'. '. 'LOCEE;cT .v; .aUMBOlJGlL i
LoCKETT et' al· .,.RUMBOUGIf
et al., .
(Cf.rcuit Coure, W. D. North CarciUna" ,November, 18811.)
lIiattachment and garnishment proceedings, it'ai>pllared that thegarnlsliee: hacl in his hands, received from defendant, in the garnishee claimed no divid.:ual interest, aJld which he offered to PllY tothe pall1lY adjudged t4ereto. Defendant's 'wife interpleadlld, and cliJ.inied that the 'garnishee received'the-fund under an express trust for her henefit; . Plaintiffs claimed a lien by-the proceedings on the fund, and alleged that defendant's ,attempted (lisPllsit\on of it for his wife's henefit was in frllud of creditors. It was not alleged that the gar!. knew of suoh'fraud. Held,that the to determine the of the the
Moore Merrick, P. A. Cummings, and F. A. StmdleiJ, Cor Joseph Adams andT., H. Cobb, for defendants.
. DICK, J. This case is <fne of a number.oC similar actions brought by creditors of. the Warm Springs Company, and the order herein made extEindsto all the cases now pending in this court. .These several actiPIls were ibrought against the defendants .lor debts incurred by Springs Company, and judgments have been rendered for the amounts of such, indebtedness. In the course of proceedings the plaintiffs warrantso! attachment against the property: of Joseph Pettyjohn, upon affidavits alleging that he had Ilssignedand disposed of his property with intent to defraud his creditors. . These warrants pf' attachment were duly served on the respondent M.,E. Carter, and he was summoned as nishee to appear at court andansw.<er .upon oath as to what eff-ects .he ha<i in, his possession belonging. to the defendant. PettyjQlm. in his answer, set forth the amount of money wbiah from Pettyjohn, and the facts and cir.cfimsta,nces which ltttended.the transaction, and expressed· his readiness to dispose' of the. money ill.. his hands under the order ofthe court; and prayed'Jor indemnity tectionagainst any pel'8onalliability, in law Or equity, tQ:anyofthe rival claimants. Upon proper application. Mrs., LoUisa B. PettY30hn and her trustee, A. a.Pannell, were allowed ta interplead, and by affi<.lavits set up their claim to the money attached, in the manner and Upon the conditions 'provided by the laws of the state. filed by the plaintiffs, andiss-ues of fapt were :framedJor a trial byjul'Y. Among other things, the pleadings show the following aJ;1d allegations in relation to the fund in controversy:. The defendants·J()\o seph Pettyjohn and his wife, Louisa ,B. Pettyjohn, purchased a 9ne-.third interest in the property of the Warm Springs Company, Ilnde:x:ecutEld a mortgage to secure the payment of a balance of purchase mpney, and expressly stipulated that their interest in any insurance lJPOIl h,otel should be paid in discharge of such indebtedness;, The: bQtelwllS stroyed by fire" and Pettyjohn declined to sign the proof of, aecount of somE!, difficulty which hEl and:&U41s,ua.4
by the insuranoe companies refused to pay unless such proof was him. A compromise was made :oy the partners, and Rumbough and Rollins agreed to settle all disputes and difficulties, and pay to Pettyjohn the sum of $2.500 upon his executing a deed of quitclaim to all interest in the Warm Springs Company. The insurance was adjusted and settled un(1erthis compromise, and pettyjohn executed a power of attorney to M. E. Carter, to J:eceive the ,agreed sum of $2,500, and pay the the estate of Mrs. Louisa B. Pettymoney A. E). Pannell, john, claiming that the insurance money paid on the hotel property belonged to hia,lUtid wife. , At this term of the court the,issues of fact which had been prepared cam-e on for trial, -and a jury was duly impanelled. Upon hearing the pleadings and the argument of counsel, I was of the opinion that the case involved eq-qitable elements that could not be adequately adjusted and determined in an 'actionaPlaw in this court. An order was made to withdraw a juror, and to suspend the further proceedings in the action at law until all equitable questions and rights were adjusted and deterriJined in aauit in equity 'A .further orl1erwas made directing the garnish'Eie, M.E. Carter, to hold the fund in his hands subject to the order ofthe'conrt,ll.nd t'o file a bill of interpleader on the equity side of this court, m'dking, all the Claimants of the fund -parties defendant, and in to the garnishment. . I "I have filedthlS wlltten'oplDloQ lD order to set forth the reasons WhICh induced ,me. to 'adopt the' of procedure which I have ordered