Darlington Oil Co. v. Pee Dee Oil & Ice Co.

• Citation: 40 S.E. 169,62 S.C. 196
• Parties: DARLINGTON OIL CO. v. PEE DEE OIL & ICE CO. et al.
• Decision Date: 29 July 1901
• Court: South Carolina Supreme Court

40 S.E. 169

62 S.C. 196

DARLINGTON OIL CO. v. PEE DEE OIL & ICE CO. et al.

Supreme Court of South Carolina

July 29, 1901

Appeal from common pleas circuit court of Darlington county; Gage Judge.

Action by the Darlington Oil Company against the Pee Dee Oil & Ice Company and the Virginia-Carolina Chemical Company. From an order dissolving a temporary injunction, plaintiff appeals. Reversed.

The following are the affidavits of the plaintiff used at the hearing of the motion:

" Personally appeared before me Robert Keith Dargan, who on oath says: (1) That he is the general manager, secretary, and treasurer of the plaintiff corporation. That he is familiar with all of the material allegations of the complaint in this action, on the information and belief of the plaintiff, and has actual knowledge thereof, and that from such knowledge he knows that the matters of fact therein stated are true. That the use by the plaintiff of the said scales has never interfered with the use thereof by the Pee Dee Oil & Ice Company, and cannot so interfere. (2) That at the time of the sale of a portion of the plant of the plaintiff corporation to the Virginia-Carolina Chemical Company, on the 14th day of June A. D. 1899, Mr. C. S. McCullough was the general manager of the plaintiff corporation, and conducted in large part the negotiations leading up to said sale. That deponent was an employé of the plaintiff at that time, and suggested to Mr McCullough that a reservation giving the plaintiff the right to use said scales be inserted in the deed of conveyance set out in the complaint. That Mr. McCullough acted on said suggestion and had said reservation placed in the deed aforesaid. That Mr. McCullough is now the president and treasurer of the Pee Dee Oil & Ice Company, and appears to be the manager thereof. (3) That deponent conducted the negotiations for the plaintiff corporation with the Atlantic Coast Line Railroad Company in regard to the repair of said scales, and transmitted the letter of said railroad company to the Virginia-Carolina Chemical Company. That deponent received the following letter from the said last-mentioned corporation: 'Virginia-Carolina Chemical Company Richmond, Virginia. Office of the Secretary, August 5, 1899. Track scales at Darlington. Mr. Robt. Keith Dargan Darlington, S. C.--Dear Sir: Your favor of the 2d instant is to hand, inclosing letter from the railroad company in regard to our track scales. In reply thereto, I beg to say that we really see but little use that we will have for the track scales at our Darlington fertilizer factory, and therefore do not feel disposed to go to the expense that the railroad company desires in the premises. If the Cotton Seed Oil Company are willing to go to this expense for the use that they get out of the scales, it will be satisfactory to us for them to do so, but otherwise we would prefer to take the scales out. Yours, truly, S.D. Crenshaw, Secretary.' And then entered into the agreement with said railroad company, as set out in the complaint, for the repair of said scales. (4) That the plaintiff has continued to use said scales, under the reservation in the deed aforesaid, up to and until the 21st instant, when such use was forbidden by Mr. McCullough, the president and treasurer of the Pee Dee Oil & Ice Company. That deponent demanded of the railroad company that it should weigh the cars of the plaintiff, and said railroad company refused to do so, for the reason that Mr. McCullough forbade said railroad company so to do. (5) That on the 23d instant the plaintiff received a car of cotton seed consigned to it. The tare weight on said car had been obliterated. The railroad company weighed said car, seed and all, but deponent could not find out weights of the car and requested the railroad company to weigh said empty car, so as to find out the net weight of the seed in the car. This reasonable request was refused, for the reason above stated, and deponent was obliged to take the shipper's weights, without verification. (6) That on the 25th instant, the plaintiff received an empty tank car consigned to it to be filled with cotton seed oil, and deponent requested the railroad company to weigh said tank car, in order that deponent might thus ascertain its true, correct weight; and this reasonable request was again refused by said company for the reasons above stated. (7) That the plaintiff corporation has now large and costly shipments of oil and hulls sold under contract for delivery in the month of September instant, and have been unable to make said shipments because they cannot have their cars, when loaded with said products, weighed." Sworn to.

