Van Winkle v. Crowell
This is an action of detinue, brought November 8, 1886, in the circuit court of Bullock county, Ala., by E. Van Winkle and W. W. Boyd, copartners as E. Van Winkle & Co., against Canty Crowell, to recover certain machinery belonging to and constituting a cotton-seed oil mill.
The plaintiffs being citizens of Georgia, and the defendant a citizen of Alabama, the suit was removed by the latter into the circuit court of the United States for the middle district of Alabama. After its removal, and in November, 1887, the latter court allowed Emanuel Lehman, Meyer Lehman, Joseph Goeter, and John W. Durr, composing the firm of Lehman, Durr & Co., and Ignatius Pollak, doing business under the firm name of Pollak & Co., all citizens of New York and Alabama, to make themselves parties defendant to the suit, and they filed pleas. The pleas were to the effect that Crowell did not unlawfully detain the property sued for, as alleged in the complaint; and that it was not at the time of the commencement of the suit, and had not since been, and was not at the time of putting in the pleas, the property of the plaintiffs, but of the defendants pleading. The case was tried before a jury, which rendered a verdict for the defendants; and there was a judgment for them, with costs. The plaintiffs have brought the case here by a writ of error.
The controversy was in fact one between the plaintiffs on the one part, and Lehman, Durr & Co. and Pollak & Co. on the other part. Lehman, Durr & Co. claimed the property under a mortgage executed to them, December 4, 1885, by Samuel S. Belser and Langdon C. Parker, and their wives, to secure a debt of $30,000, with interest, and covering 1 3/4 acres of land in Bullock county, on which was an oil mill, together with the machinery therein, other land in Montgomery county, and certain other personal property. Pollak & Co. claimed under a mortgage executed to them January 2, 1886, to secure a debt of $15,000, and covering land in Montgomery county, the oil-mill land in Bullock county, the improvements thereon and appurtenances belonging thereto, and other personal property. At the time suit was brought against Crowell, the property in question was in his possession as bailee of the mortgagees. The property had been manufactured by the plaintiffs for Belser & Parker under a written contract signed by the latter, and accepted by the former, in the terms set forth in the margin.  At the date of the paper, one of the plaintiffs visited Belser & Parker, and himself wrote the paper, which Belser & Parker signed and delivered to him. No other agreement was made than the one contained in that paper.
By that contract, the plaintiffs obliged themselves (1) to ship to Belser & Parker the machinery named therein; (2) to pay the freight thereon to Mitchell's Station, the place to which it was to be shipped; and (3) to furnish the mechanics to erect the machinery there. Belser & Parker, by the terms of the contract, agreed (1) to furnish all rough labor and the board of the men engaged in the work, and (2) to pay $12,500 for the machinery, namely, $3,000 on the receipt of the bill of lading, $4,750 on November 1, 1885, and $4,750 on March 1, 1886, with interest at 8 per cent. from the date of starting the mill.
There was a great deal of delay in shipping the machinery, and much complaint on the part of Belser & Parker. The building in which the machinery was placed was erected by Belser & Parker after the contract for the machinery was made. It was constructed for the purpose of being used as a cotton-seed oil mill, and the machinery furnished was such as was essential for only such a mill. The machinery was manufactured by the plaintiffs at Atlanta, Ga., and at various times was placed by them on railroad cars at Atlanta, consigned to Belser & Parker at Mitchell's Station, Ala. During the progress of the work, Belser & Parker paid to the plaintiffs $2,500 on their drafts drawn according to the contract, and also paid out for freight and other expenses, which the plaintiffs had agreed to pay, sums amounting to *500. The machinery was in place so that the mill could be operated prior to December 1, 1885; and Belser & Parker commenced operating it in November, 1885. There was some evidence that after December 10, 1885, the plaintiffs supplied some additional machinery, but the evidence did not identify it. The land on which the building stood in which the machinery was placed belonged to Belser & Parker.
