Wittenberg v. Northern Idaho Pine Lumber Co., Ltd.
| Decision Date | 29 November 1912 |
| Citation | 23 Idaho 66,131 P. 1 |
| Parties | WILLIAM WITTENBERG, Respondent, v. NORTHERN IDAHO PINE LUMBER COMPANY, LIMITED, Respondent, and HARRY A. RICHARDS, Intervenor and Appellant |
| Court | Idaho Supreme Court |
APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. John M. Flynn, Judge.
Action upon a debt and the appointment of a receiver. Affirmed.
Judgment affirmed. Costs awarded to respondent.
John P Gray and Frank M. McCarthy, for Appellant.
Elder & Elder, for Receiver.
C. H Potts, for Plaintiff.
Counsel cite no authorities on point decided.
This action was instituted in the district court of Kootenai county by William Wittenberg against the Northern Idaho Pine Lumber Company, Ltd., a corporation, to recover the amount due on two promissory notes, and for the purpose of having a receiver appointed to take charge of the property owned and possessed by the company. The suit is founded on two promissory notes, the first of which is dated May 25, 1907, for the sum of $ 750, due in six months, payable to F. T. Camp, and signed by the Northern Idaho Pine Lumber Company, Ltd., and indorsed "Pay to William Wittenberg, F. T. Camp." The second note is dated June 1, 1907, for the sum of $ 4,000, and is payable to William Wittenberg, and executed by the same company, and indorsed "$ 2,000, March 12, 1911." The complaint also alleges that such notes are due and have not been paid, and asks judgment.
The complaint, in addition to the above allegations, sets forth the facts upon which a receiver is asked to be appointed to take charge of the property of the Northern Idaho Pine Lumber Company. The grounds alleged for the appointment of such receiver in brief are: That the sawmill owned by the company was destroyed by fire, and that the insurance upon said property had been paid to one Harry A. Richards, and applied on his own personal account, and had not been applied to the payment of creditors of the company, and that mortgages have been given upon the property of the company, and debts created, and that such company is insolvent; that the president and secretary of the company and Harry A. Richards have conspired together for the purpose of placing all the property and assets of the company in the possession of Richards, for the purpose of defrauding the plaintiff and other creditors. An affidavit was also filed supporting the allegations of the complaint, and upon the hearing the court appointed George Ott receiver of the company, on the 24th of August, 1911, and the receiver qualified and took possession of the assets and property which he found located at the place where the defendant company was doing business. Thereafter the receiver filed an answer to the complaint in intervention, and in such answer denied any right, title or interest of Richards in or to said property. A petition in intervention was filed in said cause by Harry A. Richards, the appellant, and in this petition Richards sets forth that on the 26th of January, 1910, he made a contract with the lumber company, under the terms of which he was to make advances to said company of sums of money as required by the company in the conduct of its business, and in pursuance of the terms and conditions of the contract took possession of the property conveyed thereby, and sold and disposed of such property as partial payments of advances, before the rights of creditors of the company attached. In accordance with such contract, between the 26th of June, 1910, and the 29th of August, 1911, he advanced on behalf of defendant the sum of $ 32,211; that he received from the sales of lumber and other timber products $ 9,566.47, which amount was credited upon the advances made; that on the 23d of August, 1911, the defendant was indebted to said Richards in the sum of $ 22,644.53, and that at such times he held invoices for goods which were then on the premises of defendant, and the indebtedness was in the nature of advances; that during said periods of time he was in possession of and entitled to the possession of all the white pine and western pine No. 4 and other pine and lumber and logs afloat in the river, and had the right to enter upon the premises of defendant and to remove any and all of said lumber and logs, and to dispose of the same in accordance with the contract, together with the right to sell and dispose of all lumber in pile in the yards of the defendant and all logs, together with all unfinished lumber products, and apply the same upon advances; that all the money advanced was used in the business of acquiring said property described in the contract; that all the property taken possession of by the receiver was acquired by the company by reason of such advances, and that the receiver was so informed at the time he took such possession; that the petitioner in intervention claimed the right, title and interest in and to said property by reason of his contract; and that the possession of the receiver was unlawful and wholly without right; that the value of said property is about $ 16.000.
Other facts are alleged in the application for intervention, but they are not material upon the consideration of the questions presented upon appeal.
The complaint in intervention was permitted, and the facts alleged in the answer made by the intervenor to the complaint were substantially in the language of the application of the petition in intervention, as above referred to. The receiver also filed an answer to the complaint in intervention, and denied the material allegations of the complaint in intervention. The plaintiff also filed an answer, denying the allegations of the complaint in intervention.
Upon these issues the cause was tried to the court, and findings of fact and conclusions of law were made in favor of the receiver, and it was decreed that the intervenor, Harry A. Richards, had no lien upon the property of the Northern Idaho Pine Lumber Company, Ltd., in the possession of the receiver, and that said intervenor is estopped from asserting or claiming any lien upon the property of the defendant company, or any portion thereof in the possession of the receiver. A motion for a new trial was made and overruled, and this appeal is from the judgment and from the order overruling a motion for a new trial.
Many errors are assigned, but the principal argument of counsel for appellant is based wholly upon the proposition: Whether, under the evidence, the appellant is entitled to an equitable lien against the property involved and taken possession of by the receiver, and whether he has power to take possession of such property and sell and dispose of the same and apply the proceeds thereof in payment of sums due him for advances made under the terms of the contract entered into between Harry A. Richards and the Northern Idaho Pine Lumber Company.
The court found that, on the 26th day of January, 1910, the Northern Idaho Pine Lumber Company, Ltd., had a large lumber manufacturing plant situated at Lane in the county of Kootenai, Idaho, at which place was also located many of its tangible assets; that it continued its lumber manufacturing operations...
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