Southern Pine Co. v. Savannah Trust Co.
Decision Date | 12 December 1905 |
Docket Number | 1,459. |
Citation | 141 F. 802 |
Parties | SOUTHERN PINE CO. OF GEORGIA et al. v. SAVANNAH TRUST CO. |
Court | U.S. Court of Appeals — Fifth Circuit |
Wm. E Kay and Wm. W. Gordon, Jr., for appellants.
T. M Cunningham, Jr., for appellee.
The referee in bankruptcy, before whom this cause was primarily heard, filed the following statement and findings of fact:
The hearing before the referee resulted in a judgment in favor of the appellant, the Southern Pine Company, against the appellee, as trustee in bankruptcy of the Georgia Car & Manufacturing Company, for the sum of $1,136.08, representing the value of the boards sold by the Southern Pine Company to the Car Company, with interest thereon at the rate of 7 per cent. per annum from December 18, 1903, the same to be paid out of the proceeds arising from the sale of the 50 box cars. Upon review of the proceedings, the District Court set aside the order of the referee; and from the order thus made the Southern Pine Company has appealed to this court.
Before PARDEE and SHELBY, Circuit Judges, and MAXEY, District Judge.
MAXEY District Judge, after stating the facts as above, .
In the consideration of this case, application of legal principles will be made to the facts as found and reported by the referee. The record discloses conflicts in the testimony, particularly as to the witnesses Stillwell and Foster, the chief actors in the contract to sell the boards which were used by the Georgia Car & Manufacturing Company in the construction of its cars. Upon the trial of the issues before him the referee had the opportunity of seeing and hearing the witnesses, and he was therefore in a better position to judge of their credibility than are courts, which have before them nothing but the printed record. The established rule in such cases, from which we see no reason for departing in the present instance, seems to be that the findings of fact, dependent upon conflicting testimony, by a judge, master, or a referee, who sees and hears the witnesses testify, have every reasonable presumption in their favor, and should not be set aside or modified, unless it clearly appears that there was error or mistake on his part. Tilghman v. Proctor, 125 U.S. 136, 8 Sup.Ct. 884, 31 L.Ed. 664; Camden v. Stuart, 144 U.S. 104, 12 Sup.Ct. 585, 36 L.Ed. 363; Callaghan v. Myers, 128 U.S. 617, 9 Sup.Ct. 177, 32 L.Ed. 547; In re West (D.C.) 116 F. 767; In re Stout (D.C.) 109 F. 794; In re Lafleche (D.C.) 109 F. 307; In re Waxelbaum (D.C.) 101 F. 228; In re Rider (D.C.) 96 F. 811.
The principal question in the present case is whether the appellant is in a position to assert title to the boards, as against the appellee, the trustee in bankruptcy of the car company. To determine this question resort must be had to the contract of the parties, and effect should be given to the intention therein expressed, unless such intention should be found to be in contravention of the statute law of Georgia. It appears from the record that the appellant sold or contracted to sell to the car company certain boards, to be used in the manufacture of cars. The boards were sold for cash, and payment was to be made at or before their delivery. Upon the first shipment cash was paid before the boards were removed from the yards of the appellant. Subsequently, as a matter of convenience to Foster in checking up the cars, and upon his assurance that the boards would not be delivered to the car company until payment was made, delivery to him was permitted by Stillwell for the purpose suggested; and during the absence of Stillwell and Foster, and through oversight on the part of an employe' in the office of the appellant the boards went into the hands of the car company without prepayment of cash, and were used by it in the construction of the cars. It is evident that, upon entering into the arrangement for...
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