Wing v. Dillingham

• Decision Date: 05 February 1917
• Docket Number: 2808.
• Citation: 239 F. 54
• Parties: WING v. DILLINGHAM et al.
• Court: U.S. Court of Appeals — Fifth Circuit

239 F. 54

WING v. DILLINGHAM et al.

No. 2808.

United States Court of Appeals, Fifth Circuit.

February 5, 1917

Burns District Judge:

This is a suit in equity by the Houston Oil Company, a Texas corporation, and its receiver, Charles Dillingham, to recover 12 sections of land from the defendant, Wilson D. Wing. The defendant was a director and stockholder in the corporation plaintiff. The corporation, at and prior to said time, was the owner of more than 850,000 acres of timbered lands situated in different counties in the eastern and southeastern parts of Texas. At a meeting of the directors of said company, held in the city of New York in November, 1903 the board of directors, consisting of nine members, six of whom were lawyers, the company being in great financial distress, urged their codirector, the defendant herein, to advance for its account the money necessary to pay the balance due Wallis, Landes & Co. upon a purchase of 12 sections of land and the timber thereon. There was at said time a balance of $5,672.45 due upon said timber contract said note being due November 14, 1903, and being the last of a series of five notes. On October 27, 1903, having theretofore purchased the timber, Wallis, Landes & Co. purchased from the state of Texas said 12 sections of land, paying $2 per acre therefor, receiving patents thereto in the month of November of the same year. January 14, 1901, Wallis, Landes & Company conveyed said lands and the pine timber growing thereon to the Beaumont Lumber Company. Under date of January 15, 1904, the Beaumont Lumber Company, at the instance of the Houston Oil Company, conveyed said lands and timber to defendant, Wilson D. Wing.

The defendant having agreed to advance the money necessary to pay off the debt due Wallis, Landes & Company, the Houston Oil Company, at a meeting of its directors in the city of New York, on the 26th day of January, 1904, adopted the following resolution; Wilson D. Wing not voting:

'Resolved, that the president of this company be and he is hereby authorized on behalf of this company to execute contract with Mr. Wilson D. Wing, in re Wallis, Landes & Co. lands, form of which contract is now before this board.'

Acting under said resolution, the Houston Oil Company and Wilson D. Wing, the defendant herein, on January 27, 1904, executed the following contract:

'State of Texas, County of Harris.

'This agreement, entered into this day by and between Wilson D. Wing, of Bangor, Maine, party of the first part, and the Houston Oil Company of Texas, party of the second part, the said Houston Oil Company of Texas being a private corporation, duly incorporated under the laws of the state of Texas, and being authorized to make this agreement by resolution of its board of directors, duly passed, witnesseth:

'First. That Wilson D. Wing has purchased and now owns the following twelve tracts of land, each situated in Jasper county, Texas, and each patented to Wallis, Landes & Co. by the state of Texas, viz.: (Being the land described in the original bill in this suit.)

'Second. That said Wilson D. Wing hereby binds himself, his heirs, legal representatives, or assigns, to convey all of his right, title, and interest in and to the hereinbefore described lands to the Houston Oil Company of Texas, on or before six months from the date hereof, for the consideration of $6,749.12, and whatever sum said Wilson D. Wing may have to pay to his attorney or others for expenses connected with the sale of said lands to the said Beaumont Lumber Company by Wallis, Landes & Co. to the said Wilson D. Wing, and all taxes, and any counsel fees, traveling or other expenses which said Wing may deem it proper to incur in protecting the title to said property, or in caring for or protecting said lands or the timber thereon, and for the further consideration of the payment or assumption of payment by the Houston Oil Company of five certain promissory notes, each for the sum of $3,060.50, executed by the Beaumont Lumber Company to Wallis, Landes & Co., each bearing 10 per cent. per annum interest from October 27, 1903, payable semi-annually, and each bearing date the . . . day of . . ., 19 . . ., payable to the order of Wallis, Landes & Co. in one, two, three, four, and five years after October 27, 1903, respectively, and for the further consideration of the payment by the said Houston Oil Company of Texas of 10 per cent. per annum interest on the said $6,749.12, and the expenses above referred to.

'Third. And the said Houston Oil Company of Texas, for the consideration above recited, agrees to purchase said lands from the said Wilson D. Wing on or before six months from this date, and to pay the cash consideration hereinbefore provided for, together with the interest as therein provided, and to pay or assume to pay the several notes to Wallis, Landes & Co. hereinbefore provided for.

'Fourth. If the Houston Oil Company of Texas, on or before six months from this date, shall pay the cash consideration hereinbefore provided for, including expenses as hereinbefore provided, and shall likewise pay or assume to pay the five certain promissory notes hereinbefore referred to, then the said Wilson D. Wing will execute and deliver to the said Houston Oil Company of Texas a deed conveying to it all of his right, title, and interest in and to the said several tracts of land, with warranty clause against any one lawfully claiming or to claim any of said lands, by, through, or under said Wilson D. Wing, and no further.

'Fifth. It is specially understood and agreed that time is made the essence of this agreement, and that should the Houston Oil Company of Texas fail to pay the considerations, as hereinbefore provided, with interest thereon, as hereinbefore provided, within six months from this date, the five certain promissory notes, then the obligation of said Wilson D. Wing to sell said lands to the Houston Oil Company of Texas, and the obligation of said Houston Oil Company of Texas to purchase said lands from said Wilson D. Wing, shall each and both finally terminate, so that neither the said Wilson D. Wing, his heirs, representatives, or assigns, nor the Houston Oil Company of Texas, shall be any further liable in any manner whatsoever under this agreement, or have any damages for failure to comply with same.

'Sixth. It is specially understood that the Houston Oil Company of Texas shall, ten days before it calls for any conveyance hereunder, give to the said Wilson D. Wing notice in writing, by registered mail addressed to him at Bangor, Maine, that it is ready to close said purchase, and the close of the matter shall be made at the Merrill Trust Company, Bangor, Maine, all payments then to be made by the said Houston Oil Company of Texas, to be made either in cash or by certified check of a New York bank or trust company.

'Seventh. It is specially understood and agreed that this agreement is entered into in the state of Texas, and that it is to be governed by the laws of said state.'

On the following day the Maryland Trust Company filed its bill of complaint against the Houston Oil Company and the Kirby Lumber Company with the clerk of this court at Houston, and receivers of said company were appointed on February 1st thereafter. The Oil Company and its receiver not being able to repay the said Wing the money so advanced within the time named in said contract, and the said defendant not consenting to extend the time for such payment, this suit, in the nature of a supplemental and ancillary bill, was filed March 20 1906, a little less than 20 months from the expiration of said contract. The plaintiff tenders all sums of...