Barney & Smith Mfg. Co. v. Hart

• Decision Date: 16 September 1886
• Citation: 1 S.W. 414
• Parties: BARNEY & SMITH MANUF'G CO. v. HART, Receiver, etc.
• Court: Kentucky Court of Appeals

1 S.W. 414

BARNEY & SMITH MANUF'G CO. v. HART, Receiver, etc.

Court of Appeals of Kentucky.

September 16, 1886

Appeal from Fleming circuit court.

Lincoln & Stephens and O'Hara & Bryan, for appellant, Barney &amp Smith Manuf'g Co. Wm. J. Hendrick, for appellee, Theodore Hart, Receiver, etc.

PRYOR C.J.

In the month of March, in the year 1877, appellant, the Barney &amp Smith Manufacturing Company, doing business in the state of Ohio, entered into a contract with one A. P. Berthoud to construct for him the two cars in controversy, being at the price of $2,400, payable in installments. The sum of $1,400 was paid when the contract was made, and Berthoud's note executed for the balance, which seems, or the greater part of it, never to have been paid. By the terms of the contract it was agreed that, on the failure of the purchaser (Berthoud) to pay the deferred installments, the company (now appellant) should have the right to resume possession of the property and sell it for the payment of the debt; and, in the event it failed to pay, Berthoud was still liable to the appellant therefor. It was also stipulated that no right or title to the cars should pass from or vest in Berthoud until all the purchase money was paid, and on full payment, and not before the title to the cars, and the absolute property and possession thereof, should vest in Berthoud, the party of the second part.

The cars were constructed for the purpose of being used on the Covington, Flemingsburg & Pound Gap Railroad, in the state of Kentucky; and when finished by the company were delivered to Berthoud, and by him brought to Kentucky, and placed upon and used on that railroad. A man by the name of Quintard had contracted with this Pound Gap Railroad Company to construct and equip several miles of the road, and in the settlement of the accounts of Quintard the value of these cars were charged to him as a part of the equipment of said road, and credited to Berthoud.

A short time after the cars had been placed on the road many of the laborers and contractors who had worked on this road in its construction, and who had not been paid by Quintard for their services, instituted actions against him and the railroad company in the Fleming circuit court, and obtained general attachments, that were levied on the property of the company and Quintard, including the cars in controversy; the road being then operated by Berthoud, who was, as the proof clearly indicates, the mere agent of Quintard, the original contractor. The actions against Quintard were consolidated, and proceeded to trial under the name of Mason, Shannahan & Co. v. Covington, Flemingsburg & Pound Gap Railroad Company and Quintard. A receiver was appointed, who afterwards resigned, and another substituted, and, by an agreement with each, Berthoud was permitted to operate the road, with the cars upon it, as if no suit had been instituted; Berthoud agreeing that on the first of March, 1879, he would deliver up to the receiver the rolling stock, loose materials, personalty, and all the property now on the track of said railroad, and belonging to the same, without any further notice. Berthoud was in fact operating the road under the direction of the receiver from the time the court placed the road in his possession.

After the institution of the various actions in the Fleming circuit court, the appellant (manufacturing company) instituted an action in the United States circuit court for the district of Kentucky against Berthoud, to recover from him the possession of the cars, under its contract. The marshal, by a process from that court, seized the two cars, and, before removing them, they were taken from him by the receiver. Appellant's action against Berthoud in the district court was still prosecuted, and, Berthoud failing to appear, a judgment by default was entered, and the marshal again seized the cars; and, when this was done, the receiver in the Fleming circuit court instituted his action as such against the marshal, and regained the possession. When the action in the Fleming circuit court by the receiver against the marshal was called, the appellant, (manufacturing company,) by its petition, asked to be made a defendant in lieu of the marshal, which was done, and then, by motion, had the case transferred to the United States circuit court, at Covington, for trial.

The receiver, by an order of the Fleming circuit court, was directed to prosecute the action, and when the case was transferred to the district court such party submitted to the jurisdiction of that court; and, the law and facts having been submitted to the judge, a judgment was rendered adjudging that the receiver was entitled to the cars, and gave costs against the appellant. In that action, transferred from the Fleming circuit court to the United States district court, the appellant filed an answer setting up title by reason of its judgment by default in that court against Berthoud; and, by an amended answer, set up title in its own right against Berthoud, and all others claiming to be the original and...