JosEPn v. Term

• Decision Date: 31 July 1868
• Citation: 3 W.Va. 86
• Court: West Virginia Supreme Court
• Parties: JosEPn and Asiier Brakeley v. George W. Tuttle.July Term, 18G8.

3 W.Va. 86

JosEPn and Asiier Brakeley

v. George W. Tuttle.July Term, 1868.

Supreme Court of Appeals of West Virginia.

1. The agreement for the advance and loan of money is only part of a contract, and it is a question of fact whether usury was intended or not; and where the contract is not usurious on its face, the question of usury cannot be raised on demurrer to the bill setting out such contract.

2. A demurrer will not lie to the equity jurisdiction where a bill alleges that

the defendant, who has possession of personal property claimed by the complainant under a contract with the defendant, is insolvent and is fraudulently converting the property to his own use, and asks to enjoin the defendant, and for an account.

3. Where an injunction is docketed before the cause is formally set for hearing at rules, and a motion' to dissolve is made, it is not error in the circuit court to proceed to hear the cause on its merits, if the defendant is present in court and oilers no objections.

4. If hides and leather belonging to a party are by him so intermixed in his

tannery with those of another, that they cannot be separated or distinguished from those of such other, they become the property of such other to the extent of any claim he may have for a definite or certain number or quantity of hides and leather.

5. T. and B. enter into a contract whereby hides are to be purchased by either

of them, and to be tanned by B. and returned to T. For all that should be purchased by B., T. was to accept the drafts of B. at three months from date of purchase, and T. was to have five per centum commission or advance on the cost of the hides, whether pap-chased by himself or B. T. was also to have interest on the cost of the hides from the time of payment, including as part of the cost said commission. It was alsostip-v. ulated that all the hides purchased were to be the property of T., and when tanned were to be returned to him to be sold. If from mismanagement, or otherwise, the leather thus^eturncd should fail to realize the cost, charges, &c, B. was to pay over without delay any and all such de ficiency to T. The hides and leather were to bo insured at the expense of II. T. purchased but a small number of hides, 801, and B. purchased 10, 154. Held:

That inasmuch as T. was to receive the principal sum of money advanced, and five per centum commission thereon, with interest on the aggregate of such principal and commission, (no consideration for the live per centum commission being shown except the advance of the money) the contract was usurious and therefore void.

George W. Tuttle, of the State of New York, filed a bill in the circuit court of Preston county, on the 11th day of February, 1861, against Joseph and Asher Brakeley, partners under the firm of J. & A. Brakeley. The bill alleged that in December, 1858, the complainant and defendants had entered into an agreement in the following words:

"Memorandum of agreement made and entered into this 29th day of December, in the year one thousand eight hundred any fifty-eight, between G. W. Tuttle, hide and leather dealer, of Kingston, Ulster county, and State of New York, of the first part, and J. & A. Brakeley, tanners, of Bowlesburg, Preston county, in the State of Virginia, of the second part. YVitnesseth that for and in consideration of the agreements herein contained, and of one dollar to them in hand paid by the party of the first part, the receipt whereof is hereby acknowledged, the parties of the second part agree to purchase themselves, or to receive from the party of the first part during the next twelve months, about eight thousand salted or dry hides, and to tan the same with reasonable dispatch, and in a good and workmanlike manner, at their Cheat River Tannery, into oak leather, and to deliver all the said leather in a reasonable time, at the store of the party of the first part, in the city of New York.

"For the hides purchased by the parties of the second part, as above specified, the party of the first part agrees to accept their drafts at three months from the date of purchase, and the party of the first part is to be allowed five per cent, commission or advance on the cost of said hides, whether purchased by himself directly, or by the parties of the second part as above specified.

"And the party of the first part agrees to receive the leather so tanned, and to sell the same at his discretion, for which he is to be allowed six per cent, commission and guarantee on the gross amount of the sales of said leather, and after deducting the cost of the hides and expenses thereon, with interest on the same from the time they became due, or were paid for by the party of the first part, together with any expenses he may have to pay on the leather, as well as any advances he may have made, together with the advance on hides and commission on leather, as specified, to pay over to the parties of the second part the nctt proceeds of the same.

