Mound Coal Co. v. Jeffrey Mfg. Co.

• Decision Date: 15 May 1916
• Docket Number: 1369.
• Parties: MOUND COAL CO. v. JEFFREY MFG. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

233 F. 913

MOUND COAL CO. v. JEFFREY MFG. CO.

No. 1369.

United States Court of Appeals, Fourth Circuit.

May 15, 1916

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

W Wilson Carlile, of Columbus, Ohio (J. Coleman 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 is an action in detinue, in which the defendant in error, the Jeffrey Manufacturing Company, claims title and the right to possession of certain machinery sold to the Mound City Coal Company, a copartnership, under three conditional sale contracts dated May 17, 1911. The plaintiff in error will hereafter be referred to as defendant, and the defendant in error as plaintiff; such being the respective positions occupied by the parties in the court below.

This machinery was shipped under the conditional sale contracts mentioned to the Mound City Coal Company, at Moundsville, W Va., in the latter part of June, 1911, and the contracts were duly recorded on the 19th day of August, 1911, in the office of the clerk of the court for the county of Marshall, to which county the property was delivered. Title to the property mentioned in the contracts was reserved in the vendor until full and final payment of the purchase money. No part of the purchase money was ever paid to the vendor. The defendant was the owner of the mining property upon which the machinery was delivered. It had leased the property to one L G. Orr before the execution of the contracts referred to. Orr was a member of the copartnership known as the Mound City Coal Company, the purchaser; but the lease was a personal lease to Orr, and the Mound City Coal Company was not a party to the lease, either directly or by assignment. The lease was made for a term of 12 years, and was not recorded, and it is conceded, if important, that the plaintiff, vendor, had no knowledge of its provisions.

The machinery in question consisted of one mine locomotive, four electric coal-cutting machines, and one electric generator set, consisting of a Ridgeway engine and Jeffrey generator. On or about October 2, 1911, and about 3 months after the delivery of the machinery, Orr, the lessee, abandoned the property and the lessor re-entered and took possession. At the time of the re-entry the generator set had been mounted, but had not been used, nor was any of the machinery delivered used until the defendant re-entered the property, prior to the issuance of the writ in detinue by the plaintiff. The defendant received royalties under the lease amounting to $3,244.11 from the lessee, and also collected the sum of $1,615.76 from the sale of the assets of the Mound City Coal Company in bankruptcy proceedings, making a total of $4,869.87, before the expiration of the first 6 months of the lease.

The stipulation of facts states that the lessee was entitled to a credit, entirely unexplained, of $2,230.34, but royalties amounting to $4,859.87 were admittedly paid during the first 6 months of the lease. The minimum provided to be paid each 6 months was $5,000. The machinery in question was never seized nor attached under any distress warrant or other legal process for the purpose of enforcing a landlord's lien, nor were any measures taken by the defendant for the assertion of any legal right, title, or interest in the property until after re-entry and the present suit was brought, nor was the property in dispute seized or removed by any officer of the law under process issued at the instance of any claimant. Quoting from the transcript of record, page 38, first paragraph:

'Mr. Carlile: It is stipulated that the defendant has not proceeded to enforce the lien by distress warrant.

'Mr. Hubbard: The defendant has never sued out a distress warrant on any of the property in controversy, nor taken legal steps to enforce its claim of a landlord's lien thereon except in this suit.

'Mr. Carlile: Nor has the property in dispute been seized or removed by any officer of the law under process issued at the instance of any third party or other party. That is one of the points where you might have a lien without issuing a distress warrant.

'Mr. Hubbard: Nor has the said property been seized or removed from the premises of the landlord defendant by any officer of the law acting under any process issued at the instance of any other claimant.'

The conditional sale contracts referred to, under which the plaintiff claims the right to possession of the property and which were duly recorded, as stated, on the 19th day of August, 1911, and prior to the re-entry by the defendant, contain the following clause:

'The title and ownership of the property called for and furnished under the terms of this contract shall remain in the Jeffrey Manufacturing Company until the full and final payment therefor shall have been made according to the terms agreed upon, and notes, if any, shall have matured and been paid in full. In case of default in any of the payments above provided for the Jeffrey Manufacturing Company may repossess itself of the withinmentioned property and all additions thereto wherever found, and shall not be liable in any action at law on the part of said Mound City Coal Company for such reclamation of its property, nor for the repayment of any money or moneys which may have been paid by said Mound City Coal Company, in part payment for said installation and equipment.

'It is further agreed by the parties hereto that any machinery or parts delivered pursuant to the terms of this contract shall not become a fixture by reason of being attached to real estate, but the same may be separated from the real estate and sold or reclaimed in the manner provided by the law governing conditional sales upon default in payment and without liability on the part of the Jeffrey Manufacturing Company or its agents for such sale or removal.' The machinery was on the premises belonging to the landlord at the time of its re-entry, but there was no assertion of title on the part of the landlord, and the latter has made no attempt to fasten a lien upon this property. It is admitted that the title of the property resides in the plaintiff.

The defendant claims right to the possession of the property which is the subject of this suit, and the plaintiff claims title and the right to possession under its recorded conditional sale contracts. It was stipulated at the trial of the case that, in the event the court found in favor of plaintiff, a money judgment should be entered in place of an order directing the return of the property and an assessment of damages for its detention, and a judgment for the sum of $8,726.85 was entered pursuant to the stipulation.

The defendant seeks to have certain questions as respects this controversy reviewed by this court, but the assignments of error are not based upon bills of exception as required by our rules. However, the first assignment of error relates to the court's action in overruling defendant's demurrer to the plaintiff's declaration.

It appears that the defendant pleaded to the declaration, went to trial, and submitted testimony, and did not, at the conclusion of the trial, renew the demurrer and ask for a verdict under all the evidence. The plaintiff insists that the course pursued by the defendant amounted to a waiver of the demurrer, and 'there can be no valid assignment of error to the action of the District Court in overruling it originally. ' This position is untenable for the reason that this court has the power to pass upon the question as to whether the declaration states a cause of action. Therefore the ruling of the lower court in this respect will be treated as a plain unassigned error appearing on the record. Teal v. Walker, 111 U.S. 242, 4 Sup.Ct. 420, 28 L.Ed. 415; Lehnen v. Dickson, 148 U.S. 71, 13 Sup.Ct. 481, 37 L.Ed. 373.

It is insisted by defendant that the demurrer to the declaration should have been sustained upon the ground that plaintiff 'fails to aver the right of possession in the plaintiff below. ' The declaration, among other things, contains the following language as to the possession of the property by the plaintiff, to wit:

'Still doth wrongly and

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