Yellow Poplar Lumber Co. v. Chapman

• Decision Date: 05 May 1896
• Docket Number: 143.
• Citation: 74 F. 444
• Parties: YELLOW POPLAR LUMBER CO. v. CHAPMAN.
• Court: U.S. Court of Appeals — Fourth Circuit

74 F. 444

YELLOW POPLAR LUMBER CO. v. CHAPMAN.

No. 143.

United States Court of Appeals, Fourth Circuit.

May 5, 1896

J. N Baldwin and W. A. Ayers (Connally F. Trigg, on briefs), for plaintiff in error.

J. F Bullitt, Jr., and A. H. Burroughs (R. A. Ayers, J. L. Kelly Chase & Dameron, and E. M. Fulton, on briefs), for defendant in error.

Before GOFF and SIMONTON, Circuit Judges, and BRAWLEY, District Judge.

GOFF Circuit Judge.

On the 9th day of February, 1893, S. F. Chapman, the defendant in error, of Asheville, N.C., entered into a contract with M. T Green, of Illinois, and F. J. O'Connell, of Ohio, by which he agreed to deliver to them, in the Russell fork of Sandy river, at the mouth of Elkhorn, and in the Levisa fork of said river, at the mouth of Dismal creek, 50,000,000 feet of poplar timber, on the terms and conditions mentioned in said contract, which was in writing and which is here set forth in full, in order that the questions involved in this case, and now to be passed upon by the court, may be more easily comprehended and appreciated. The contract is as follows, to wit:

'It is hereby agreed, by and between S. F. Chapman, of Asheville, N.C., party of the first part, and M. T. Green, of Chicago, Illinois, and F. J. O'Connell, of Coal Grove, Ohio, parties of the second part, that for and in consideration of prices hereinafter named, and the advancement to said S. F. Chapman of the notes hereinafter referred to, said S. F. Chapman hereby agrees and binds himself to deliver to said M. T. Green and F. J. O'Connell, in the Russell fork of Sandy river, at the mouth of Elkhorn creek, and at the Levisa fork of the Sandy river, at the mouth of Dismal creek, fifty million feet of the timber that he owns, or had in any way control of, being a portion of 42,000 trees that are bought in the style of Albert Pack, trustee, and also 32,000 trees that are owned and controlled by S. F. Chapman as an individual, both on the Russell and Levisa forks of the Sandy river. All logs are to be delivered in the river below the mouth of Elkhorn on the Russell fork, and of Dismal creek on the Levisa fork: provided, that should the trees above referred to fall short of said fifty million feet, then said Chapman agrees to make up the shortage in a manner satisfactory to said Green and O'Connell. In consideration of carrying out this contract, the said M. T. Green and F. J. O'Connell agree and hereby bind themselves-- First, to pay on all clear logs 25' and up, $9.50 per thousand, Doyle's rule; second, 20' to 24' inclusive, $7.00. No. 2 log shall be a log not up to grade of No. 1, but must be free from rots, wind-shakes, and hollows; in short, No. 2 logs must be merchantable timber, add bearing not over four knots. All logs are to be measured at the small end, average diameter, and no log shall be less than 20 ' at the tip, regardless of length. Logs must be 12', 14', and 16', or their multiples. Logs 12' to 16' long are to have 4' to equalize lengths. Multiples of 12', 14', and 16' are to have 8' to equalize lengths. Said M. T. Green and F. J. O'Connell agree to make measurements every thirty days on the pits at the creek banks, where the timber is hauled by said Chapman, and on these measurements they are to pay $6.00 on No. 2 logs, and $7.00 on No. 1 logs, per M., respectively, on the contract; the balance to be paid when the logs are delivered at the points above agreed upon. Settlements to be made every sixty days, at $6.00 on No. 2 logs and $7.00 on No. 1 logs per M., and to be closed with four months' acceptances, indorsed by the Yellow Poplar Lumber Company. The first yearly settlement shall be made after the June season of 1894. Logs left over in the creek are to be measured, and, after deducting the amount of remeasurement from the original measurement, on which advance is made, the difference shall determine the amount of logs delivered. Logs left over shall be subject to two measurements,-- one to determine the amount delivered, the other to ascertain the damage to logs left over, if any; which number of feet of damaged logs would be deducted from S. F. Chapman's original measurement, or, if already credited, charged back to him. S. F. Chapman agrees to measure with his own loggers, and then M. T. Green and F. J. O'Connell will measure with S. F. Chapman. S. F. Chapman binds himself to pay his haulers and all men employed in the logging interests through orders on the store to be run by M. T. Green and F. J. O'Connell, as far as they need merchandise, at such a point as they see fit and deem expedient and most practicable in the district. One store will be operated on the Russell fork, and one on the Levisa fork. S. F. Chapman agrees not to run any store, or have any interest in one, to the detriment of said M. T. Green and F. J. O'Connell. Said M. T. Green and F. J. O'Connell agree to issue supplies to the loggers up to such an amount as ordered by Chapman, provided it is due S. F. Chapman. Said M. T. Green and F. J. O'Connell also agree to execute their two straight notes for $5,000.00 each at ninety days and four months, one dated February 6, 1893, and one of even date herewith, with the distinct understanding that these two notes are to be renewed; and ten per cent. of measurements is to be deducted monthly by said Green and O'Connell, to be applied towards the payment of said notes. And said S. F. Chapman agrees that he will use the proceeds of these notes to satisfy certain claims in the way of purchase money between himself and former partner, C. D. Cushing, for the release of a certain bill of sale of his interest in said 42,000 trees made by him to George W. Pack. Said S. F. Chapman further agrees, and is hereby obligated, to put in ten million feet, or more, of said timber a year, and in case he neglects or fails to complete or carry out this contract, then it will become the duty and right of said M. T. Green and F. J. O'Connell to proceed to carry out this contract, and to cut, haul, and deliver into the creeks the logs from the trees belonging to S. F. Chapman, and all the expenses entailed thereby are to be charged against said S. F. Chapman; and, should anything remain after this has been done, the residue will revert to S. F. Chapman.

