Winchester v. Davis Pyrites Co., 5.
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
| Citation | 67 F. 45 |
| Docket Number | 5. |
| Parties | WINCHESTER et al. v. DAVIS PYRITES CO. |
| Decision Date | 22 March 1895 |
67 F. 45
WINCHESTER et al.
v.
DAVIS PYRITES CO.
No. 5.
United States Court of Appeals, Third Circuit.
March 22, 1895
Lewis C. Vandegrift, for appellants.
Arthur W. Spruance and W. C. Spruance, for appellee.
Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District Judge.
DALLAS, Circuit Judge.
The action of the court below was clearly right. The opinion filed by the learned judge of that court fully states the case, and also relieves us from discussion of the questions of law which he considered. Briefly stated, the material facts are these: The appellee sold to the Walton & Whann Company 'the sulphur contents in about 5,000 tons * * * of Small's pyrites. ' The ore was to be burned by the purchaser of the sulphur, and the cinder remaining after the extraction of the sulphur was to be the property of the seller. Such, among others, [67 F. 46.] are the terms of the written agreement, the indubitable effect of which, as a whole, was, in our opinion, to require that all ore delivered should be burned, and that no part of it should be otherwise disposed of. The custody of the property of the Walton & Whann Company was taken by the court below, and passed into the hands of receivers of its appointment, who are the present appellants. The receivers found at the works of that company a considerable quantity of the unburnt ore which had been accepted by it under the contract which has been mentioned. Continuing for a short time to operate the then existing plant, the receivers burned some of this ore, and with respect to the part so burned there is no controversy. There remained, however, about 1,300 tons of unburnt ore, which it was admitted the receivers did not intend to-- in fact, could not-- burn, but which they proposed to sell for the benefit of their trust. This state of affairs was properly brought to the attention of the court by petition of the appellee for return of the unburnt ore to it, and we are at a loss to conceive upon what ground a court of equity could, under the circumstances, have refused compliance with this request. Retention of the ore could not have been rightfully persisted in, and the obligation to burn it be repudiated. Performance of that condition being precluded by controlling circumstances, equity could be done only by relinquishing the property to which it related. In no other way was it possible to discharge the debt of justice incurred by the court upon its...
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First National Bank of Laramie v. Cook
...Mastin, 95 F. 739; Cohen v. Min. Co., id., 583; Riggs v. Whitney, 15 Abb. Pr., 388; Wheeler v. Walton, 64 F. 664; Winchester v. Davis Co., 67 F. 45; Beach on Rec., 229; High on Rec., 39, 685.) The contract right of foreclosure of a mortgage cannot be altered, burdened, suspended or stayed e......
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Equitable Trust Co. of New York v. Connecticut Brass & Mfg. Corp., 211.
...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, however, the course pursued. It asked instead to be permitted to intervene to assert the priority of its claim over......
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Gay v. Ray
...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. 300. If the latter is the fact, the application of the trustee in bankruptcy should be denied, and the receiver should proceed to w......
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Demarest v. Dunton Lumber Co.
...519] Delaware County Commissioners v. Diebold, etc., Co., 133 U.S. 473, 488, 10 Sup.Ct. 399, 33 L.Ed. 674; Winchester v. Davis Pyrites Co., 67 F. 45, 14 C.C.A. 300; Snow v. Nelson (C.C.) 113 F. 353-358; Wald's Pollock on Contracts (3d Ed., by Williston) 594, 595; 3 Page on Contracts, p. 194......
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First National Bank of Laramie v. Cook
...Mastin, 95 F. 739; Cohen v. Min. Co., id., 583; Riggs v. Whitney, 15 Abb. Pr., 388; Wheeler v. Walton, 64 F. 664; Winchester v. Davis Co., 67 F. 45; Beach on Rec., 229; High on Rec., 39, 685.) The contract right of foreclosure of a mortgage cannot be altered, burdened, suspended or stayed e......
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Equitable Trust Co. of New York v. Connecticut Brass & Mfg. Corp., 211.
...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, however, the course pursued. It asked instead to be permitted to intervene to assert the priority of its claim over......
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Gay v. Ray
...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. 300. If the latter is the fact, the application of the trustee in bankruptcy should be denied, and the receiver should proceed to w......
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Demarest v. Dunton Lumber Co.
...519] Delaware County Commissioners v. Diebold, etc., Co., 133 U.S. 473, 488, 10 Sup.Ct. 399, 33 L.Ed. 674; Winchester v. Davis Pyrites Co., 67 F. 45, 14 C.C.A. 300; Snow v. Nelson (C.C.) 113 F. 353-358; Wald's Pollock on Contracts (3d Ed., by Williston) 594, 595; 3 Page on Contracts, p. 194......