in this case. .' The'pleadings showl that the garnishee, M. E.. Carter, has in hIS hands funds' which are claimed under separate and distinct titles by fhe' contending parties in these proceedings. He claims no individual interest in the fund, and there is no allegation or suggestion that he had knowledge of/or in ,any manner par,ticipated in, the fraud alleged against the defendant Pettyjohn; and he has offered to bring the money into court, or to hold the same, and pay it over to the parties who may be ad'judged ,to be entitled. .The plaintiffs claim a legal lien on the fund acquire'd by their proceedings in attachment against the property of the they are able to show that he is defendant&ttyJohn, and they lnsolvent,aridfhat his attempted disposition of the same for the benefit of'his wife' isfraud1.l1ent, 'as it was 'done with the intent to hinder and 'delay hiB creditors. The inte'rplieader Louisa B. Pettyjohn insists that the fund in controversy came into the hands of the garnishee under the po'Werof attbrneyof Joseph Pettyjohfi, and was the insurance money due upon her in the hotel; and that the gallnishee received theti:lOney under' :an express trust tHat he would pay over the same to her trustee, 'A.S. Pannell, Jorher'lloleand separate . i' 'Theclairn of the plaintiffs is legnlj that of the interpleaders is equitable., In suchs/base there can ba rio itlterpleader'properly awarded and aeterminedatl Inwin this Cburt,whera equitable titles and rights can and disposed of under its jurisdiction in chancery. only be 'The principles of law and equity: which 1 have briefly announced are by 2 Story,. Eq. 'Jur;! §813,and,by many decisions of
ROBINSON tl. BROOKS.
the United States'supreme court. The course which I have adopted will enable the court of equity to fully hear and determine the rights of the contesting claimants, and to afford the garnishee the relief to which he may be entitled under his bill of interpleader
(Circuit Oourt;W D. Mi880W1i, O. D. November 19,1889.)
Plaintiffs received fr,om defendants an order to ship theIQ, a to be used in threshing, "at once, or as soon as possible, " for whicli defenda"nts were to pay upon its arrival, and were notified that the' threshing season The machine at that time was at a point but 28 miles from its destination, a letter from plRintiffs to the railroad agent at that point should have reached hUn in two days, and there was a daily freight train' between the two, points. One week,'after they received the order, plaintiffs were notified that the had not reached defendants, and that the season was nearly-over. The order from plaintiffs to the railroad agent at the placewbere the machine was, to ship it to defendants, reached himt.he next day, but defendants did notreoeive the machine until four days ",fter 'that. that plaintiffs failed to comply with their bonti:actin regard to the time of shipment, their delay being unreasonable.
Co8grove &- John8on, for plaintiff. Draffin &- Williams, for defendants. PHILIPS, J. This is, an action to recover the purchase price, of a threshing-machine. The facts are substantially as follows: The plaintiffs are manufacturers at Richmond, Ind., under the firm name of RObinson & Co., of traction-engines with designated equipments for threshing out grain. ' In June, 1886, the defendant John Mackler was the local agent of plaintiffs in and about Cooper county, Mo., for the sale of said machines. In the forepart of that month he obtained from one D. P. Weathers an order on plaintiffs for the machine in.. controversy. The Ind., machine waS shipped abou,t the 21st of that month ,from to said Weathers, but the plaintiffs Were named as consigneeS. On the 28th day of June, Mackler wrote plaintiffs from Pilot Grove, Cooper them that Weathers bad failed to comply with county, Mo., his contract and take the machine, and proposed to store it for plaintiffs if tbey would aqvance the freight charges thereon. which tbe'vendee by his contract was to pay. It does not appear fromtbe evidencewIlether the machine Wll-S then at Sedalia; for Mackler bimself, as appears from his letter, did not know wbere it was. Mackler also suggested in this letter of the 28th of.June tbat be thought within ten days he could find another buyer for the machine. On receipt of this letter, plaintiffs notified Mackler that they expected Weathers to comply with 'his oontract, and take the machine. On the 30th day of June, Mackler wrote plainhe pad bappily solved the difficulty by finding anetherpurcbaSer tiffs