'In witness whereof, the said S. F. Chapman, party of the first part, and M. T. Green and F. J. O'Connell, parties of the second part, have hereunto set their hands this 9th day of February, A.D. 1893.

'S. F. Chapman, 'M. T. Green, 'F. J. O'Connell

'In the presence of R. De V. Carroll.'

The said Green and O'Connell represented the Yellow Poplar Lumber Company, and the contract was for its use and benefit of which Chapman was fully advised. Soon after the execution of the contract, work thereunder was commenced, and continued until during September, 1893, when the misunderstandings between the parties concerning the same became so serious that all operations ceased. As is usual under such circumstances, the parties in interest did not agree as to the cause of their difficulties, nor as to who was to be liable for the damages, if any, caused thereby. Chapman claimed that the contract had been, with the consent of the parties thereto, modified in three particulars, as follows: First. Instead of two $5,000 notes, that two drafts, of $5,000 each, should be drawn by Green and O'Connell on the Yellow Poplar Lumber Company, and accepted by it, in favor of Chapman. Second. That Chapman should run and manage the stores referred to in the contract, he to have one-third of the profits realized from their operations. Third. That the Yellow Poplar Lumber Company, after the work under the contract had commenced, agreed to release Chapman from his obligation to renew the two $5,000.00 drafts. The Yellow Poplar Company admitted the modifications as claimed in the first and second particulars, but denied the change as claimed in the third instance. Chapman, who insisted that he had been prevented from carrying out the contract by the action of the company, instituted a suit in equity in the circuit court of Wise county, Va., in September, 1893, against Green, O'Connell, and said company, demanding damages, and praying for the seizure of defendant's property for the purpose of satisfying the same. Jurisdiction in equity was claimed on three grounds-- First, because the accounts between the parties were complicated and mutual; second, as the defendant had violated the contract, the plaintiff was entitled to have a deed by which he had conveyed the timber mentioned in the contract to the defendants set aside, and said property reconveyed to him; and, third, under the provisions of the Virginia statutes, any one having a claim against a nonresident who has property in that state can bring suit in equity against such nonresident, and sue out an attachment of such property. Soon after the suit had been instituted, the defendants, under the acts of congress relating to such matters, filed a petition in said court, asking for the removal of the case into the circuit court of the United States for the Western district of Virginia, which was done. It will not be necessary to set forth in detail the proceedings had in said cause, except in a few particulars, as the same are not involved in the questions to be passed upon at this time. It is proper to state that, in disposing of the demurrer to the bill, the judge, being of opinion that there was a misjoinder of legal and equitable causes of action, directed that the plaintiff file, on the law side of the court, a declaration, for the purpose of prosecuting his claim for damages against the defendant on the breaches of the contract, as charged. Such declaration was duly filed, defendant pleaded, issue was joined, and a trial had, the jury...