Bernitt v. Smith-Powers Logging Co.
| Decision Date | 09 January 1911 |
| Docket Number | 3,646. |
| Citation | 184 F. 139 |
| Parties | BERNITT et al. v. SMITH-POWERS LOGGING CO. et al. |
| Court | U.S. District Court — District of Oregon |
W. U Douglas, John F. Hall, James T. Hall, and Watson & Beekman for plaintiffs.
John D Goss, for defendants.
This is a suit for an accounting growing out of alleged copartnership or joint relations. It is shown, in effect, by the bill of complaint, that about the year 1882 E. B. Dean, David Wilcox and C. H. Merchant were copartners, under the firm name of E B. Dean & Co.; that said copartnership and E. W. Bernitt, William Klahn, George Wullf, and David Young entered into a partnership agreement in substance as follows: That E. B. Dean & Co., being the owners of certain lands abutting upon tide waters and of the tide lands adjacent, agreed with the said Bernitt, Klahn, Wullf, and Young that they together would build, construct, and operate, upon the lands owned by E. B. Dean & Co., and in the channel of Coos river, log booms and dolphins for the purpose of catching and storing therein sawlogs, piles, and other timbers, and making up rafts thereof, and rafting and transporting the same to the different mills and other places upon Coos Bay; that Bernitt, Klahn, Wullf, and Young were to engage in capturing the logs and timbers and storing them in the booms, and were to do the rafting of the logs, timbers, and piles, for which a charge, not to be participated in by E. B. Dean & Co., was agreed to be exacted in addition to the boomage charge; that in pursuance of such agreement the parties to such copartnership entered into the possession of the lands described, and also into the possession of another tract of land in the possession and under the control of E. B. Dean & Co., and constructed thereon log booms, by driving poles and dolphins and attaching sticks thereto, and improving the same in accordance with the agreement; that E. B. Dean & Co. were to have one-half interest in the boomage charge, after paying one-half of the costs of maintenance, and each of the other four parties was to receive one-eighth interest therein and the profits thereof, after each contributing one-eighth to the cost of maintenance. It is further alleged that, by reason of the death of one of the members of the firm of E. B. Dean & Co., about July 17, 1897, the firm was dissolved, and that thereafter the property of the firm was sold to Dean Lumber Company, a corporation; that later the Dean Lumber Company sold and transferred its interest in the copartnership or joint property to Charles A. Smith, and later Smith sold and transferred his interest to the defendant Smith-Powers Logging Company; that each of the succeeding parties, namely, Dean Lumber Company, Charles A. Smith, and Smith-Powers Logging Company, continued to act in the name and place of E. B. Dean & Co., and carried on the business jointly with the said Bernitt, Klahn, Wullf, and Young, and their successors in interest, up to about the . . . day of June, 1909, at which time the Smith-Powers Logging Company, it is alleged, entered into the exclusive possession of the booms, and has excluded the plaintiffs therefrom. It is further alleged that the customary charge imposed by the copartnership or joint enterprise for the catching and storing of logs and timber in the booms was the sum of 25 cents per 1,000 feet, and one-fourth of 1 cent per foot for piling. It is further alleged that E. W. Bernitt subsequently succeeded to an additional one-eighth interest in the copartnership or joint business, which, together with his own, gave him a one-fourth interest; that the plaintiff Victor Wittick has, by mesne transfers, succeeded to a one-fourth interest in the said business; and that the present ownership of the entire business consists of the Smith-Powers Logging Company, being entitled to one-half interest therein, and E. W. Bernitt and Victor Wittick, being each entitled to one-fourth interest. In addition to this the plaintiffs, it is alleged, were permitted to and did charge to customers employing them the further sum of 35 cents per 1,000 feet for rafting the sawlogs, and one-half of 1 cent per foot for rafting the piling, and conveying them from the booms to the parties desiring the service. But these last charges are no part of the compensation to be received by the copartnership for rafting the logs and booming them within their lodgment prepared by the parties. It is further alleged that C. A. Smith and Smith-Powers Logging...
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General Engineering Corp. v. Virgin Islands Water and Power Auth.
...necessary parties and as such, they must join in an action alleging injury to their common interest or property. Bernitt v. Smith-Powers Logging Co., 184 F. 139, 143 (D.Or.1911); Kemp v. Murray, 680 P.2d 758, 759 (Utah 1984); Scott Company of California v. Enco Construction Company, 264 So.......
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Adams v. City of Duluth
...tenants must join in an action for damage to the joint property. Dunnell's Dig. (2d Ed.) § 7317, and cases cited; Bernitt v. Smith-Powers Logging Co. (C. C.) 184 F. 139; Blackburn v. Blackburn, 132 Mich. 525, 94 N. W. 24. The Burns Lumber Company was the owner of the dwelling house, subject......
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Adams v. City of Duluth
...in an action for damage to the joint property. Dunnell's Dig. (2d Ed.) § 7317, and cases cited; Bernitt v. Smith-Powers Logging Co. (C. C.) 184 F. 139;Blackburn v. Blackburn, 132 Mich. 525, 94 N. W. 24. The Burns Lumber Company was the owner of the dwelling house, subject to the Adams' inte......
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Adams v. City of Duluth
...... property. 5 Dunnell, Minn. Dig. (2 ed.) § 7317, and. cases cited, Bernitt v. Smith-Powers Logging Co. (C.C.) 184 F. 139; Blackburn v. Blackburn, 132. Mich. 525, 94 N.W. ......