L. Bucki & Son Lumber Co. v. Atlantic Lumber Co.

• Decision Date: 10 March 1903
• Docket Number: 1,143.
• Citation: 121 F. 233
• Parties: L. BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

121 F. 233

L. BUCKI & SON LUMBER CO. v. ATLANTIC LUMBER CO. et al.

No. 1,143.

United States Court of Appeals, Fifth Circuit.

March 10, 1903

H Bisbee and Geo. C. Bedell, for plaintiff in error.

R. H Liggett, for defendants in error.

This is an action for damages for maliciously suing out two writs of attachment and the levying and maintaining the levy of such writs upon the properties of the plaintiff in error. The declaration consists of two counts. The first count charges the defendants with maliciously and without probable cause suing out a writ of attachment for $9,980.80, and maliciously endeavoring to maintain the same. The second count charges the defendants with maliciously and without probable cause suing out, levying, and maintaining the levy of another writ of attachment for $75,000. Both writs were issued and levied on the 1st day of October, A.D. 1897, at half past 6 o'clock p.m., and both were auxiliary attachments to common-law suits by the ordinary process of summons, which were served upon an officer and agent of the plaintiff residing in the city of Jacksonville, in the said county where the business of the plaintiff in error was conducted. The suits were removed to the court below from the state court.

The plaintiff was a corporation organized under the laws of the state of New Jersey, and the Atlantic Lumber Company was a corporation organized under the laws of the state of Florida. Daniel G. Ambler was the president and a director; Arthur Meigs was the general manager and a director, and Richard H. Liggett was the secretary and a director of the Atlantic Lumber Company at the time the attachments were issued, and had been such officers for several years prior to such attachments. All of the defendants were citizens of the state of Florida. All the pleas went out on demurrer, except the pleas of not guilty, and the case went to trial on such issues of fact as were raised by pleas of not guilty.

In the summer of 1892, the plaintiff and defendant company became bound to each other by mutual covenants in a contract as follows: The plaintiff to build a sawmill with a daily capacity of 100,000 feet per day, with a boom pen of the capacity of 2,000,000 feet; defendant company to deliver into said pen 2,000,000 feet of good merchantable green pine logs each month for eight years from the starting of such mill, at specified prices. The size of the logs were to be such that the average each month should be 3 1/2 logs per 1,000 feet, board measure, which said size the defendant guarantied. Payments were to be made on the 1st and 15th of each month for the deliveries made during the preceding two weeks. Other provisions and details of the contract will be found recited in other cases in this court between these same parties growing out of this same contract, and particularly in Bucki & Son Lumber Co. v. Atlantic Lumber Co., 109 F. 411, 48 C.C.A. 455, wherein we held as to this same contract as follows: 'The contract contained stipulations and guaranties in regard to which there might be failures and breaches frequently occurring during the life of the contract-- such as the failure to pay in time as agreed, and the failure to maintain the warranty as to the average of the logs delivered monthly-- none of which would necessarily put an end to the contract, even if suit should be instituted for such breach. Notwithstanding the subsidiary provisions, breaches of which might warrant a suit, the contract appears to be an entirety, and not several independent agreements. ' See Atlantic Lumber Co. v. Bucki & Son Lumber Co., 63 U.S.App. 382, 35 C.C.A. 59, 92 F. 864; Id., 63 U.S.App. 384, 35 C.C.A. 59, 92 F. 864; Atlantic Lumber Co. v. L. Bucki & Son Lumber Co., 35 C.C.A. 59, 92 F. 864; L Bucki & Son Lumber Co. v. Atlantic Lumber Co., 35 C.C.A. 590, 93 F. 765; Bucki & Son Lumber Co. v. Atlantic Lumber Co., 47 C.C.A. 685, 109 F. 1061; L. Bucki & Son Lumber Co. v. Fidelity & Deposit Co. of Md., 48 C.C.A. 436, 109 F. 393; L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., 48 C.C.A. 455, 109 F. 411; L. Bucki & Son Lumber Co. v. Atlantic Lumber Co., 53 C.C.A. 513, 116 F. 1.

