Wheeler v. Walton & Whann Co.

Citation64 F. 664
PartiesWHEELER v. WALTON & WHANN CO. (DAVIS PYRITES CO., Intervener).
Decision Date01 December 1894
CourtUnited States District Courts. 3th Circuit. United States District Court (Delaware)

Wm. C Spruance and Arthur W. Spruance, for petitioner.

Bradford & Vandegrift, for receivers.

WALES District Judge.

This is an application for an order on the receivers of the Walton &amp Whann Company to deliver to the petitioner 1,300 tons of Small's Pyrites, which came into the possession of the company in the manner hereinafter stated. The Walton & Whann Company had been for many years prior to the 6th day of June 1893, large manufacturers of fertilizers. On that day the company was proved to be insolvent, and its property and effects passed into the hands of receivers appointed by this court. The receivers, under the direction of the court continued the business of the company for the purpose of compounding and working up the materials they found on hand, and by selling the manufactured product, until the 1st day of September, 1894, when the works were shut down. The petition sets out in full a contract made between the petitioner and the Walton & Whann Company, dated January 31, 1894, whereby the petitioner agreed to sell, and the Walton & Whann Company agreed to buy, 'the sulphur contents in about five thousand tons' of Small's pyrites. After stipulating the price to be paid per ton, the place of delivery, and the terms of payment, the contract provided further:

'The cinder from the above ore after burning to be the property of sellers, and to be stored by buyers free of cost until sent for. The cinder to be kept separate and apart from other cinder, and free from dirt and contamination with any other material, and to be stored in a readily accessible place. Accumulation not to exceed at any one time about 2,000 tons. And it is hereby understood and agreed that the sellers or their representative shall always have access to the place where the ore and cinder are stored. Buyers agree to load cinder f.o.b. cars or boat for shipment, at a cost of not exceeding 17 1/2 c. per ton.'

Pursuant to the contract, the petitioner, prior to the 1st day of May, 1894, had delivered to the Walton & Whann Company 305 tons of ore, all of which has been burned, and the sulphur contents thereof were paid for by the Walton & Whann Company, and the cinder thereof returned to the petitioner by the receivers. After the delivery and reduction of the first lot of ore, as just mentioned, and before the appointment of the receivers, the petitioner delivered additional quantities of ore, amounting to 2,339 tons, of which about 1,039 tons were burned by the Walton & Whann Company and the receivers; and there now remain, in the possession of the receivers, at the works of the company, about 1,300 tons of unburned ore. The cinder of the 1,039 tons of the ore which were burned by the company and its receivers has been delivered to the petitioners. The receivers claim the unburned ore now in their possession as a part of the assets of the company, and they admit that they do not intend to use any portion of the ore or to extract the sulphur therefrom, and also that they propose to sell the ore in its present condition for the benefit of the general creditors of the company.

Of the several questions which were discussed by counsel at the hearing, it is unnecessary to consider more than one. The contract of January 31, 1894, was an executory one, and is not assignable to a third party. 'The sulphur contents' of the ore, and not the ore, were sold to the Walton & Whann Company, and the receivers hold possession of the ore on the same terms and conditions on which it was delivered to the company. One of the conditions of the sale was cash, or what was equivalent to it, on delivery; but this...

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7 cases
  • First National Bank of Laramie v. Cook
    • United States
    • United States State Supreme Court of Wyoming
    • April 25, 1904
    ...(17 Ency. Pl. & Pr., 786, 791-3; Minot v. Mastin, 95 F. 739; Cohen v. Min. Co., id., 583; Riggs v. Whitney, 15 Abb. Pr., 388; Wheeler v. Walton, 64 F. 664; Winchester Davis Co., 67 F. 45; Beach on Rec., 229; High on Rec., 39, 685.) The contract right of foreclosure of a mortgage cannot be a......
  • Equitable Trust Co. of New York v. Connecticut Brass & Mfg. Corp.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • April 30, 1923
    ...to the copper should remain in it, the United States would have acted in accordance with the usual and proper procedure. Winchester v. Davis Pyrites Co. (C.C.) 64 F. 664, affirmed in 67 F. 45, 14 C.C.A. 300. That was not, the course pursued. It asked instead to be permitted to intervene to ......
  • Cochrane v. WF Potts Son & Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 24, 1931
    ...was in possession without authority to hold it, of property to which they were entitled, ordered it delivered to them. Wheeler v. Walton & Whann Co. (C. C.) 64 F. 664; Tift v. Southern Ry. (C. C.) 159 F. 555; Scott v. Farmers' Loan & Trust Co. (C. C. A.) 69 F. 17; Smith v. McCullough, 104 U......
  • Gay v. Ray
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 1, 1907
    ......(D. C.) 110 F. 927, 6. Am. Bankr. Rep. 535; In re Lesser (D. C.) 100 F. 433; Wheeler v. Walton & Whann Co. (C. C.) 64 F. 664; Winchester v. Davis Pyrites Co., 67 F. 45, 14. C. C. A. ......
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