McFarlane v. Wadhams

• Decision Date: 01 October 1908
• Citation: 165 F. 987
• Parties: McFARLANE v. WADHAMS.
• Court: U.S. District Court — Eastern District of Wisconsin

165 F. 987

McFARLANE v. WADHAMS.

United States Circuit Court, E.D. Wisconsin.

October 1, 1908

This is a general demurrer to the complaint in an action at law. The complaint, after suitable averments showing diverse citizenship, is as follows:

'Second. That at the times hereinafter mentioned the said plaintiff was engaged in business at said Central City, in the state of Colorado, in the manufacture of mining and milling machinery, doing business as a sole trader under the name and style of McFarlane & Co.

'Third. That this plaintiff is informed and verily believes, prior to the 1st day of May, 1906, and at all of the other times hereinafter mentioned, a corporation known as the Milwaukee Leasing Company, of which the said defendant, E. A Wadhams, was the principal stockholder, was engaged in the mining business at Milford, in the state of Utah, and at and prior to the said 1st day of May, 1906, and at all the times hereinafter mentioned, one S. A. Tarbet was general superintendent of said Milwaukee Leasing Company, and the said defendant, Wadhams, was one of the principal officers of said Milwaukee Leasing Company. That said Milwaukee Leasing Company, through its superintendent, Tarbet, prior to the 5th day of May, 1906, requested this plaintiff to quote a price for the furnishing of the ironwork for a certain stampmill proposed to be erected by the said Milwaukee Leasing Company at Milford, in the state of Utah. And this plaintiff alleges that on the 5th day of May 1906, by a letter bearing date that day, this plaintiff made to the said Tarbet, as superintendent of the said Milwaukee Leasing Company, a proposition to supply the ironwork for a 20-stamp, long-drop Gilpin County type mill at a cost of $2,930 f.o.b. cars at the city of Denver, in the state of Colorado.'

The complaint then sets out the following correspondence out of which the contract arises:

'Received at Central City, Colo.

'No. 6 Hf. Mc, 9 Paid.

'Milwaukee, Wis., 14th 06.

'McFarlane & Co., Central City, Colo.:

'Commence work on Stamp Mill as per specifications.

'E. A. Wadhams,

'4.35 p.m.'

'Milwaukee Leasing Company.

'McFarlane & Co., Central City, Colo.

'Milwaukee, Wis., 5/14/06.

'Gentlemen: I wired to-day to commence work on the stamp mills. This refers to the twenty stamps according to the specifications sent Mr. Tarbet.

Yours truly,

E. A. Wadhams.'

'Mr. S. A. Tarbet, Milford, Utah.

'May 17, 1906.

'Dear Sir: We received on the 14th a telegram from Mr. E. A. Wadhams to commence work on mill, which we immediately did. Today we got Mr. Wadhams' letter confirming the telegram and we are now hard at work filling the order and hope to ship within the specified time. In a few days we will have foundation plans ready for mailing to you.

'In regard to payments, there has been nothing said thus far about that part of it, and I ask you to kindly write me and state how you would like to meet them. We would prefer to have some one man of your company, yourself or Mr. Wadhams, to become personally responsible. We ask this because we do not know anything about your organization or Co. but we await your letter of advice in regard to this before saying anything to Mr. Wadhams. Very truly yours,

McFarlane & Co.'

'Wadhams Oil Company.

'McFarlane & Co., Central City, Colo.

'Milwaukee, Wis., 5/26/06.

'Gentlemen: I am in receipt of your letter of May 17th to Mr. Tarbet, at Milford. I note your remarks in regard to payment. The mill we purchased of the Power Mining Mach'y Co., we paid for some few weeks after the mill was in operation, i.e., two or three. We imagine that payments in that time for your mill would be satisfactory I will say that I will personally guarantee the payment of this bill by the Milwaukee Leasing Company.

'Trusting this will be satisfactory and that you will make as early shipment as possible, I remain, Yours truly,

E. A. Wadhams.'

'Mr. E. A. Wadhams, Milwaukee, Wisconsin.

'May 28, 1906.

'Dear Sir: We have yours of the 26th inst. in regard to the payments of your 20 stamp mill for Milford, we will say in reply that we note that you will personally guarantee the payments, on contract, and we thank you for that favor, but we think the time you require is too long as it may take from two to three months to erect the mill ready to run after it is on the ground. We do not object seriously to your proposition but we think we are entitled to one thousand dollars on account on receipt by you of invoice and bill of lading showing whole shipment. Trusting you may see your way clear to pay us that $1000 at that time, we are, Very truly yours,

McFarlane & Co.'

'Eighth. This plaintiff further alleges that thereafter, and pursuant to the orders so given by the said defendant, Wadhams, and the guaranty so made by him, this plaintiff did manufacture the ironwork for the stampmill hereinbefore mentioned, and duly delivered the same to the Milwaukee Leasing Company as provided in and by its proposition for the manufacture thereof. And this plaintiff further alleges that thereafter, and on or about the 1st day of July, 1906, this plaintiff sent to the said defendant, Wadhams, an invoice or bill for said sum of $2,930, the contract price of said stampmill machinery. That thereafter the said defendant, Wadhams, under date of July 14, 1906, wrote to this plaintiff acknowledging receipt of plaintiff's letter of July 1st, in which was inclosed said bill or invoice, and, among other things, states: 'I received a letter from Mr. Tarbet saying the mill has arrived and apparently all right. As soon as he checks up will either send you some money on account or send you paper you can use, possibly both;' and thereafter, and upon the 12th day of September 1906, the said defendant, Wadhams, wrote to this plaintiff inclosing a check or draft for $475, being $430 on account of the purchase price of said stampmill machinery, and $45 interest, and two notes signed by said Milwaukee Leasing Company, and each of which was indorsed by the said defendant, Wadhams, one of said notes being for $1,000 for three months, and one for $1,500 for four months.

'Ninth. And this plaintiff further alleges that thereafter and from time to time, at the request and for the accommodation of said defendant, Wadhams, said notes were from time to time renewed, the last renewal of the $1,500 note being under date of January 15, 1907, and the last renewal of the $1,000 note being under date of March 15, 1907; that neither of said notes has been paid; that both of said notes are in the possession of said plaintiff, and this plaintiff avers that he is ready to bring the same to court for delivery to the said defendant, Wadhams.

'Tenth. This plaintiff further alleges that no part of said purchase price of said machinery of $2,930 has ever been paid, except the sum of $430 hereinbefore specified, and interest upon $1,500 down to the 15th day of January, 1907, and upon $1,000 down to the 15th day of March, 1907; and that there is now due and owing to this plaintiff for and on account of the purchase price of said stampmill machinery, the sum of $2,500, with interest on $1,500 from the 15th day of January 1907, and on $1,000 from the 15th day of March, 1907; that payment thereof has been demanded from the said Milwaukee Leasing Company and from said E. A....