Mecke v. Valleytown Mineral Co.

• Decision Date: 02 May 1899
• Docket Number: 301.
• Citation: 93 F. 697
• Parties: MECKE v. VALLEYTOWN MINERAL CO. et al.
• Court: U.S. Court of Appeals — Fourth Circuit

93 F. 697

MECKE v. VALLEYTOWN MINERAL CO. et al.

No. 301.

United States Court of Appeals, Fourth Circuit.

May 2, 1899

John H Dillard, for appellant.

Merrimon & Merrimon, for appellees.

Before GOFF, Circuit Judge, and MORRIS and BRAWLEY, District Judges.

GOFF Circuit Judge.

This action was brought by Herman Mecke in the superior court of Cherokee county, N.C., against the Valleytown Mineral Company, the Roessler & Hasslacher Chemical Company and R. L. Cooper, Ben. Posey, and J. F. Abernathy, trustees. The summons was issued on the 18th day of March, 1897 returnable to the spring term, 1897, of said court, to be held in May, beginning on the 17th day of that month. It was served on the Valleytown Mineral Company on March 18, 1897 and service was accepted by the three trustees on March 25, 1897. It was not served on the Roessler & Hasslacher Chemical Company. In the complaint the plaintiff alleged that A. H. Mugford and R. P. Getty purchased from S.W. Cooper and others, during the year 1895, certain land in Cherokee county, N.C., at the price of $10,000, paying $5,000 of said sum in cash and giving for the residue two notes, each for $2,500, secured by a deed of trust on the and, in which deed the defendants Cooper, Posey, and Abernathy were mentioned as trustees; that the land was supposed to contain minerals, especially talc, and that, in order to mine the same successfully, the said Mugford and Getty organized under the laws of the state of New Jersey a corporation called the Valleytown Mineral Company,-- the defendant referred to,-- of which the said Mugford was made manager, Getty superintendent, and the plaintiff president; that on the 2d day of October, 1895, Mugford and Getty executed and delivered to the plaintiff a certain written instrument, by which he (the plaintiff) was given a lien on the land mentioned, to secure him for the $5,000 he had advanced on the purchase money, he at the same time agreeing to provide the means with which to pay the said two notes; that afterwards the plaintiff assigned all his rights under said paper to the defendant the Valleytown Mineral Company, and that said company then agreed to assume and pay the said unpaid purchase-money notes; that on September 26, 1896, Mugford and Getty conveyed all their interests in said lands to the Roessler & Hasslacher Chemical Company, a corporation of the state of New York (which it was alleged was without an office, and also without an officer or agent, in the state of North Carolina), said conveyance having been made, it was charged, simply as security; that the plaintiff from time to time advanced to the Valleytown Mineral Company other large sums of money, amounting in the aggregate to $19,000, which, together with $1,000 on account of his salary, was still due him; that the Valleytown Mineral Company was largely indebted to other persons, and was insolvent, its only property being the said lien for $5,000, assigned to it by the plaintiff, and a lease on certain mineral lands. The complaint then described the characteristics of talc mining, and alleged the inexpediency of closing the work, as well as the advantage of continuing it; and prayed that a receiver might be appointed, with authority to operate the mines, and, if necessary, to borrow money on certificates to be issued by him; and also prayed for judgment for the plaintiff, and for general relief. On the 17th day of May, 1897, in the superior court of Cherokee county, the plaintiff was given 30 days in which to file an amended complaint, and the defendants were allowed 60 days thereafter during which to file amended or original answers. The amended complaint was duly filed, in which all the allegations of the original complaint were reaffirmed, and, in addition thereto, it was alleged as follows: That the Valleytown Mineral Company, finding itself without sufficient capital to conduct its business, and not being able to secure additional advancements from the plaintiff, sought the aid of the Roessler & Hasslacher Chemical Company, with the result that an agreement between those two corporations was reached,-- to which Mugford and Getty were also parties,-- by which the last-named company assumed all the obligations of the former, being those which had theretofore been assumed by the plaintiff, taking at the same time an assignment from said Valleytown Mineral Company, and also from Mugford, Getty, and the plaintiff, of their respective interests in said mining lands; that the Roessler & Hasslacher Chemical Company also then agreed to make such additional advancements of money as might be needed in said mining operations, the product of which was to be handled by that company, which was also to share in the profits realized therefrom, thereby becoming a partner in the business; that at plaintiff's insistence a further agreement was prepared, in which it was set forth that the indebtedness of the Valleytown Mineral Company to him was $19,813.59, with interest thereon from the 15th day of October, 1896, the date of said agreement. The complaint, as amended, then renewed the prayer for judgment as in the original, and also demanded judgment against the Roessler & Hasslacher...