Van Winkle v. Crowell

• Decision Date: 31 October 1892
• Docket Number: No. 23,23
• Citation: 146 U.S. 42,13 S.Ct. 18,36 L.Ed. 880
• Parties: VAN WINKLE et al. v. CROWELL et al
• Court: U.S. Supreme Court

146 U.S. 42

13 S.Ct. 18

36 L.Ed. 880

VAN WINKLE et al.

v CROWELL et al.

No. 23.

October 31, 1892.

This is an action of detinue, brought November 8, 1886, in the circuit court of Bullock county, Ala., by E. Van Winkle and W. W. Boyd, copartners as E. Van Winkle & Co., against Canty Crowell, to recover certain machinery belonging to and constituting a cotton-seed oil mill.

The plaintiffs being citizens of Georgia, and the defendant a citizen of Alabama, the suit was removed by the latter into the circuit court of the United States for the middle district of Alabama. After its removal, and in November, 1887, the latter court allowed Emanuel Lehman, Meyer Lehman, Joseph Goeter, and John W. Durr, composing the firm of Lehman Durr & Co., and Ignatius Pollak, doing business under the firm name of Pollak & Co., all citizens of New York and Alabama, to make themselves parties defendant to the suit, and they filed pleas. The pleas were to the effect that Crowell did not unlawfully detain the property sued for, as alleged in the complaint; and that it was not at the time of the commencement of the suit, and had not since been, and was not at the time of putting in the pleas, the property of the plaintiffs, but of the defendants pleading. The case was tried before a jury, which rendered a verdict for the defendants; and there was a judgment for them, with costs. The plaintiffs have brought the case here by a writ of error.

The controversy was in fact one between the plaintiffs on the one part, and Lehman, Durr & Co. and Pollak & Co. on the other part. Lehman, Durr & Co. claimed the property under a mortgage executed to them, December 4, 1885, by Samuel S. Belser and Langdon C. Parker, and their wives, to secure a debt of $30,000, with interest, and covering 1 3/4 acres of land in Bullock county, on which was an oil mill, together with the machinery therein, other land in Montgomery county, and certain other personal property. Pollak & Co. claimed under a mortgage executed to them January 2, 1886, to secure a debt of $15,000, and covering land in Montgomery county, the oil-mill land in Bullock county, the improvements thereon and appurtenances belonging thereto, and other personal property. At the time suit was brought against Crowell, the property in question was in his possession as bailee of the mortgagees. The property had been manufactured by the plaintiffs for Belser & Parker under a written contract signed by the latter, and accepted by the former, in the terms set forth in the margin.¹ At the date of the paper one of the plaintiffs visited Belser & Parker, and himself wrote the paper, which Belser & Parker signed and delivered to him. No other agreement was made than the one contained in that paper.

By that contract, the plaintiffs obliged themselves (1) to ship to Belser & Parker the machinery named therein; (2) to pay the freight thereon to Mitchell's Station, the place to which it was to be shipped; and (3) to furnish the mechanics to erect the machinery there. Belser & Parker, by the terms of the contract, agreed (1) to furnish all rough labor and the board of the men engaged in the work, and (2) to pay $12,500 for the machinery, namely, $3,000 on the receipt of the bill of lading, $4,750 on November 1, 1885, and $4,750 on March 1, 1886, with interest at 8 per cent. from the date of starting the mill.

There was a great deal of delay in shipping the machinery, and much complaint on the part of Belser & Parker. The building in which the machinery was placed was erected by Belser & Parker after the contract for the machinery was made. It was constructed for the purpose of being used as a cotton-seed oil mill, and the machinery furnished was such as was essential for only such a mill. The machinery was manufactured by the plaintiffs at Atlanta, Ga., and at various times was placed by them on railroad cars at Atlanta, consigned to Belser & Parker at Mitchell's Station, Ala. During the progress of the work, Belser & Parker paid to the plaintiffs $2,500 on their drafts drawn according to the contract, and also paid out for freight and other expenses, which the plaintiffs had agreed to pay, sums amounting to *500. The machinery was in place so that the mill could be operated prior to December 1, 1885; and Belser & Parker commenced operating it in November, 1885. There was some evidence that after December 10, 1885, the plaintiffs supplied some additional machinery, but the evidence did not identify it. The land on which the building stood in which the machinery was placed belonged to Belser & Parker.

