Julius Kessler & Co. v. E.F. Perilloux & Co.
| Decision Date | 03 October 1904 |
| Docket Number | 1,293. |
| Parties | JULIUS KESSLER & CO. v. E. F. PERILLOUX & CO. et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
The plaintiff in error, Julius Kessler & Co., was, in 1900, and still is, a corporation created under the laws of West Virginia, with authority under its charter to operate distilleries, make and sell whisky and all other distillery products, with power to warehouse grain and distillery products as a general public warehouseman, and, as such owned and operated a large number of distilleries in Kentucky and elsewhere outside of Louisiana, and sold and disposed of its manufactured whisky in interstate trade, and had a large quantity of whisky so held in bonded warehouse, subject to release from all government claim or possession on payment of the internal revenue tax of $1.10 per proof gallon, to be held in their own distillery bonded warehouses, to be released as soon as tax paid.
On the 20th of October, 1900, defendants in error, constituting the firm of Perilloux & Co., at New Orleans, entered into an agreement with the agents of plaintiff in error by which they purchased 225 barrels of whisky, in bond in the Kentucky distilleries, in the warehouses of plaintiff in error, such warehouses being, as above stated, also United States bonded distillery warehouses, situated in Kentucky, the whisky being non-tax paid.
The sale was for an agreed price for the whisky in bonded warehouse, nontax paid, and defendants signed the following statement and memorandum of the sale, which is in the record designated 'Kessler-A,' the following being a copy:
At the time of this sale the total price of the goods sold, and the amount to be paid therefor in notes of defendants in error, could not be accurately stated, nor could a full description of brands, and amount of gallonage in proof gallons, be given as to the 225 barrels sold, and therefore was not set out in this writing, for the reason that Mr. Brady, the agent of Kessler & Co., had not with him warehouse receipts for all of the brands purchased by defendants in error, and was compelled to write the corporation at Chicago for the required warehouse receipts, as well as for approval of the sale, and its terms by the proper officer of the corporation.
On the 27th of October, 1900, the sale having been approved, Kessler & Co. transmitted to Mr. Brady at New Orleans, he being their agent, warehouse receipts for 225 barrels of the whisky sold, also receipt for 2 barrels of whisky thrown in at the time of the sale. These receipts covered all of the goods purchased by defendants in error on October 20th, each receipt covering five barrels of whisky, with the exception of the one covering the two barrels given as bonus, and were all in the same form and subject to the same condition as the Atherton & Co. distillery whisky, as follows, to wit: (RECEIPT OMITTED)
'Received and stored in our United States Bonded Distillery Warehouse of our Atherton Distillery No. 87 situated in New Haven in the 5th District of Kentucky, Five (5) Barrels Atherton Rye Whisky, to be held by us on storage and on account of and subject to the order of E. F. Perilloux & Co., deliverable only upon payment of the United States taxes and all other taxes and charges and storage on said whisky at the rate of five (5) cents per barrel per month, from date of entry and payment of the purchase price of said whisky or of the notes given therefor, and upon the return of this receipt properly endorsed and the written order of the holder thereof. Loss or damage by the elements, fire, riots, accidents, evaporation, leakage, shrinkage or natural decay shall be at the risk of the owner or holder of this receipt.
'(Stamped on face:) Storage and all charges paid to Nov. 1, 1900. --------------------------------------------------------------------------------------- Inspection. Serial Wine Proof. Proof Warehouse U.S. Tax is Unbonded. No. Gall. Gall. Stamp. Gauger. Due. ---------------------------------------------------------------------------------------- 145676 48.69 100 48.69 301371 S.W.Cofer 1896 7 47.53 47.53 2 Jany. 1904. Month 8 49.59 49.59 3 9 46.89 46.89 4 Jany. 145680 49.07 49.07 301375 ------ 241.77 ----------------------------------------------------------------------------------------
'(Stamped across face:) Unbonded Dec. 12, 1902.
'Julius Kessler & Co. (Incorporated), 'By Julius Kessler, President.
'Proprietors of the J. M. Atherton & Co., Distillery No. 87.'
All of the receipts contained the so-called 'purchase clause' as conditions of delivery.
With these receipts in his possession, Mr. Brady, for the plaintiff in error, completed the deal of October 20th on the 27th of October, 1900, by delivering warehouse receipts for the whisky to Perilloux & Co., when that firm, in payment therefor, as the purchase price thereof, at the same time delivered to plaintiff in error their promissory notes for the agreed price of the whisky contained in 225 barrels for which the warehouse receipts had been delivered (2 barrels of whisky seem to have been added to the 225 as bonus on the trade, making 227 barrels in all).
It does not appear that there was any difference or dispute between the parties as to the terms of payment, the defendants in error making their notes in the total sum of $5,086.10 as the total price payable for the goods.
The purchase price of the whisky was not paid in a single note for the entire amount of the price, but the price was divided up into sums satisfactory to defendants in error, and notes given for each amount. All were dated October 27, 1900, each being for a portion of the agreed purchase price, each note maturing at a different date, varying from 4 months to 18 months.
After the sale of the whisky had been concluded and the notes given for the goods delivered, as appears by the evidence made part of the record by bills of exception, the following further agreement was entered into, to wit:
This action was commenced December 31, 1901, by the ordinary form of petition on two unconditional promissory notes, one of the notes of date October 27, 1900, for $1,021.63, due 12 months after date, being one of the original series of notes given for the purchase price of the 225 barrels of whisky in bond; the other note of date July 30, 1901, for $999.50, due 3 months after date, is a renewal of one of the original purchase price notes, renewed at the request of defendants in error at the date of the maturity of the original note renewed.
On January 9, 1902, there was a plea of lis pendens. Before this plea was disposed of in any manner, and on the 25th of the same January, the defendants filed another plea of exception, setting up article 264 of the existing Constitution of Louisiana, given in the plea as follows:
'No domestic or foreign corporation will do any business in this state without having one or more known places of business and an authorized agent or agents in the state upon which process can be served.'
By agreement of counsel those pleadings were tried by the court with written waiver of jury, and both overruled on February 18, 1902.
On application of counsel for defendants in error, the court opened the decree, and allowed the defendants to file a more extended and elaborate plea or exception attempting to cover the same ground, and this time verified under oath. The new pleading was tried and overruled February 19,1902.
On March 19, 1902, the defendants filed another exception to the jurisdiction, in substance averring that there was no ratione persona jurisdiction, because, while the petition alleged that the plaintiff in error was a corporation created by West Virginia, the petition did not allege that the plaintiff corporation was not also a Louisiana-created corporation. This exception seems to have been acted on and overruled by the court on the 8th of April, 1902 (127 F. 1011). The defendants on April 10, 1902, filed a lengthy pleading entitled 'Answer and Reconventional Demand.' The matters averred and relief prayed for in this pleading are sufficiently set forth in the opinion of the court.
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