Lilienthal v. McCormick

• Decision Date: 05 May 1902
• Docket Number: 688.
• Citation: 117 F. 89
• Parties: LILIENTHAL et al. v. McCORMICK et al. McCORMICK et al. v. LILIENTHAL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

117 F. 89

LILIENTHAL et al. v. McCORMICK et al.

McCORMICK et al. v. LILIENTHAL et al.

No. 688.

United States Court of Appeals, Ninth Circuit.

May 5, 1902

Cox Cotton, Teal & Minor, for appellants Lilienthal Bros.

John H Woodward, for appellees McCormick and others.

Fenton Bronaugh & Muir, for appellee Bank of Woodburn.

The controversy between the parties in this case depends upon the construction to be given to the terms of the following agreement:

'Articles of agreement made this 12th day of September, one thousand eight hundred and ninety-six, between Chas. McCormick, Wong Him, Jim Lip, and Ah Tong, all of Woodburn, county of Marion, state of Oregon, parties of the first part, and Lilienthal Brothers, of the city, county, and state of New York, parties of the second part.

'The parties of the first part have bargained and sold, and by these presents do grant, sell, and convey, unto the said parties of the second part, thirty (30,000) thousand pounds (net weight) of their crop of hops, the growth of the year 1897, grown on the ranch of Chas. McCormick in Marion county, state of Oregon, of which farm 70 acres are set out in hops, and are now being by them cultivated, and which are to be harvested during the year one thousand eight hundred and ninety-seven, to have and to hold the same unto said Lilienthal Brothers, their executors, administrators, or assigns, forever. The said parties of the first part hereby agree to complete the cultivation of the said hop crop, and to harvest, care, and bale the same in good, first-class, and workmanlike manner, and immediately thereafter, and not later than Nov. 10th, 1897, to deliver the 30,000 pounds of the same in bales of about one hundred and eighty-five pounds each, in new 24-oz. bale cloth (seven pounds tare per bale to be allowed), at railroad whse. at Woodburn. Said hops, when delivered, are to be not the product of a first year's planting, and not affected by spraying or mold, and are to be of choice quality, and in sound condition, good color, fully matured, cleanly picked, free from vermin damage, properly dried and cured, and in good merchantable order and condition, and shall be delivered in lots of not less than -- lot to the said parties of the second part, their agents, executors, administrators, or assigns; and the said parties of the first part further agree that this contract has preference, both as to quality and quantity, over all other contracts made as to said growth of hops, by said parties of the first part, with any other purchaser; and it is understood and agreed that said parties of the second part, or their agent, may, at any time after the execution of this agreement, have full and free access to and upon said described premises. That said parties of the first part further agree, at least ten days before baling said hops, that they will notify said parties of the second part, or their agents, in writing, of the time at which they will be in readiness to deliver said hops; which said notice shall be personally served upon said parties of the second part or their agent. It is further agreed that when said hops are delivered they may be inspected by the parties of the second part, or by an agent selected by said parties of the second part at the time of the delivery of any lot thereof, or at any time thereafter, within ten days after delivery of the entire quantity hereby bargained and sold shall have been completed, and should said hops, or any part thereof, not be delivered in the condition herein agreed upon according to the judgment of said parties of the second part, or their said agent, the said parties of the first part shall, upon demand, repay to said parties of the second part such sums of money as they may have advanced on the said crop, with interest at the rate of ten per cent. per annum from the date when advanced, and this instrument shall be a chattel mortgage on the entire crop of hops raised on the above described land to secure the payment of said sums advanced and interest, and the performance of all the provisions hereof; and if not paid upon demand, the said parties of the second part may forthwith, and without further notice, take possession of said hops, and sell the same, without or without notice to the parties of the first part, upon ten days' advertisement as herein provided, and out of the proceeds retain said sums and interest and all costs, including attorneys' fees, rendering the surplus, if any, to the parties of the first part. Such advertisement shall be by posting a notice describing the property to be sold, stating the time and place of sale, the amount to be made at such sale, and that the sale is made under the provisions of this agreement, and shall be posted in three public places, in the county where the sale is to take place, for ten days immediately preceding the date of sale.