On December 4, 1885, the date of the mortgage to Lehman, Durr & Co., Belser & Parker were indebted to that firm in debts which were then due. They obtained from Lehman, Durr & Co. an extension of those debts, and also further advances, making a total indebtedness of $30,000, for which the mortgage was given. It was recorded in the proper office on the 3d of February, 1886, within three months after its execution. On the 2d of January, 1886, the date of the mortgage to Pollak & Co., Belser & Parker owed to Pollak & Co. debts which were past due; and an agreement was then made for their extension, and new advances were made, the whole amounting to $15,000. The mortgage was duly recorded on February 4, 1886.

On the 11th of December, 1885, one of the plaintiffs visited Belser & Parker, and with one of the latter inspected the mill. It was agreed between them that certain additional machinery should be provided, and other portions changed, but what portions does not appear; and that the balance due for the machinery should be settled by three notes, dated December 11, 1885, and signed by Belser & Parker, one for $1,500, with interest at 8 per cent. per annum, due February 1, 1886; a second of like tenor, for $3,500, due March 1, 1886; and a third for $4,633.52, due December 1, 1886. The first one of the three notes read as in the margin,² and the others corresponded mutatis mutandis.

W. A. Gunter and John D. Roquemore, for plaintiffs in error.

[Argument of Counsel from pages 46-48 intentionally omitted] H. C. Tompkins, for defendants in error.

Mr. Justice BLATCHFORD delivered the opinion of the court.

The plaintiffs rely for a recovery of the property on title claimed under the three notes. All of the machinery, except a few pieces, which were not pointed out by the evidence, had been received and was in use by Belser & Parker prior to December 1, 1885; and no work of construction was done after the latter date on the mill or the machinery. Testimony was given by E. Van Winkle, one of the plaintiffs, that they did not turn over the machinery to Belser & Parker (otherwise than by shipping it and permitting Belser & Parker to operate it) until upon the settlement made after such inspection in December, 1885; and that Belser & Parker, prior to that time, did not accept the machinery as a compliance with the contract, and then only accepted it conditionally upon the plaintiffs supplying and changing certain parts of the machinery. That testimony was admitted against the objection of the defendants, and then on their motion was excluded; and to the latter action of the court the plaintiffs excepted.

The same witness testified that the machinery was manufactured under a guaranty, and that the plaintiffs permitted its operation by Belser & Parker in order that it might be fully tested. That testimony was objected to when offered, but was admitted, and was then excluded on motion of the defendants; to which action of the court the plaintiffs excepted.

It was also testified that, under the terms of the contract for the machinery, the plaintiffs were to erect it, but the testimony, on motion of the defendants, was excluded on the ground that the written contract was the evidence of what the plaintiffs agreed to do. To that ruling of the court the plaintiffs excepted.

All that testimony, we think, was properly excluded. E. Van Winkle testified that he made no contract with Belser & Parker except the one contained in the written order from them which he accepted. That contract contained no guaranty, except the implied guaranty that the machinery should be reasonably fit for the uses for which it was sold. It contained an express direction to the plaintiffs to ship the machinery to Belser & Parker at Mitchell's Station, Ala., and an express provision that the plaintiffs were to furnish a specified part of the force necessary to erect the machinery. The plaintiffs were never in possession of the mill.

The condition of the title to the machinery, on and prior to December 4, 1885, was a conclusion of law, to be drawn from the undisputed facts of the case; and the witness could not testify to such legal conclusion. The contract contained no stipulation that Belser & Parker were to be allowed to test the machinery before accepting it. Moreover, any provisions in regard to erecting or testing the machinery would have been for the benefit of Belser & Parker, and could have been waived by them. They had a right to accept it without testing it, and even before its erection; and the plaintiffs had no right to insist that it should not be accepted until after those things had been done. Whenever Belser & Parker did any act which showed that they had waived those things and accepted the machinery, the title to it vested at once in them; and, as to innocent purchasers, such as the mortgagees were, the title could not be revested in the plaintiffs. Belser & Parker manifested their acceptance of the machinery by giving the mortgages, after having used and operated it.

By the terms of the contract, one of the payments was to be made by Belser & Parker on their receipt from the plaintiffs of the bill of lading; and, under that provision, the title passed to Belser & Parker as soon as they received the machinery, if not before. By the transfer of the property by Belser & Parker, by the mortgages, after they had received it, the...