Galluchat v. Pittman

• Decision Date: 17 February 1920
• Docket Number: 202.
• Citation: 288 F. 917
• Parties: GALLUCHAT v. PITTMAN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

288 F. 917

GALLUCHAT v. PITTMAN et al.

No. 202.

United States District Court, E.D. South Carolina.

February 17, 1920

On the Merits, January 10, 1922.

On Motion to Remand.

On the Merits.

B. B Evans, of Columbia, S.C., John Gary Evans, of Spartanburg S.C., and G. T. Graham, of Lexington, S.C., for plaintiff.

Logan &amp Grace and Buist & Buist, all of Charleston, S.C., for defendants.

On Motion to Remand.

SMITH District Judge.

This matter comes up on a motion to remand. The complaint was filed in the court of common pleas for the county of Williamsburg, apparently some time in June, 1918. Trust Company the defendants Thomas Hume and the Michigan Trust Company appeared specially for the single purpose of filing a petition and bond for removal of the action to this court, upon the ground that there is involved therein a controversy which is wholly between the plaintiff, who is a citizen of the state of South Carolina, and the defendants, the Michigan Trust Company and Thomas Hume, who are citizens of the state of Michigan, which controversy is wholly distinct from the controversy, if any, between the plaintiff and the other defendant named in the complaint, to wit, Robert H. Pittman, and is wholly between citizens of different states, and can be wholly determined as between them without the presence of the said Robert H. Pittman.

Upon the presentation of the petition and bond for removal to the presiding judge of the court of common pleas for the county of Williamsburg, he accepted the same and directed the cause to be removed into this court. A motion is now made to remand, upon the ground that the cause is not a separable one, and that one of the defendants is a citizen of the state of South Carolina, of the same state of which the plaintiff is a citizen.

If the plaintiff has elected to make the action a joint one, and sue the defendants as jointly liable, the question whether or not there is a separable controversy involved is one which must appear upon the face of the complaint. It must appear, from the allegations of fact set up in the complaint and the case therein presented, that such separable controversy between citizens of different states exists.

The complaint in this case alleges that on the 10th of October, 1916, Charles H. Hackley and Thomas Hume, residents of the state of Michigan; were seized and possessed in fee of a tract of land in Williamsburg county, in the state of South Carolina, extending partly into Georgetown county, in the same state, containing 26,000 acres. The complaint further alleges that on the 10th day of October, 1916, the defendant, Robert H. Pittman, individually and acting as the agent of Charles H. Hackley and Thomas Hume, executed an instrument in writing whereby they agreed to sell to the plaintiff all the timber of every kind, suitable for manufacturing purposes at the time of cutting, upon the said 26,000 acres. The plaintiff further alleges in the complaint that the defendants failed to perform their contract of sale, although full tender of the purchase money was made, and the complaint was filed to obtain a specific performance of the contract; or, failing that, for damages in the sum of $260,000, as allowed by the state practice in the same proceedings.

The complaint has annexed to it the contract of sale upon which the cause of action set up in the complaint is based, and which is attached as an exhibit to and made a part of the complaint, as alleged in the second article thereof. This contract, as annexed to the complaint, purports to be the individual contract of the defendant, Robert H. Pittman, who thereby grants and sells to the plaintiff, M. C. Galluchat, the exclusive option to purchase all the timber of every kind suitable for manufacturing purposes at the time of cutting, upon the 26,000 acres. Although this contract of sale, or rather option of purchase, is signed by Robert H. Pittman alone, yet the complaint alleges that he signed the agreement individually and as agent of Charles H. Hackley and Thomas Hume. Under the allegations of the complaint, it being alleged that Charles H. Hackley and Thomas Hume were the owners of the land, and it being alleged that Robert H. Pittman was acting as their agent in signing this option of sale, it would appear that if Pittman had no interest in the property, there is no doubt that the action, or the controversy in the action, lay entirely between the plaintiff and the defendants who represent Hackley and Hume. For a disclosed principal, whether disclosed at the time or any time anterior to action brought, may and indeed should be sued alone and to the exclusion of the agent. The only allegation in the complaint which would affect this inference is that in the second line of the first article; it is alleged that this agreement was executed by the defendant Robert H. Pittman, individually and acting as the agent of Charles H. Hackley and Thomas Hume.