'And, in consideration of the foregoing said parties of the second part do hereby agree to pay, to said parties of the first part, the sum of seven cents per pound for each pound of hops delivered and accepted on the conditions stipulated for; that is to say, one dollar paid upon the signing of these presents, the receipt whereof by said parties of the first part is hereby acknowledged; three and one-half cents per pound for each pound of hops hereby bargained to be paid at the time of picking said hops, upon ten days' notice from said parties of the first part; and the balance, if any there may then be due, after delivery of the entire amount bargained and sold to, and acceptance by, said parties of the second part, at the time and place and in the condition as hereinbefore provided. It is further agreed that all advances made as hereinbefore provided shall bear interest at the rate of ten per cent. per annum up to the time of acceptance of all of said hops by said parties of the second part, and that the parties of the second part, through their agents, shall have the right to determine at picking time, when said advances are contemplated to be made, whether or not the growing crop at that time is in proper condition; and, if such agents of the parties of the second part shall determine that the growing crop is not in such condition, then said parties of the second part shall be released from any obligations to furnish picking money as called for in this contract. The party of the first part shall not be liable (except to repay advances) for any shortage on delivery due to causes beyond his control. It is further agreed that the said parties of the second part may, at their option, keep the said hops insured against all risks of fire, for their full value,-- that is to say, for an amount not less than the value herein agreed to be paid therefor,-- at the expense of the said party of the first part; said insurance to operate from the time said hops are picked, and to be in the name and for the benefit of said parties of the second part; and, in case of loss of said hops by fire before delivery and acceptance, the party of the first part shall immediately repay, to said parties of the second part, all the moneys heretofore advanced under this contract, with interest at the rate of ten per cent. per annum.

'In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written.

'Charles McCormick. 'Ah (Chinese signature) Tong. 'Wong Him. 'Jim (Chinese signature) Lip. 'Lilienthal Bros. 'H. J. Ottenheimer.'

The court, after disposing of certain exceptions to the answer of defendants, and of divers demurrers and pleas of the respective parties herein, upon the final hearing found and decreed, among other things:

'That the complainant Albert Lilienthal is a citizen of the state of New York and a resident and inhabitant of the said state, and the complainant Philip N. Lilienthal is a citizen of the state of California, and a resident and inhabitant of said state, and the said Albert Lilienthal and the said Philip N. Lilienthal, at the times mentioned in this bill of complaint, have been partners in business under the firm name of Lilienthal Brothers. That the defendant Charles McCormick is a citizen of the state of Oregon, and a resident and inhabitant of said state; that the defendant Wong Him is a citizen of the empire of China, and a resident and inhabitant at this time of the state of Oregon; that the defendant Jim Lip is a citizen of the empire of China, and at this time a resident and inhabitant of the state of Oregon; that the defendant Ah Tong is a citizen of the empire of China, and at this time a resident and inhabitant of the state of Oregon; and the Bank of Woodburn is a corporation organized under the laws of the state of Oregon, and doing business in the said state, having its principal place of business at the town of Woodburn in the said state of Oregon, and for the purposes of the jurisdiction of this court is a citizen and inhabitant of the said state of Oregon. That the amount involved in this controversy, exclusive of interest and costs, is in excess of two thousand dollars. ' That, under the provisions of the contract, 'complainants advanced and paid to the defendants Charles McCormick, Wong Him, Jim Lip, and Ah Tong, pursuant to the terms of the contract above mentioned, on the 12th day of September, 1896, the sum of one dollar, and on the 30th day of August, 1897, the sum of one thousand and fifty ($1,050.00) dollars, and have been ready and willing to accept and receive all the property set forth and described in the said contract, of the kind and character therein specified, and at the time and place therein mentioned for the delivery of the same, and to pay therefor the purchase price of the same in pursuance of said contract. That the defendants Charles

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