Malcomson v. Wappoo Mills
| Decision Date | 02 June 1898 |
| Citation | 88 F. 680 |
| Parties | MALCOMSON v. WAPPOO MILLS et al. (MITSUI et al., Interveners). |
| Court | U.S. Court of Appeals — Fourth Circuit |
Mordecai & Gadsden, for petitioner.
A. T Smythe and Mitchell & Smith, opposed.
This case comes up upon the intervention of Mitsui & Co., claiming damages as against the Farmers' Mining Company for nonfulfillment of contract. On 14th October, 1897, the Farmers' Mining Company agreed to sell to Mitsui & Co. who on the same day agreed to buy, about 2,000 tons dried Coosaw river phosphate rock, for shipment in December, 1897 the Farmers' Mining Company was, by an order of this court, placed in the hands of a receiver, and was enjoined from interfering with any of its property. This made the performance of its contract with the interveners impossible. The evidence shows that but for this the contract could have been performed. The rock of the kind and quality contracted for, and in the amount prescribed, being on hand ready for delivery. Mitsui & Co., having heard of the appointment of the receiver, called upon him to fulfill the contract. This of course, he could not do without an order of court, and was in no wise bound to do. A receiver is not bound by the contracts of the corporation for which he is appointed. United States Trust Co. v. Wabash W. Ry. Co., 150 U.S. 287, 14 Sup.Ct. 86. Having been notified by the receiver that he could not perform the contract, Mitsui & Co. file this intervention. The gist of the action is for damages for breach of contract, and they show for damage that they were compelled to pay for rock of the quality contracted for at the rate of $2.75 per ton, the excess being $845. The interveners have taken the proper course by their intervention. If the Farmer's Mining Company can be held liable for damages on this contract, the interveners must come into this court. This is the only way in which to ascertain the liability of the corporation, whether any exists, and the extent of it. Of course, a recovery would only permit the interveners to get their proportionate share in the assets of the company, without preference of any kind.
The question to be decided is, can damages be recovered against the Farmers' Mining Company for the nonperformance of this contract? ' . Mining Company fulfilled, or, rather was prepared to fulfill, the contract in every particular. The complete fulfillment was prevented by the order of this court in the appointment of the receiver. A delivery of the rock by the company after that was impossible. It will be noticed,...
To continue reading
Request your trial
-
Paisley v. Lucas
... ... v. Roberts-Byford Dry Goods Co., 118 Tenn ... 340, 101 S.W. 421; Malcomson v. Wappoo Mills, 88 F ... 680; Lenoir v. Linville Imp. Co., 126 N.C. 922; ... Law v ... ...
-
Wallace Bank & Trust Co. v. First National Bank of Fairfield
...pro rata out of the assets. (34 Cyc. 265; 20 Ency. Law, 375; Spader v. Mural Decoration Mfg. Co., 47 N.J. Eq. 18, 20 A. 378; Malcomson v. Wappoo Mills, 88 F. 680; Central Trust Co. v. East Tennessee L. Co., 79 F. The motion for inspection of the bank records was too broad, sweeping and inde......
-
Hatcher v. Ferguson
...him." (United States v. Gleason, 175 U.S. 588, 20 S.Ct. 228, 44 L.Ed. 284, see, also, Rose's U.S. Notes; 6 R. C. L. 365; Malcolmson v. Wapoo Mills, 88 F. 680; v. Hayes, 35 App. D. C. 65, 33 L. R. A., N. S., 65, 698; City of Covington v. Kanawha Coal & C. Co., 121 Ky. 681, 123 Am. St. 219, 1......
-
Bloch v. Bell Furniture Co.
...liability upon the assets in his hands. U. S. Trust Co. v. Wabash W. R. Co., 150 U. S. 287, 14 S. Ct. 86, 37 L. Ed. 1085; Malcomson v. Wappoo Mills (C. C.) 88 F. 680; Peck v. Southwestern Lumber, etc., Co., 131 La. 177, 59 So. 113; Wells v. Hartford Manilla Co., 76 Conn. 27, 55 A. 599; Fell......