S. Supreme Court

131 U.S. 60

9 S.Ct. 649

33 L.Ed. 87

PALMER v. ARTHUR.

May 13, 1889.

Walter Evans, for plaintiff in error.

Wm. Lindsay, for defendant in error.

FULLER, C. J.

This is an action at law to recover upon an alleged breach of contract to pay for certain staves made or procured to be made by defendant in error, for plaintiff in error, to be culled, branded, and received by the latter on the Cumberland river and its tributaries, in the counties of Knox and Bell, in the state of Kentucky. The action was commenced in the circuit court of Whitley county, and removed into the circuit court of the United States for the district of Kentucky. The petition of Arthur, the plaintiff below, (omitting the application for attachment,) was as follows: 'The plaintiff, E. F. Arthur, states that before the 30th of May, 1884, he had a contract with the defendant, L. M. Palmer, to make and have made for defendant an unlimited number of staves on the Cumberland river and its tributaries, in the counties of Knox and Bell, state of Kentucky, for which defendant was to pay plaintiff $14 for each 1,000 that were 44 inches in length on the creeks and $15 per 1,000 on the river, $9 per 1,000 for 34-inch staves on the river and $8 per 1,000 on the creeks; that on the 30th of May, 1884, plaintiff had made under the contract 800,000 staves, at which time defendant did not wish any more staves made, and plaintiff and defendant agreed that no more were to be made at the time, and defendant was to pay plaintiff for the staves made, and paid plaintiff at the time $4,017.78 for 286,000 of the staves, and was to pay plaintiff for the remainder, 514,000 staves, on the 1st of November, 1884. Plaintiff states that of 514,000 staves not paid for, and that had been made, 489,000 were 44-inch staves, for which defendant was to pay $14 per thousand, and 25,000 34-inch staves, for which defendant was to pay $8 per thousand; that there was due and owing the plaintiff by the defendant on the 1st of November, 1884, for 489,000, at $14 per thousand, $6,846; for 25,000, at $8 per thousand, $200,—making due and owing the plaintiff by the defendant for said staves $7,046. Plaintiff states that Williamsburg, Ky., is the place where defendant carries on the business of manufacturing staves, etc., and where his authorized agents were located; that at the time the money was due on said staves he called on the agent at his place of doing business for the money, (the defendant being a non-resident of and absent from the state of Kentucky,) and he failed and refused to pay the same, or any part thereof; same still due and owing the plaintiff by the defendant, with interest from the 1st of November, 1884. Plaintiff states that all of said staves have been culled and branded by the defendant, except about 50,000, which it was the duty of the defendant to have culled and branded. Wherefore plaintiff asks judgment for said sum of seven thousand and forty-six dollars, his cost, interest, and all proper relief.' To this petition Palmer, the defendant below, filed an answer, which conceded the existence of the contract, but averred that it was not fully nor accurately set forth by plaintiff, and stated various alleged differences as to the size and character of the staves, and the price to be paid therefor; asserting, also, that 'all upon inspection were to come up to contract requirement,' and that 'the said contract related to and embraced only such staves as might be made by the plaintiff himself, or which might be made by others,...