WIJr,LIAMS
V. MORRISON.
171
WILLIAMS and others v. MORRISON and others. (Oirc'Uit Go'Urt; E. D. Mi88ou'l'i, E. D. Septembe;r 22,1887.) 1. ,I
An action of replevin wfisbrought in a state court to recover a quantity of paving .stone alleged to have' been wrongfully taken: from plaintiff's quarry, .; the property was seized by the sheriff. Pending this action, the defend. ant. brought suit in the United States circuit court for the recovery of the . property so seized, together with other stone that had been quarried subsequent to the seizure. Held, that the United States. court had no power to deter;.minethe rights.ofthe parties to the property seized, I,lnder process of the state coUrt, .as the same question was before the state court; and that if, through the '. fQu.It of Pl.aintiff, the other ;pr.operty sought to be recovered had become so '; mi;xed ,with th"t seized by the slleriff tb,at the two lots could not be distinguished, none of the property could be recovered.! 2. LICENSE-REVOCATION-0R,ALLIPENSE TO QUARRY STONE-POSSESSION STONE' AFTER LICENSE REVOKED. ' OF
COURTS-CONFLIC'I.' OF STATE AND FEDERAL JURISDICTION-REPLEVIN-CON' ;FUSION OF GOODS.
.. An.oral.license to ta\l:e out stone from a quarfY for a tllrm of years is·sub· ject to, revocation at any time, upon notice to the licenaee, and he is not enti· tIed to possession of the stpne taken out subsequent thereto. ,." )
,
Cha'8. A. Da'lJ'l:g, Goo. A. OastMnan, and a. D.' Yancey, for plaintiffs. M. E8te8 and Dinning k Byrnes, for defendants· . THAYER, J., (charging jury.) The case that you were engaged in trying all pf yesterday is what is known as an action of replevin. The action involves the question whether the plaintiffs in this case or the defendants were entitled t.o the possession of 8,000 or more granite paving on April 23, 1886, when this suit was brought. It is not denied that tpll defendants were in possession of the granite blocks in question when thi;g suit was brought; and it ,is not denied that they were taken by tpe United States marshal. under an order of delivery in this case, from the possession of the defendants, and that they were delivered to the plaintiffs, and are now in, plaintiffs' possession. The question which you will have to determine is whether the plaintiffs shan retain in whole or in part the granite blocks so .delivered to them by the marshal. or shall in whole or in pa.rt restore them to the defendants. That is the general question to be settled, and the settlement of it depends upon the question who was the owner of those granite blocks on April 23, , 1886, when this suit was brol,lght? Now,the facts which plaintiffs rely upon to I!lupport their title are, in substance, as follows: rr:hey claim tha:t in November or December, 1885, Mr. Lorenz, acting in behalfof hiIpself and Morrison, gave them verbal permission to take immediate possession of the granite quarry and work iUor two years, paying therefor $1. 50 per 1,000 Jor all granite blocks taken out ready for shipment. On the other the defendants deny 1 As. to the principles wbieb in cases of conflict between courts of concurrent jurisdiction,'see Senior v. Pier;e, 31 Fed. Rep. 625; Melvin v. Robinson, Id.634j Kohl: v. Ryan, Id: 636:
v.32F.no.3-12
178 that any such oral license or permission to work the quarry was given. They claim·,thefact' to be that Williams inadeapplicatioJito them for a two-years lease of the quarry; that Lorenz and Williams came to an oral agreement :asto some of the of the 'lea:-se;thatit was,artanged that Lqrenz should prepare a written form of lease, and mail it to Williams l&'approva], and, if 'satisfactory,it was then to by all of thEl pa.,rt.,ics. defendant!) ,say that a form of lease was prepared by Lorenz', .llil'ld .mailed to WHliiuilsinaccordance .with this understanding; tnat, .. only sigPEld. by Lor.enz; and that . for nearly .t}Vo:months thereafter ,they did from Williams rabutthll;t the fora lallenthr011gh;tlley leased, theqQ.arJ:Y}o other partles. I only aiw,to;state the substance, of the respective theorIes of the parties; itisf6r you to recollect, the on 'point"as it was given in the '. ," ."." . , ". . " ' . Now, gentlemen, your first duty will be to determme fro;m the test!Itll'lnyw;}lich: of'the twotheorie$,'laststated iS06rrect.. In other words, y'bu must determine wliich PMty'tells ,the the Williams on the one side, or Morrison and Lorenz on the other. Asthe e'idelfqe,;You t®. plaintia:s, (that is to say, if you credit the oral hgellse,) then the court instructs' you that all thE; grani'teblocklidakell out 'uiJder such ,an oral license, and before it was duly revoked .py the defendal1ts, beldrigedtothe'plaintiffs lh thiS' and it follows that youryerdict should pe/or the, plaintiffs for so many of the gra-hiie' blocks, delivered to. tpem :l>ylthe' marshal. writ in this case,as taken out .tinder such oral' hcenBe before It lIad. been revoked. .It .will be 'for yO,tl nunibef of the blocks so out, if liny. on t,h.e other liimd,' the theory of the case, and'find tbat rlooral hcense to take out rock was ever granted? and' that the for, th'e' quarrlwas and' delivby all the6wners of theproperty.as mtended at of the nethen as. a matter oflaw, that J?laintifts .had no rIght at any time tota,ke posseSSIOn of the quarry and take out rock, i and that.. hi . 