The position of the plaintiff is that, having alleged that the contract was signed as the individual contract of Pittman, as well as the contract of Hackley and Hume, through his agency, it sufficiently appears upon the face of the complaint that he had the same joint right of action against both Pittman and Hackley and Hume, and, having elected to make the action joint, he should not be deprived of that right. There is no direct allegation at all in the complaint that Robert H. Pittman had any interest either in the land or the timber. According to the allegations of the first article of the complaint, at the date of the contract, Charles H. Hackley and Thomas Hume were the owners in fee and possessed of the land. Under the laws of the state of South Carolina standing timber is a part of the realty, and the presumption would be that the owner of the land in fee was also the owner of the standing timber. Nor is there any allegation in the complaint to contradict this inference, unless it might be inferred to be contradicted by the word 'individually' as used in the second article. The contract or option of sale was of the standing timber, and not of the land, and the argument of the plaintiff is that, although the allegations of the complaint were to the effect that Hackley and Hume were the owners of the land, yet inasmuch as the sale was of the timber, and not of the land, and Pittman is alleged to have executed the contract individually, as well as agent, the inference from that should be that he had some interest in the timber which should render him a proper party to the proceeding.

As, nevertheless, the positive allegation is that Hackley and Hume were the owners of the land, and the presumption of law would be that as, being owners of the land, they are also owners of the timber, it would not appear to be sufficient to contradict that presumption that the plaintiff merely alleged that the contract was made by Robert H. Pittman, individually as well as agent. The allegations of fact in the complaint can only support the inference that Robert H. Pittman must have made the contract as attorney for the real owners of the land and timber. If Hackley and Hume were the owners of the land and of the timber, then Robert H. Pittman had no interest whatsoever upon which the contract could operate, and it could only be effectual and binding, so far as Hackley and Hume were concerned, because made by him as their agent. The mere allegation that he made the contract as an individual is refuted by the facts set up in the complaint.

If the complaint had alleged that Robert H. Pittman had any interest in the timber, or if it had in any wise made any allegation from which that inference could be drawn, the conclusion would be otherwise; but upon the face of the complaint, as it is, no proper legal inference can be drawn, except that Hackley and Hume, at the time of the making of this contract, were the owners of the land and the timber, and the only ground or basis for any action against them on the part of the plaintiff would be that they were so. It appears, therefore, upon a careful inspection of the complaint, that there is involved in this cause a controversy of a separable character, wholly between the plaintiff, who is a citizen of the state of South Carolina, and the defendants Thomas Hume and the Michigan Trust Company, who are citizens of the state of Michigan, and that the order of the state court, removing the cause to this court, should not be disturbed.

The motion to remand is accordingly refused.

On the Merits.

An original complaint was filed in this cause on June 26, 1918, in the court of common pleas for the county of Williamsburg. Thereafter the cause was by the defendants Thomas Hume individually, and Thomas Hume and Michigan Trust Company, as executors and trustees under the will of the estate of Charles H. Hackley, removed from the state court to the United States District Court for the Eastern District of South Carolina, and the transcript of record was filed in this court August 31, 1918. The defendants filed their answers and the cause was at issue for trial when the complainant, M. C. Galluchat, departed this life, and the cause was afterwards, on April 19, 1921, revived and continued, and Minnie M. Galluchat as administratrix of the plaintiff, substituted in lieu and place of the plaintiff.

In the meantime, on February 15, 1921, the Michigan Trust Company as the sole surviving executor and trustee of the estate of Charles H. Hackley, deceased, and George A. Hume and Thomas H. Hume, as executors and trustees of the estate of Thomas Hume, deceased, filed a bill of complaint in equity in this court against Minnie M. Galluchat, in her own right and as administratrix of M. C. Galluchat, deceased, and others. The issues raised by this last bill of...