Daniel Grove, Appellant v. John Mcp Brien, Robert Gilmor, William Fowle, William Fowle, and George Fowle, Trading Under the Firm of William Fowle Sons, Defendants Robert Gilmor, Complainant v. Daniel Grove, John Mcp Brien, William Fowle, William Fowle, and George Fowle, Trading Under the Firm of William Fowle Sons, Defendants

• Decision Date: 01 January 1850
• Citation: 8 How. 429,12 L.Ed. 1142,49 U.S. 429
• Parties: DANIEL L. GROVE, APPELLANT, v. JOHN MCP. BRIEN, ROBERT GILMOR, WILLIAM FOWLE, WILLIAM H. FOWLE, AND GEORGE D. FOWLE, TRADING UNDER THE FIRM OF WILLIAM FOWLE & SONS, DEFENDANTS. Cross Suit. ROBERT GILMOR, COMPLAINANT, v. DANIEL L. GROVE, JOHN MCP. BRIEN, WILLIAM FOWLE, WILLIAM H. FOWLE, AND GEORGE D. FOWLE, TRADING UNDER THE FIRM OF WILLIAM FOWLE & SONS, DEFENDANTS
• Court: U.S. Supreme Court

49 U.S. 429

8 How. 429

12 L.Ed. 1142

DANIEL L. GROVE, APPELLANT, v. JOHN MCP. BRIEN, ROBERT GILMOR, WILLIAM FOWLE, WILLIAM

H. FOWLE, AND GEORGE D. FOWLE, TRADING UNDER THE FIRM OF

WILLIAM FOWLE & SONS, DEFENDANTS.

Cross Suit.

ROBERT GILMOR, COMPLAINANT,

v. DANIEL L. GROVE, JOHN MCP. BRIEN, WILLIAM FOWLE, WILLIAM

H. FOWLE, AND GEORGE D. FOWLE, TRADING UNDER THE FIRM OF

WILLIAM FOWLE & SONS, DEFENDANTS.

January Term, 1850

THIS was an appeal from the Circuit Court of the United States for the District of Columbia and County of Alexandria.

It was a controversy respecting the right to certain kegs of nails, which were in the hands of William Fowle & Sons, in Alexandria.

On the 14th of March, 1843, the following was the position of the several parties who had any concern in the matter.

John McPherson Brien carried on an extensive iron concern upon the waters of Antieatam Creek, in Maryland, near the Potomac River above Harper's Ferry. He was indebted to Robert Gilmor of Baltimore, to Daniel L. Grove of Alexandria, and to William Fowle & Sons of the same place. To the last-mentioned house he had been in the habit of sending nails from the foundry, and upon the preceding 21st of February had written the following letter:

'Antieatam, February 21, 1843.

'MESSRS. WM. FOWLE & SONS:——

'Gentlemen,—Your account of sales, &c., has been examined

and found correct, and charges for your commission, &c., made in my books accordingly.

'The water I learn will be put into the canal in a day or two, when I shall embrace the first opportunity to forward you the nails you have ordered.

'Yours, most respectfully,

'JNO. McP. BRIEN.'

In this state of affairs, Brien made a shipment by one of the canal-boats, and took the following receipt:——

'Received, March 14, 1843, of John McP. Brien, 500 kegs of nails, to be delivered to William Fowle & Sons, Alexandria, D. C., for the use of Robert Gilmor, Esq., Baltimore, in good order.

'GEORGE H. SHARPLESS,

FOR ISAAC SHARPLESS.'

Upon the same day the following letter was written, which, it appeared by the testimony, was not mailed at Mr. Brien's post-office, but brought down the canal by the boatman, and mailed at Georgetown, on the 20th. It was received by Fowle & Sons on the 21st.

'TO MESSRS. WM. FOWLE & SONS:——

'Gentlemen,—We have this day shipped on board of Capt. Sharpless' boat, and consigned to you, for the use of Robert Gilmor, Esq., Baltimore, 500 kegs nails, viz., 27 3d., 34 4d., 68 6d., 99 8d., 107 10d., 58 12d., 22 20d., and 17 30d., nails; 22 2d., 7 8d., and 15 10d. brads; 10 8d. and 12 10d. fencing, which we hope will arrive in good order. You will please pay Capt. Sharpless his freight, and oblige yours, respectfully,

'JNO. McP. BRIEN,

PER JAS. S. PRIMROSE.

'March 14, 1843.'

Postmarked, 'Georgetown, D. C., March 20.'

Upon the preceding 23d of January Grove had filed a bill (the origin of all these legal proceedings) against Brien and Fowle & Sons, stating that Brien was indebted to the complainant in the sum of $1089.50, and praying that an attachment might issue against his funds and effects in the hands of Fowle & Sons. As soon as the nails arrived, viz., on the 20th of March, the marshal served the attachment and subpoena.

It may be here stated, that Gilmor obtained leave of the court to be made a defendant, and afterwards filed his answer and cross-bill.

It is not necessary to state the progress of the suit through all its details. The parties all answered, and much testimony was taken, including that of Brien, which was objected to by the counsel for Grove. Proper parties were also made in place of some who had died.

Fowle & Sons in their answer set forth their previous dealings with Brien, the letter (above inserted) of the 21st of February, and claimed that Brien was indebted to them on account of prior transactions, for which balance so due they had a lien on the nails.