'so they had a valid lease; or any oral 'license, they abted at tJieirperil;'and have no right to any o'f the granite ,blocks in controversy, anqy?u find. ", .' ' , . Furthermore, gentlemen, If you beheve that there was an oral hcen::;e given at one time to take out rock, the court instructS you that such oral license was drsuch character"that it might be revoked at any 'time by the defendants by 'giving the' plaintiffs personal notice that the license was notifying them 'to''leave the premises; ul}d therefore, if it appears from the testimony that there was an oral license, but ',a subsequent revocation of the sante',a:rid that plaintiffs continued 'to ta'lteollt robk In opposition to the 0'1 the defendants, then plaintifls have no right to the possession of the rock taken ou't aftedhe revocation btthe lip¢nae, anQ' you should so find. If you find that there was an oral license' at one time, then you must further
179
determine if there waF)ltsubsequent revocation of. the same, and the date of-the revocation. and whether plaintiff a,fter the revo,cation took out rock, and how many, if any; <;>f the blocks of granite now in «ontroversywere ta:ken out under sueh circumstances,and for that reason belonged to the defendants. There is another feature oithe case to which I must also direct your attention. It appellrsfroIllthe testimony, and of this there is no disday of April, 1886, ,Lorenz and Morputewhatever, that on rison sued out a writ,of repleVin in the circuit oourt of Wayne county, and that under that writ, on the, ninth day of April, 1886, oertainof [email protected] blocks iIi controversy in were taken out of the plaintiffs' pOElsession, and delivered to that is to say, they wetedelivered by the i)heriff of Wayne county' to Morrison and Lorenz. It will be for you to determine, as a question of flltct, how many of the blockll' of in, controversy in case were the same blocksofgra,uite that were, so taken by the sheriff of Wayne county, a.nd delivered to thedefendanta on April 9. 1886. It appears very clearly, and on this poin.t you will have; no room for doubh 1 take it, that all of the granite blocks at the quar:ry, on April 9, 1886, ,were so taken anq delivered by the sheriff of Wayne county to the defendants; but, you the nearly as you can, how many tIfe quarry at that time, that is, April 9, 1886, and blocks there how Il?-any plocks ',were qua.rried by the plaintiffs between that date and April 28, 1886,whim the {parshal of tIfiB court seized all the blocks at the qU/l.rry, mchiding. tho!le tak;en by the sheriff, and turned the whole over to the plaintiffs, that is, to Williams and James. ,Now, gentlElIn en; the suit in the' Wayne county circuit court was a suit that was' pendingiin 'the state court, and was 'undetermined when this action was brought in the federal court, on Apri124, 1886, and for that reaSol1'll.ll Of the blocks taklen by the marshal of this court, on April 28, 1886, which were the same that had been seized by the sheriff on April 9, 1886, under the. writ of theWa.yne county circuit court, mtlstbe restored to the defendants by your verdict. Therigh t to those blocks that were seized' by the sheriff of Wayne county, Missouri. must be- determin(3d and adjudicated, as between the to this suit, by the state court in which tllat replevin suit is now pending, and not by this court, so that in no event can you find in plaintiffs'favor for all the blocks which the marshal seized under the writ in this case. You must in any event find in the defendants' favor for the blocks delivered to.them by the sheriff' on April 9 t 18&6, stating in your verqict the number qf blocks and their value., . .. . . There .is,yet another feature. of this case to be allqded to, and It seems that after. the sheriff seized all the ',blocks at the quarry on April 9; 1886, they were left there on the I§round at the quarry by the deplaintiffswenton until the twenty,eightb of April, 1886, granitepavingJblocks. No:v, frere is the blocks tak,en out after April'H, 1886, were lllid by,themselve.sj so that cOllld be
180
FEDERAL
from those seized by the sheriff, or whflther they were so mixed and mingled by the plaintiffs with the blocks taken by the sheriff that thr, two lots could Iiotbe distinguished, the one from the other. You will have to determine that issue from the evidence before YOu; and if it appears from thE! evidence, and you so find, that plaintiffs 30 mixed the rock taken out;'by them after April 9, 1886, with the rocks seized by the sheriff of Wayne county, that the two lots could not be distinguished when the marshal arrived, then the plaintiffs had no right under the process of this court to' take any of the rock 'found at the quarry on April 28, 1886, whether they were taken out prior to or subsequent to April 9, 1886, and you will have to so find. This llist conclullion which 1 have stated ,to you is the resultaf a rule of law that, if a mitn wrongfully mixes his own goods with like goods of another person, so that they cannot be distinguished, the wrong-doer must lose his property. With these general directions you may take the case with the following fonns of verdict, which have been prepared fot:you by the court: If under the evidence and the instructions which '1 have just given to you, you find that the defendants are entitled! to have all of the granite blocks taken by the :marshal restored to them, your verdict will be in this form: ' "John H. Williams and other/vB. Jasper N. Morrison and others. "We, the jury, find that the defenGlants are entitled to the possession of all of the granite blocks described iuNi6 petition in this case whioh were taken from their possession on April 28. 