Mound Coal Co. v. Jeffrey Mfg. Co.

• Citation: 240 F. 412
• Decision Date: 26 February 1917
• Docket Number: 1369.
• Parties: MOUND COAL CO. v. JEFFREY MFG. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

240 F. 412

MOUND COAL CO. v. JEFFREY MFG. CO.

No. 1369.

United States Court of Appeals, Fourth Circuit.

February 26, 1917

Hubbard & Hubbard, of Wheeling, W. Va., for plaintiff in error.

W Wilson Carlile, of Columbus, Ohio (J. C. Simpson, of Moundsville, W. Va., and J. B. Sommerville, of Wheeling, W Va., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

This case was heard and decided at the May term, 1916, of this court, and the opinion is to be found in 233 F. 913, 147 C.C.A. 587, wherein the judgment of the court below was affirmed. A petition for rehearing was filed on the 21st day of June, 1916, and a rehearing was granted as to the fourth assignment of error (240 F. 129, . . . C.C.A. . . .); the assignment in question being in the following language:

'The court erred in making its last-mentioned order sustaining the plaintiff's motion for judgment, and entering judgment against the defendant for the sum of $8,726.85 with interest from said date and cost.'

The Mound Coal Company claims that a minimum royalty of $5,000 was due to it by the Mound City Coal Company when the property was abandoned by the Mound City Coal Company, and that it was entitled to enforce a landlord's lien for that sum, less a credit of $2,230.30, which had been paid by the lessee, and less $1,615.76 collected in bankruptcy proceedings. This contention is based on the ground that the Mound City Coal Company abandoned its contract at the expiration of six months, and therefore one-half of the minimum royalty of $10,000 became automatically due. The Mound Coal Company, as landlord, acting under the impression that it was necessary to take a mortgage on the property placed on the premises to secure the payment of any royalties that might be due under the lease, inserted a clause in the same to that effect, but failed to have the lease recorded.

The plaintiff, the Jeffrey Manufacturing Company, had sold with reservation of title to the Mound City Coal Company certain machinery on the 16th day of June, 1911, and the conditional contracts for the sale of this property were recorded on the 19th day of August, 1911, in pursuance of chapter 74, section 3831, of the Code of West Virginia, which is in the following language:

'And if any sale be made of the goods and chattels, reserving the title until the same is paid for, or otherwise, and possession

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