137 F. 625 (S.D.Ga 1905), D.A. Tompkins Co. v. Monticello Cotton Oil Co.

Citation:137 F. 625
Party Name:D. A. TOMPKINS CO. v. MONTICELLO COTTON OIL CO. et al.
Case Date:April 21, 1905
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 625

137 F. 625 (S.D.Ga 1905)

D. A. TOMPKINS CO.

v.

MONTICELLO COTTON OIL CO. et al.

United States Circuit Court, S.D. Georgia, Western Division.

April 21, 1905

Robert C. Alston and Merrel P. Callaway, for complainant.

John R. L. Smith and Greene F. Johnson, for respondents.

SPEER, District Judge.

This cause is under consideration for final decree. All of the evidence has been taken and submitted to the court. The contentions of the parties have been fully argued, and the court has taken time for consideration.

The case is a bill brought in equity to enforce the recovery of the price of certain machinery and equipment used in the manufacture of oil from cotton seed. The cost of the machinery, equipment,

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and installation was $19,000. The complainant is a manufacturer and dealer in such machinery, and a contractor for its installation. The defendants were the projectors, and subsequently became the incorporators, of the Monticello Cotton Oil Company. While these persons, as the contract was made with them, were made parties, the principal defendant is the oil company. It appears from the evidence that the machinery was manufactured or furnished by the complainant, and installed in the mill of the defendant company. A dispute arising between the parties, and it being denied by the defendants that there was a substantial compliance on the part of the complainant with its contract to furnish and install the machinery within the time limited, payment of the full amount claimed was denied. The bill was then brought. As originally presented, this had a double aspect. It was alleged that complainant was entitled to a materialman's or contractor's lien, as defined by the law of Georgia. A suitable prayer was made for the enforcement of such line. It was also alleged that the contract between the parties was a conditional sale, and, since the condition of payment had not been complied with, the bill also presented a prayer for an order directing the recaption or restitution to the complainant of the machinery and equipment sold, delivered, and installed. However the averments and the prayer with relation to this construction of the contract are not merely for recaption. It is alleged that since the machinery has been installed and attached to the realty, or otherwise built into the plant, it is impossible to retake it in its entirety without great loss, and the court is asked to frame such a decree as will enforce the equitable rights of the vendor. While the bill rested in the form thus described, a demurrer was interposed thereto. The principal ground of this was that the court was without equitable jurisdiction. It appearing, however, to the court that the bill, by its averments, made obviously a case for the enforcement of a statutory lien authorized by state law, this demurrer was overruled. Answer and replication having been filed, and the evidence taken, the case was assigned for hearing. On the hearing the complainant amended its bill; alleging, in substance, that the contract relied on must be treated as a chattel mortgage, and accompanied this amendment with a prayer seeking to enforce it as such. This amendment, having been allowed, reopened the case to the usual defenses. An additional demurrer was interposed upon the ground that the contract was in no sense a mortgage, and otherwise objecting to the amended bill for the want of equity, etc. This demurrer, while argued, is, by consent of counsel, to be considered and determined in connection with the whole case.

The questions involved have not been free from difficulty. The contract is set out in a printed and written order. The blank order was furnished by the Tompkins Company, as is usual with them in such transaction. It was completed and signed by the defendant company, or, more accurately, by the projectors, who were afterwards the incorporators. Of the responsibility of these parties, in case liability is established, there is no question. The order is in evidence and its material stipulation will be presently considered.

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Its acceptance by the complainant, along with certain 'general conditions,' constitutes the contract. These general conditions accompanying the order are also in print and in writing, and, it is conceded, were agreed to by the complainant. They contain the following material stipulations:

'Our work is to be considered completed when the mill is set in motion, and each machine is put on its legitimate work. At this time complete settlement must be made for unpaid balances in cash or by notes, as per order sheet.

'The plant will not be delivered over to purchasers until this settlement is completed as above.

'We guarantee all machinery and equipment to be first-class in material and workmanship, and to work well for the purposes intended, if properly used.

'In case of original defect in any machine or part of machine, we agree to make good the defect by supplying a new machine or new part.'

These are the printed covenants. Another, in writing, and that upon which the controversy practically depends, was added. It is this:

'Mill to be completed ready for operation on Sept. 15th, 1902.'

The contract thus created by the order, the general conditions, and the acceptance will be found to contain no specification creating in behalf of the complainant the statutory lien relied upon. The law of Georgia authorizing or creating such a lien is found in section 2801 of the Code of 1895. This provides:

'All contractors for building factories, furnishing material for the same, or furnishing machinery for the same; and all machinists and manufacturers of machinery, including corporations engaged in such business, who may furnish or put up in any county of this state any steam mill or other machinery, or who may repair the same; and all contractors to build railroads, shall each have a special lien on such real estate, factories or railroads.'

Section 2804 provides:

'To make good the liens specified in section 2801, they must be created and declared in accordance with the following provisions, and on failure of either the lien shall cease, viz.: (1) A substantial compliance by the party claiming the lien with his contract for building, repairing, or improving, or for materials or machinery put up or furnished, as set forth in said section. (2) The recording of his claim of lien within three months after the completion of the work, or within three months after such material or machinery is furnished.'

Now it is insisted for the defendants that there was no such substantial compliance with its contract by the complainant as would make good this lien. This contention, in our opinion, is supported by the evidence. It is plain that time was of the essence of this contract. As we have seen, it was expressly contracted in writing that the mill should be completed on the 15th day of September, but this was not done. The machinery was installed imperfectly not until the 6th of November, and even then was operated by the skilled workmen of the complainants until the 8th of December, when the machinery was so sufficiently adjusted that it might be turned over to the defendants. Now the written covenant as to the date of completion was made with a definite purpose. This was to enable the parties who were investing their means in the oilmill to utilize the cotton seed of the current crop year. It indeed appears

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from the evidence that there were on the ground a number of competitors of the Tompkins Company, all engaged...

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