Southern Granite Co. v. Wadsworth

• Decision Date: 26 May 1897
• Citation: 22 So. 157,115 Ala. 570
• Parties: SOUTHERN GRANITE CO. v. WADSWORTH.
• Court: Alabama Supreme Court

22 So. 157

115 Ala. 570

SOUTHERN GRANITE CO. v. WADSWORTH.

Supreme Court of Alabama

May 26, 1897

Appeal from circuit court, Colbert county; J. B. Moore, Special Judge.

Statutory action of detinue by the Southern Granite Company against Herbert Wadsworth, as receiver of Chapman, Reynolds & Co. suing to recover certain specifically described pieces of granite. From a judgment in favor of defendant, plaintiff appeals, and assigns the rendition thereof as error. Affirmed.

The defendant pleaded the following plea in abatement: "The said defendant, by his attorney, prays judgment of the complaint, and that the same may be quashed, because he says that he is the receiver of Chapman, Reynolds & Co., duly appointed by the circuit court of the United States for the Northern division of the Northern district of Alabama, in the suit of Union National Bank of Chicago against Chapman Reynolds & Company, in equity; that the court has not granted consent to plaintiff herein to bring this action, and this is not a suit in respect to any act or transaction of defendant in carrying on the business connected with such property, but is a suit for the purpose of taking out of defendant's possession property coming in his hands under his appointment as such receiver."

To this plea the plaintiff filed the following replications:

"Comes the plaintiff, and for replication to the plea in abatement in this cause, says the suit in this cause is against the defendant, and is in respect to his acts and transactions as such receiver, in carrying on the business connected with his appointment as such receiver, in this, he is under the color of his office as such receiver, holding the property and claiming it as a part of the assets of Chapman, Reynolds & Company, and as such receiver he is depriving the plaintiff of the possession and control of its property; and as such receiver, he has applied for an order to sell the property as a part of the assets of Chapman, Reynolds & Company.

"(2) That the plaintiff has the right under the statute of the United States to institute this suit without first obtaining an order of the federal court appointing said receiver, because the acts and wrongs complained of grew out of the acts and transactions of defendant in carrying on the business connected with his receivership, and the property belonging to the receivership."

After filing this abstract, the plaintiff, upon his motion, was allowed to amend his complaint by striking out after the name of the defendant, Herbert Wadsworth, the words, "as receiver of Chapman, Reynolds & Company."

The cause was tried by the court, without the intervention of a jury, upon the following agreed statement of facts:

That the stone sued for was shipped by the plaintiff from Lathonia, Ga., to Riverton, Ala., consigned to Chapman, Reynolds & Co., under a written contract dated 29th of January, 1894, in the following words and figures:

"This contract, made in duplicate this 29th day of January, 1894, by and between the Southern Granite Co., of Atlanta, Ga., parties of the first part, and Chapman, Reynolds & Co., of Riverton, Ala., parties of the second part, witnesseth: That the parties of the first part, for the consideration hereinafter named, agree to furnish and deliver f. o. b. cars at Riverton, Ala., the pintle blocks and quoin stones, being of cut granite, required for the canal lock at Riverton, Colbert county, Ala., as shown on detail No. 1. The stone to be of sound Lathonia, Ga., granite, and cut according to size, shape and specifications as provided by the U.S. engineer in charge of said government work, subject to inspection and acceptance of the engineer in charge of the work for the U.S. government, or his representative. This stone to be cut and shaped ready to set, and furnished as required by the parties of the second part.

"In consideration whereof, the parties of the second part agree to pay to the parties of the first part the sum of thirty-six ($36.00) dollars per cubic yard. Payment to be made monthly on or about the 20th of each month, for all granite delivered the month previous, less 10 per cent., which is payable on the completion of this contract. It is mutually understood and agreed that the inspection and acceptance of the U.S. engineer in charge shall be final and conclusive, and the estimate of the U.S. engineer in charge shall govern all payments.

"Said Chapman, Reynolds & Co. are to give said Southern Granite Co. six weeks' notice of shipment, and said Southern Granite Co. are not to ship any granite until notified by Chapman, Reynolds & Co. either by letter or wire to commence shipment of said granite, for which said Chapman, Reynolds & Co. are to pay Southern Granite Co. thirty-six ($36.00) dollars per cubic yard f. o. b. cars at Riverton, Ala.

"[Signed] Southern Granite Co. [Seal.]

"J. A. Eberhardt, V. P. & Genl. Mgr.

"[Signed] Chapman, Reynolds & Co. [Seal.]

"Wm. Chapman.

"Witness:

"[Signed] S.E. Phelps."

That the stone was shipped in two cars; the first car, containing about one-half of the stone sued for, was shipped on the 12th of November, 1894, and reached Riverton about the 19th of November, 1894. The second car was shipped on the 16th of November, 1894, and reached Riverton on the 23d of November 1894. The defendant was appointed as receiver of Chapman, Reynolds & Co. by the United States circuit court at Huntsville, Ala., on the 20th of November, 1894, and took charge of the stone sued for and paid the freight on it as receiver of Chapman, Reynolds & Co. That Chapman, Reynolds & Co. were insolvent at the time the receiver was appointed. Before this suit was instituted, the plaintiff demanded possession of the stone from the defendant, and offered to pay him the freight which he had paid on it; and the defendant refused to give up the stone, claiming to hold it as the property of Chapman, Reynolds & Co. That the stone is worth thirty-six dollars per cubic yard, and each stone contained the number of cubic feet as alleged in the complaint. The first stone described in the complaint contained 90.9 cubic feet; the second two sued for contained 180 cubic feet; the third one sued for, 125.1 1/2 cubic feet; the fourth one, 90.9 cubic feet; the fifth one, 143 cubic feet; the sixth one, 105.10 1/2 cubic feet; the seventh, 90.9 cubic feet. That defendant, as receiver aforesaid, applied to the United States court for an order to sell this stone with other stone in his hands as such receiver, and the order has been granted by the judge of the United States court for the Northern division of the Northern district of Alabama. That the plaintiff in this suit was not a party to the proceedings in the federal court, in which the order of sale was granted. That under the order of the United States court the receiver was ordered to take charge of all the property of Chapman, Reynolds & Co., and did take charge and possession of the stone in this suit under such order, and claims the same in his possession as such receiver. That no...