1886. under the order of delivery in this case, and we assess the value of said blocks at the sum ofi - '- - dollars." , And in case you adopt this form of verdict, you will have to find the value of the granite blooks, and yop will assess the damages for· the taking and detention of the same at Tone cent. There is no evidence here warranting you in giving any substantial damages in case you find that the defendants are entitled to have all these granite blocks restored to them. There is no evidence here entitling you to give the defendants any damages other than nominal damages.' You will simply state in your verdict the value of the granite blocks that are to be restored, for the further pUTposes of the suit., If under the evidence and instructions you find tha.t the plaintiffs are entitled to retain a portion of the blocks. now in their possession, which were seized by the marshal and delivered to them, your verdict will be as follows:, "John H. Williams ana othe1·svs. Jasper N. Morrison and others. "We, the jury, find the p'laintiffs are entitled to the possession of - 'granite blocks seized by the United States marshal, under the order of delivery in this case, on April 28. 1886; being a part of those described in the petition in this case, and we assess the plaintiffs' damages for the detention of the same by the ll'efendants at one cent; and.we furthermore find that the defflndants are entitled to all the residue of said granite blocks described in the petition berein, beinK the same which were seized by the marshal under the order of delivery, that is to say, - - granite blocks, and we assess the value of those granite blocks to which the defendants are entitled at the sum
GOULD 'V. MULLANPHY PLANING-MILL CO.
181
of - - - dollars, [givfng the amount,] and we assess the defendants' damages for the taking and detention thereof at one cent." You will take these two forms of verdict with you to your room, and use them in 'making up your verdict.
GOULD 'V. MULLANPHY PLANING-MILL
Co.
Court, E. D. Mis8ouri, E. D. September 28, 1887.) COURTS'- CONFLICTING STATE. AND FEDERAL JURISDICTION BENEFIT OF' CREDITOltB. ASSIGNMENT FOR
Pending proceedings in the state court under an assignment for the benefit of creditors, a creditor who was not a party to such. Proceedings, and .who made, brought was a non-resident of the state in which the assignment suit in the United States circuit court to determine the validity of a deM of trust made prior to the assignment, and covering a large amount of the assets assigned. The assignee had entered upon thll duties of his trust, but had taken no steps to contest the deed. Held that, as the question of the validity of the deed was one which was so entirely separate and distinct from those questions involved in the general proceedings that it cQul!i,properlybe eli/ninated therefrom without prejudice to such proceedings, it was one which the United States court had jurisdiction to determine.
On: Plea of Jurisdiction. Charles B. Stark, for complainant. WiUiam R. Walker. for respondents. MILLER, J., (orally.) In the case of Gould v. The Mullanphy PlaningMill Company, which was argued before us on Monday, we have come to the conclusion that the plea to the bill in the case 'is insufficient. The argument was that the plea set up the pendency of a proceeding in one of the state courts, which involved the same subject-matter that is in controversy in the present bill brought by Mr. Gould. These questions to a class of CRses which arise under the come up very often in laws of the state, for the purpose of administering estates of decedents, and administering assignments, and, in general terms, cases in which a fund is to be administered in a court of law of the state, and to sonie extent that is the case here. An assignment was made by the planing.mill company, and the assignee undertakes to administer the trust imposed upon him by the assignment, and although it is not alleged that he has filed an inventory, he has given bond, and it is ·probable that he has entered upon the trust devolving upon him by the assignment; But as far :lsthe case shows he has been. inclined to recognize the validity and existence of a prior deed of trust which covers a very large amount of the assets assigned to him. As he has not taken any steps to contest that deed of trust. and as this present bill, filed by Mr. Gould, one of the creditors interested under the assignment, does contest it, and declares H to be void or invalid for reasons set out ill the bill, it would seem that