On December 4, 1885, the date of the mortgage to Lehman, Durr & Co., Belser & Parker were indebted to that firm in debts which were then due. They obtained from Lehman, Durr & Co. an extension of those debts, and also further advances, making a total indebtedness of $30,000, for which the mortgage was given. It was recorded in the proper office on the 3d of February, 1886, within three months after its execution. On the 2d of January, 1886, the date of the mortgage to Pollak & Co., Belser & Parker owed to Pollak & Co. debts which were past due; and an agreement was then made for their extension, and new advances were made, the whole amounting to $15,000. The mortgage was duly recorded on February 4, 1886.
On the 11th of December, 1885, one of the plaintiffs visited Belser & Parker, and with one of the latter inspected the mill. It was agreed between them that certain additional machinery should be provided, and other portions changed, but what portions does not appear; and that the balance due for the machinery should be settled by three notes, dated December 11, 1885, and signed by Belser & Parker, one for $1,500, with interest at 8 per cent. per annum, due February 1, 1886; a second of like tenor, for $3,500, due March 1, 1886; and a third for $4,633.52, due December 1, 1886. The first one of the three notes read as in the margin,  and the others corresponded mutatis mutandis.
W. A. Gunter and John D. Roquemore, for plaintiffs in error.
[Argument of Counsel from pages 46-48 intentionally omitted]
H. C. Tompkins, for defendants in error.
Mr. Justice BLATCHFORD delivered the opinion of the court.
^1 L. C. Parker. E. B. Gray. S. S. Belser. Parker, Gray and Belser, Dealers in General Merchandise.
Mitchell's Station, Ala., March 28, 1885.
Messrs. E. Van Winkle & Co., Atlanta, Ga.-Gents: You will please ship to us, at Mitchell's Station, Ala., the following oil-mill machinery, to wit, for which we agree to pay you the sum of twelve thousand five hundred dollars, ($12,500.00:)
One set of oil-mill machinery complete, with capacity to work thirty tons of cotton seed per day, as follows:
4 hydraulic presses.
4 steam heaters.
4 linters, feeders, and condensers.
All line and center shafting, all steam and oil pipes, all pulleys, hangers, etc.; one hydraulic pump of six plungers, one oil pump, one cake breaker & cake grinding mill, one sett of crushing rollers, one sett of separating machinery, all elevators and conveyers, three seventy-saw gins, with feeders and condensers; two cotton presses, all shafting for gins and presses, all pulleys complete, all belting but main belt for oil mill, belting for ginhouse not included-this to mean, in fact, all machinery and appurtenances necessary to operate an oil mill and ginhouse of above-described capacity. It is agreed that you are to lay down the mach'y at Mitchell's Sta. and pay all freight and furnish the mechanics to erect the same; we to furnish all rough labor and board of men. We agree to pay you for machinery as follows:
$3,000.00 on receipt of bill of lading.
$4,750.00 (four thousand seven hundred and fifty dollars) on the first day of November ensuing, and like amount, $4,750.00, first day of March ensuing, with interest at 8 per cent. from date of starting mill.
Yours respect'y, &c., &c.,
BELSER & PARKER.
^2 $1,500.00. Pike Road, Ala., Dec. 11th, 1885.
On or before the first day of February, 1886, we promise to pay to E. Van Winkle & Co. or order fifteen hundred & 00-100 dollars, for value received, with interest from date until paid at the rate of eight per cent. per annum, and also all costs of collection. The benefit of any and all homestead or exemption laws is waived as to this note. The above is for purchase money of one cotton-seed oilmill machinery built at Mitchell's Station, Ala., which E. Van Winkle and Co. have this day agreed to sell to Messrs. Belser and Parker, of Pike Road, Ala.; and it is the express condition of the delivering of the said property that the title to the same does not pass from E. Van Winkle & Co. until the purchase money and interest is paid in full.
In testimony whereof ___ have hereunto set ___ hands and seal.
Payable at _____.
BELSER & PARKER. [Seal.]