The plaintiff in error contends, and it must be admitted that he introduced evidence tending to show as follows:

Plaintiff built the mill and boom pen, according to covenant, at an expense of nearly $150,000, and commenced sawing about the 1st of April, 1893, when the defendant commenced to make deliveries. As soon as the mill had started up, plaintiff had performed all the covenants in the contract except to pay for the logs thereafter delivered. Defendant company continued to make deliveries of logs-- that is, logs with green merchantable sap, which by contract should not exceed four inches-- up to about May, 1897. In the latter part of September, 1896, a destructive cyclone swept over the state of Florida from the mouth of the Suwanee river to the Georgia line, felling or destroying the pine forests over an area of land 40 miles wide and 120 miles long. In such area defendant company, prior to the storm, had bought timber lands or stumpage, upon which it relied to supply the logs called for by the contract. This area of virgin timber was southwesterly from the town of Starke, Alachua county. Into this area, from said town, the defendant company (not owning any franchise to build and operate a railroad) built a railroad, long prior to the storm, under the charter of another railroad corporation, connecting at Starke with the railroad owned by the F.C. & P. Railroad Co., and extending to plaintiff's mill, which was in the city of Jacksonville, Duval county. Prior to defendant company's building such road a distance of thirty miles, at a cost, with equipment, of about $230,000, it had obtained from the said F.C. & P. Railroad Co. a contract for freight rates for its logs to Jacksonville from any point on the line of defendant company's main line of railroad aforesaid. Defendant company's capital stock was only $100,000 par value, but by borrowing money it built said railroad, and became the owner of all the stock of said chartered railroad company, except about $4,000. This new road was bonded at $8,000 per mile, and defendant company owned all the bonds, which it hypothecated to raise money on to build said road. At the time of the said storm defendants' logging camp equipment, consisting of about 150 mules, tackle, etc., and log carts, costing about $30,000, and iron rails for spur tracks for logging purposes only, costing about $12,000, were located and were operating in such storm area, at or near the western end of its main railroad, some 30 miles from Starke. All this large outlay of money was necessary to enable defendant to obtain logs of required size to fill the contract-- at least defendant thought so-- and thereby the defendant company had expended all its capital of $100,000 and approximately $172,000 more. Soon after the storm the defendants were confronted with financial ruin. Why?

(1) Because the storm destroyed timber within 100 miles of Jacksonville running up into billions of feet, according to an estimate made by Ambler, defendant company's president, which estimate he caused to be published. There were in Jacksonville and vicinity five or six other sawmills to be supplied with logs. Necessarily, defendants foresaw that, resulting from such enormous destruction of timber, they would not only lose a large portion of their capital invested in timber and timber lands within the storm area, but the supply of standing timber which they did not own, within such a distance from Jacksonville as to render it possible to be delivered into plaintiff's boom at the contract price, would be largely diminished, and the price of standing timber largely increased. And this apprehension or foresight is abundantly verified by the evidence in this case.

(2) They foresaw that they would soon have to cease cutting storm timber, because it would soon be ruined by worms, and, unless they could find timber at a profitable distance from their main line of road, and had capital to buy it with to fill the contract, a very large portion of their capital invested in such railroad would be lost. For it was a fact, then well known to defendants, and now conceded by defendants' own testimony, that the business over their road from Starke, apart from hauling their own logs, would hardly pay operating expenses, and that, consequently, if they should move their logging plant to some other part of the state, said railroad would be utterly worthless, save the value of the iron rails, partially worn out, if perchance legislative authority to remove them could be obtained.

(3) With this calamity staring it in the face, defendant, by its general manager, Meigs, applied, by letter dated February 23 1897, to the plaintiff, to modify such contract so as to enable defendants to put into its boom pens, from the storm area, all the logs they could, as fast as they could, in order to save as much of this timber as possible in the storm region by getting it into water before it was destroyed by worms. Defendants also requested that plaintiff should pay for all excess above the 2,000,000 feet limited by the contract at contract prices; and this request was put on the ground that defendant company was financially unable to put such excess into the boom unless it received pay for it as the logs were delivered. Defendant company, in this letter, urged plaintiff to so modify the contract on the ground unequivocally admitted in the said letter that there was no doubt defendants would at an early date be short of a supply of logs to fill the contract. Plaintiff yielded to such requests on being so importuned, and the payment and advances made by it to defendants to aid in saving them...