"Personally appeared before me W. E. James, Jr., who, being duly sworn, says that he is now in the employment of the plaintiff corporation, and has been for the past year; that in the performance of his duties as such employé, on Friday last, the 21st day of September instant, having been directed so to do, he went to the railroad track scales, described in plaintiff's complaint, to weigh an outgoing car loaded with loose cotton seed hulls, as he had heretofore done; that said car was loaded with the aforesaid hulls, which had been sold by the plaintiff, to be shipped to their destination; that upon approaching the premises of the defendant the Pee Dee Oil & Ice Company, for the purpose aforesaid, he was called by Mr. C. S. McCullough, president and treasurer of the said defendant corporation, and was told by him to inform his (deponent's) people or employers that they could not use said scales any longer; that deponent asked Mr. McCullough if he could not weigh the car of hulls then loaded to be shipped out, and then being shifted to be brought to said scales, and he replied that he could not; that plaintiff was then compelled to ship said car unweighed." Sworn to.

The Virginia-Carolina Chemical Company takes a neutral position by its answer. The answer of the Virginia-Carolina Chemical Company, defendant above named, to the complaint herein shows: "First. It has no knowledge or information sufficient to form a belief as to the allegations of the first article. Second. It admits the allegations of the second article. Third. It admits the allegations of the third article. Fourth. For answer to the allegations of the fourth article this defendant craves reference to the original charter therein referred to. Fifth. For answer to the allegation of the fifth article this defendant admits the execution and delivery of the deed therein referred to, and for the contents and tenor of the same craves reference to the original deed. Sixth. For answer to the allegations of the sixth article this defendant saith that it craves reference to the original amended charter as therein referred to. Seventh. For answer to the allegations of the seventh article this defendant saith that the contents and tenor of the deed of conveyance therein referred to will fully appear therefrom. Eighth. For answer to the allegations of the eighth article this defendant has no knowledge or information thereof sufficient to form a belief, save in so far as the same may appear from the original correspondence therein referred to. Ninth. For answer to the allegations of the ninth article this defendant saith that it admits the execution and delivery of the deed of conveyance therein referred to, and for the contents and tenor thereof craves reference to the original deed. Tenth. For answer to the allegations of the tenth article this defendant denies that it owns and controls the stock of the Pee Dee Oil & Ice Company, or any part thereof, and its alleged right, as set forth in the complaint, is not irreparable."

The defendant Pee Dee Oil & Ice Company moves to dismiss the temporary injunction on the following affidavits and answer and other pleadings:

"Personally appeared before me C. S. McCullough, who being duly sworn, says: That the Darlington Oil Company is successor to the late Darlington Phosphate Company and the Darlington Ginning, Milling, Fertilizer & Warehouse Company, under successive charters and amendments thereof. That the Darlington Ginning, Milling, Fertilizer & Warehouse Company (to whose business the Darlington Oil Company is successor) was chartered and begun business on or about August 11, 1888. That deponent was the president thereof. That for several years said company, under its then name and charter and changes and amendments thereto, successfully and profitably operated the oil mill plant now being operated by the Darlington Oil Company, and at the same place, doing the same character of business and under the same conditions, without owning or even use of track scales. That on or about August 11, 1891, the Darlington Phosphate Company, an entirely separate corporation, was organized and chartered, and the plant thereof operated on lands adjoining the lands of the Darlington Ginning, Milling, Fertilizer & Warehouse Company, or its successor; that one of the railroad side tracks, passing immediately in front of and by the doors of Darlington Ginning, Milling, Fertilizer & Warehouse Company (and then and ever afterwards and now the only tracks used by it and its successors to get cars to its mill) was extended upon the lands of the Darlington Phosphate Company, by the said Darlington Phosphate Company, and junction thereon made with side track upon its own lands, and that the said Darlington Phosphate Company purchased and erected the track scales now owned by the Pee Dee Oil & Ice Company on its own lands, which lands now belong to the said Pee Dee Oil & Ice Company. That some years after this the Darlington Ginning, Milling, Fertilizer & Warehouse Company, or its successor, and the Darlington Phosphate Company, were consolidated under the title

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