"And the parties of the second part agree, that if in consequence of mismanagement or otherwise, the leather thus returned should fail to realize the cost, charges, &c, as specified, that they will pay over without any delay, any and all such deficiency, as soon as ascertained, to the party of the first part. It is further agreed and understood between the parties, that all the hides and leather that may be in possession of the parties of the second part, by virtue of this agreement, shall be, and remain the property of the party of the first part, and that all the interest the parties of the second part have in said hides and leather, is what may be realized over, and above the cost, charges, &c., as specified. And the parties of the second part further agree, that the party of the first part may have and keep the said hides, with the leather made from the same, at all times fully insured against loss or damage by fire, and charge the cost of the same to the parties of the second part as a part of the above specified expense.

In witness whereof we have hereunto set our hands, the day and year first above mentioned.

Witness, G. W. Tuttle,

J. C. McLaughlin. J. & A. Brakeley."

That under this contract (which bad been extended) the defendants Lad received from him, in different lots, from Jannary 10th, 1859, to August 16th, 1860, 10, 154 hides, equivalent to 20, 308 sides of tanned leather, and that they returned to him in all 9, 777 sides of leather, leaving 10, 531 sides yet to be returned or accounted for, of the value of 42, 124 dollars, and which according to the terms of the contract would leave for the complainant a sum due of over 80, 000 dollars.

The bill further alleged that in the business of tannine It was customary to mark the hides belonging to different parties in the process of tanning, and to keep a "yard book" to register the marks thus made, and that on a visit to the tannery he learned from the defendants that they were shipping leather on their own account, and had been in the habit of mixing their hides with those of the complainant during the process of fanning, and kept no "yard book" for the purpose of identification; that upon the complainant demanding an account of the hides in the tannery one of the defendants estimated the number at about 11, 800 sides, of which he claimed as his own 1, 500 sides; and that this result was reached by the defendant's estimating the contents of the vats and the loft and leeches, and that he got at the amount of the 1, 500 sides by estimates made from a memorandum book, which defendant stated showed the labor of his men and thus enabled him to get at the quantity. That the del fendants did not forward thereafter the leather as they should have done according to the terms of the contract, and that whilst they only shipped to the complainant 272 sides of leather, they shipped on their own account 4, G55 sides; and that the tannery of the defendants was worth only about 10, 00*0 dollars, and that the defendants had no other property, and therefore having no other means of saving his leather as yet undisposed of by the defendants, he asked an injunction and receivership, as the deficit of the returns for his leather could only have arisen by the fraud of the defendants. The bill also asked for an account to be had between the parties. The injunction was allowed and a receiver was appointed.

The defendants demurred to the bill on three grounds, which are stated in full by the judge who delivered the opinion here. They also answered denying some of the allegations of the bill and admitting others; the main points in the answer were, however, the questions of the mixing of the hides of the complainant and defendants, the buying of the hides under the contract, and the allegation that the contract was usurious and void, providing for the loan or advance of money by devices and contrivances to reserve and secure to the complainant unlawful interest and profits, and that the contract was for the payment of interest at a greater rate than allowed by law.

Upon the question of mixing the hides, it appeared that the hides of the complainant and defendants could not be separated and distinguished, being in the process of tanning all put in the same vats by the defendants. It appeared that of the hides purchased the complainant bought only 801 and that defendants purchased the residue under the contract and drew on the complainant accordingly. The cause was transferred to the circuit court of Monongalia county, where it was docketed at the April term, 1862, and continued. The defendants gave notice that the}' would move the court at the September term, following, to dissolve the injunction. On the 5th day of September "the president and directors of the Cumberland Bank of Alleghany," and cither parties who were creditors of the defendants, and to secure whom they had executed two deeds of trust, dated the 12th and 28th of February, 1861, respectively, moved the court to make them parties,...