Kentucky Refining Company v. Globe Refining Company

• Decision Date: 25 October 1898
• Citation: 104 Ky. 559
• Parties: Kentucky Refining Company v. Globe Refining Company.
• Court: Kentucky Court of Appeals

Page 559

104 Ky. 559

Kentucky Refining Company v. Globe Refining Company.

Court of Appeals of Kentucky.

October 25, 1898.

APPEAL FROM JEFFERSON CIRCUIT COURT, CHANCERY DIVISION.

ARTHUR M. RUTLEDGE FOR APPELLANT.

RICHARDS, BASKIN & RONALD FOR APPELLEE.

SAME COUNSEL FOR APPELLEES IN A PETITION FOR A MODIFICATION OF THE OPINION.

SAME COUNSEL FOR APPELLANT IN RESPONSE TO A PETITION FOR A MODIFICATION OF THE OPINION.

JUDGE GUFFY DELIVERED THE OPINION OF THE COURT.

The appellant was a corporation doing business in the city of Louisville, and engaged in refining cotton-seed oil. The appellee was a corporation doing a like business in said city. The Marlin Oil Company was a corporation doing business in Texas, and engaged in the manufacture of crude cotton-seed oil. The appellant instituted suit against the Marlin Oil Company in the Jefferson Circuit Court, and in the petition it is alleged: That on the 1st of November, 1895, the defendant, the Marlin Oil Company, sold and agreed to deliver to the appellant 800 barrels of prime crude cotton-seed oil, to be shipped by the defendant from Marlin, Tex., to the plaintiff, in plaintiff's tanks, and upon plaintiff's order, at the price of 19 cents per gallon of 7½ pounds f. o. b. at the mill of defendant in Marlin, Tex., and plaintiff to pay for same by sight draft after arrival of bill of lading and inspection of said oil — the quality and weight of the oil guaranteed by the defendant. That after said 1st of November, 1895, the appellant had ordered the defendant to ship all of said oil from its mills in the town of Marlin to the plaintiff in the city of Louisville, and furnished to defendant its tanks therefor; but that the defendant broke its said contract, and refused to deliver said oil to the plaintiff, and refused to ship the same from its said mills, and has never furnished or shipped same. That plaintiff has been ready and willing to perfect its part of said contract, and to pay said purchase price for said oil, as agreed upon in said contract. That the quantity of said oil that defendant agreed to sell to plaintiff is 40,000 gallons. That plaintiff, relying on said contract and agreement of said defendant to deliver to it the said oil, made contracts to sell and deliver said quantity of oil, with other oil it had, to its customers; but was unable to fulfill its contract except by purchasing other oil in lieu of said oil. That, after said purchase by plaintiff, the market price of said oil advanced 2 cents on each gallon, and is now worth 2 cents more, to-wit, 20 cents per gallon; and plaintiff was compelled to buy said quantity of oil from other parties, and pay therefor 2 cents per gallon more than said contract price, and was thereby compelled to pay for said oil purchased by it from other parties to fill said contracts, paying $800 over and above the price at which defendant agreed to furnish said oil, and plaintiff was thereby damaged in the sum of $800. Plaintiff further alleged that the defendant was indebted to it in the sum of $257.29 on another account, the particulars of which were set out in the petition; for which sums plaintiff prayed, judgment, and obtained an attachment against the property of the defendant, which attachment was issued November 30, 1895, and came to the hands of the sheriff of Jefferson county at 10:55 a. m., November 30th, and was executed at 11:45 a. m., by delivering a copy of the attachment to Theo. Goeper, an employe of the Louisville & Nashville Railroad Company, and who had said car of oil in his charge, and levied on one car of cotton-seed oil, and left same in charge of said Goeper. It further appears that after the levy aforesaid the plaintiff obtained an order of sale, and the oil was sold. On January 11, 1896, the appellee, the Globe Refining Company, filed its petition, and sought to be made, and was made, a party to this action, and claimed to be the owner of the oil attached. It is alleged by the appellee that on the 25th of November, 1895, it received a telegram from the defendant, the Marlin Oil Company, in words and figures as follows: "Tank K, R. Co. two hundred twenty-six, seven hundred fifty-six, prime oil in Louisville. Draft returned by Kentucky Refining Co. Will you take it at 19 cents? Answer." To which telegram the appellee replied as follows: "Telegram received. Will take Kentucky tank two twenty at 19 cents. Rush documents." On the 26th of November 1895, appellee received the second telegram from the said Marlin Oil Company, as follows: "We confirm sale of tank two twenty. Forward papers to-day. Routing is care Katy to St. Louis. Final destination, New York City. Trying to locate tank. If in Louisville, answer, our expense." It is further alleged that by reason of said purchase appellee purchased said oil at the price aforesaid, making $1,155.28. On the 26th of November, 1895, the said Marlin Oil Company drew its draft, payable at sight, on petitioner, for said sum, to pay for said oil, and that appellee duly accepted said draft on the 30th of November, 1895, and thereafter paid same when due. Said two telegrams, also a copy of the reply of the petitioner, and the said sight draft, are filed herewith as part hereof, marked Exhibits 1, 2, 3 and 4, respectively. Attached to said draft of November 26, 1895, was a bill of lading for said car load of oil, said oil having been shipped to the order of Marlin Oil Company. Said bill of lading was indorsed as follows: "On payment of attached draft, deliver to Globe Refining Co. Marlin Oil Co., by W. D. Keyser, Mgr." By said bill of lading said oil was routed and shipped by way of St. Louis to New York, and said oil passed through the hands of the Wiggins Ferry Company of St. Louis, and was transported by them to the city of Louisville to the Kentucky Refining Company, instead of to the city of New York, and the same was, by the railroad company bringing said oil from St. Louis, delivered to the Kentucky Refining Company, without any order or direction from the Marlin Oil Company, and without surrender of the bill of lading, and the attachment sued out herein purports to have been levied upon said oil. That after the appellee had paid the draft for the amount of said oil, it mailed said bill of lading to the Wiggins Ferry Company, with directions to change routing of said car load of oil from New York to Louisville, and to deliver same to petitioner, said Wiggins Ferry Company having erroneously marked said bill of lading, "Cancelled." Said bill of lading is attached hereto, and marked "Exhibit No. 5." It is further alleged in the petition that appellee purchased the oil before the filing of this action, and before the suing out of the attachment, and paid said draft without knowledge of said attachment. Appellee prayed judgment for the value of the oil at the time of the suing out of the attachment, which it alleged was $1,418.76.