The answer of Gilmor, and his cross-bill, state substantially the same facts, and, after referring to the attachment of the nails in controversy by Grove, say,—That John McP. Brien was indebted to Robert Gilmor, (besides other large indebtedness,) in the amount of a draft for $4,405.40, which was drawn by Brien on Gilmor and by him accepted, and at maturity paid by Gilmor, at the request and solely for the use of Brien. That previous to the shipment of the said nails, it was agreed between Brien and Gilmor, that Brien should ship to Gilmor the 500 kegs of nails, on account of, and to be applied in part liquidation of, such pre-existing debt.

It then proceeded to state the shipment, and claimed the nails as his property.

The answer of John McP. Brien to the original and cross-bills neither admits nor denies his indebtedness to Grove, as charged in his original bill, but calls for proof. He states his indebtedness to Gilmor, as alleged in the cross-bill, and admits that, according to a previous agreement between himself and Gilmor, and in consideration of such pre-existing indebtedness, he shipped the 500 kegs of nails in controversy, on the 14th of March, 1843, to the care of Wm. Fowle & Sons. That by letter dated the 14th of March, 1843, he advised said Wm. Fowle & Sons, that the said nails, a particular description of which is contained in the letter, were forwarded to them, for the use of Robert Gilmor, of Baltimore, and also inclosed them the receipt or bill of lading of the common carrier, to whom the said nails were delivered, which expressed that the same were shipped for the use of Robert Gilmor, and denies all fraud, combination, &c.

Grove answered the cross-bill, stating his ignorance generally of the facts, calling for proof, and charging that the consignment for Gilmor's use, if made, was fraudulent, &c., &c.

The result of the evidence in the suit may be stated to establish the debt of Brien to Gilmor, to Grove, and to Fowle & Sons, and the question was which creditor had the preference. The account of the sale of the nails was thus presented by Fowle & Sons.

It will be perceived that their prior debt is not brought into the account.

'Sales 500 casks nails, received from the Antieatam Iron-Works, for account and risk of whom it may concern.

"Account of the sale of the nails by William Fowle & Sons.

1845.

Nov. 8. R. Crupper, 100 casks, 10,000lbs.

at $4 1/8, 6 months' credit, 412.50

1846.

Oct. 27. James Green, 400 casks, 40,000lbs.

at $3 1/2, 6 months' credit, 1,400.00

$1,812.50

Charges.

1843.

Mar. 18. Paid freight on 500 kegs nails, $75.00

Interest on $75 till sales are due, 17.54

Wharfage, $5; drayage, $3.75, 8.75

Storage, at 3/4 cents per cask per

month, 152.25

Labor, receiving, piling, and

delivering, 5.00

Cooperage, 4.25

Fire insurage, 5.100 per $100 a

month and policy, $1, 42.00

Commission and guarantee, 6 per

cent., 108.75

413.54

Net proceeds average cash, February

7-10th, 1847, $1,398.96

E. E.

'WM. FOWLE & SONS.

'Alexandria, October 28th, 1846.'

On the 31st day of October, 1846, the Circuit Court passed the following decree.

'Final Decree.

'And now here, at this day, to wit, at a court continued and held for the district and county aforesaid, the 31st day of October, 1846, came the parties aforesaid by their solicitors, and these causes being set for hearing, and coming on to be heard this 31st day of October, 1846, upon the original, amended, and cross-bills, demurrer, answers, general replication, depositions, exceptions, agreements of counsel, interlocutory decrees and orders, and other papers, and it appearing to the court that all the parties defendant to said original, amended, and cross-bills had duly answered the same, and the arguments of counsel being heard, the court doth order, adjudge, and decree, that the amount of sales by the defendants, William Fowle & Sons, of the nails in controversy, made under an order in these causes of May term, 1844, not having been excepted to, be and the same is hereby confirmed. And the court proceeding first to decide upon the original bill filed by the complainant, Daniel L. Grove, doth adjudge, order, and decree, that the resident defendants, William Fowle & Sons, had not, at the filing of the said original bill, or at any time since, in their hands any property, effects, or money belonging to the said non-resident defendant, Jno. McP. Brien; and do further adjudge, order, and decree, that said original bill be dismissed, and that the said Daniel L. Grove do pay to the defendants thereto their costs in that behalf expended.

'And the court proceeding now to consider and decide upon the cross-bill, filed by the said Robert Gilmor in this cause, doth adjudge, order, and decree, that the said Robert Gilmor recover of the said John McP. Brien the sum of four thousand four hundred and five dollars and forty cents, the amount of the draft in the said cross-bill mentioned, with interest thereon from the 4th day of March, 1843, till paid; to be credited, however, by the sum of one thousand eight hundred and twelve dollars and fifty cents, as of the 14th day of March, 1843; the said sum of $1812.50 being the gross amount of the sales of the said five hundred kegs of nails, as shown by the account of sales of the said William Fowle & Sons above mentioned; and the court doth further order and decree, that the said William Fowle & Sons, out of the said one thousand eight hundred and twelve dollars and fifty cents, the proceeds of the sales of said nails in their hands, retain the sum of four hundred and thirteen dollars and fifty-four cents, in discharge and payment of the freight on the shipment of said nails, for storage, insurance, commission on sales, and the other items of charge against the said nails set forth in their said account of sales; and the court doth further adjudge, order, and decree, that the said William Fowle & Sons are not entitled to any lien on the said nails, or their proceeds, for the sum of $334.60 claimed by them to be due as a general balance of account on...