Exhibit 1 reads as follows: "11-25-95. Marlin, Texas. Globe R. F. Co.: Tank K. R. Co., two hundred twenty-six seven hundred fifty-six gallons prime oil in Louisville. Draft returned by Kentucky Refining Co. Will you take it at 19 cents? Answer. Marlin Oil Co."

Exhibit No. 2: "11-26-189_. Marlin, Texas. To Globe Refining Co., Lou.: We confirm sale of tank two twenty. Forward papers to-day. Routing is care Katy to St. Louis; destination New York City. Trying to locate tank. If in Louisville, answer, our expense. [Signed] Marlin Oil Co."

Exhibit No. 3: "Nov. 25, 1895. Marlin Oil Co., Marlin, Texas: Telegram received. Will take Kentucky tank two twenty at 19 cents. Rush documents. [Signed] Globe Refining Co."

Exhibit No. 4: "First National Bank of Marlin, Texas. Nov. 26, 1895. At sight pay to the order of First National Bank of Marlin, Texas, $1,155.28 (eleven hundred and fifty-five and 28-100 dollars), for value received, and charge to account of Marlin Oil Co., by J. W. R. Cinson, Secy.

"To Globe Refining Co., Louisville, Ky.

"Accepted by telephone, November 30, 1895, Globe Refining Co., by L. W. Motley, Third Nat. Bank."

By an amended petition appellee alleged that the oil was of the value of $1,601.38, and that it brought that sum at sheriff's sale January 27, 1896, and sought judgment against appellant for that sum.

The reply may be treated as a traverse of all the averments of the appellee showing it to be the owner and entitled to the oil at the time of the levy of the attachment. It is further alleged in the reply that, at the time of the pretended communication between defendant and appellee concerning the oil, the oil was in a tank belonging to appellant, and on the switch of the Louisville & Nashville Railroad Company in the yard of appellant, and that the same had been shipped and left there with the knowledge, consent, and direction of the Marlin Oil Company, the Marlin Oil Company then being indebted to the plaintiff to the amount and extent named in the petition; that the said Marlin Oil Company, when it shipped and caused said oil to be sent to plaintiff's said yard, as aforesaid, sent its draft on the plaintiff for the sum of $____, for which it demanded payment before allowing the railroad company to deliver said oil to the appellant, and without paying or offering to pay or adjust its said indebtedness to the plaintiff, and plaintiff refused to accept or pay the amount of said draft until said Marlin Oil Company's indebtedness to it was satisfied, and plaintiff was then threatening and about to bring an action and sue out an attachment against said Marlin Oil Company to be levied upon said oil to satisfy its claim; that said Marlin Oil Company was at that time, and now is, a foreign corporation. The said Marlin Oil Company then, and for the purpose of defrauding this plaintiff, its creditor, and delaying plaintiff in the collection of its debts against said Marlin Oil Company, commenced communication with the Globe Refining Company to sell to it said oil, and that said pretended sale of oil to the...