122 F. 390 | 8th Cir. | 1903
R. J. MacKenzie, William MacKenzie, and Donald D. Mann, doing business as partners under the firm name of MacKenzie, Mann & Co., the appellees, filed a bill against Thomas L. Jones and Thomas Eawson, doing business as partners under the firm name of Jones & Lawson, and against Jesse Danley and George Bader, the appellants, setting forth the following grounds for equitable relief, namely: That prior to September i, 1899, the firm of MacKenzie, Mann & Co. were in possession of about 18,000 railroad ties, which the firm needed to complete a section, about 40 miles in length, of the Minnesota & Manitoba Railroad, in the county of Roseau, in the northern part of the state of Minnesota, which said firm was engaged in building; that these ties had been purchased from one Robert Rogers and had been paid for prior to September 1, 1899, when delivered to the complainants by said Rogers; that said ties were either wholly or in part cut by one G. C. Oaks under a contract with Rogers, and had been paid for by said Rogers, and had been delivered to him at certain points on the Rainy Lake, from whence they were towed and delivered by said Rogers to the complainants, as aforesaid, prior to September 1, 1899, who had caused them, when delivered, to be piled upon the right of way of the railroad which the complainants were engaged in building. The bill further averred that Oaks, who had cut the ties and delivered them to Rogers, on September 18, 1899, executed and delivered to Sjoberg Bros., a partnership doing business in Roseau county, Minn., a chattel mortgage, whereby he undertook to convey the aforesaid ties to Sjoberg Bros, as security for an indebtedness due from him to said firm; that Sjoberg Bros, caused said chattel mortgage to be foreclosed, and at the sale thereunder purchased said ties; that immediately thereafter Sjoberg Bros, pretended to sell and convey the ties to the defendants Jones & Eawson for a consideration of $1,050; that Jones & Eawson never took possession of the ties; that
The principal question which arises upon the record, as we view it, is whether the case is one which entitled the complainants to equitable relief. If the complainants had been in actual possession of the ties when the action was instituted, as the bill averred, it may be conceded, though not decided, that the facts alleged might be held sufficient to warrant the interposition of a court of equity, since it was alleged that great injury would result to the complainants if the section of the railroad through Roseau county was not completed prior to the winter of 1899-1900; that no other ties were readily available wherewith to construct that part of the road before the work would be arrested by the approach of winter; and that the acts of the defendants in arresting and threatening the arrest of the complainants’ servants and agents had in fact intimidated them to such an extent that they would not handle the ties, or attempt to remove them or place them in the track. These allegations, together with the allegation that the ties had been delivered to the complainants, and that they had paid for the same in full, of which latter fact there was considerable proof, might possibly be regarded as sufficient to justify a court of equity in affording relief on the ground that the acts of the defendants were wrongful, and liable to occasion irreparable injury, as well as breaches of the peace, if both parties were left at liberty to assert their respective claims to the ties by force and with the strong hand. ' It is obvious, however,
We turn, therefore, to consider the question whether the complainants were in possession of the ties on October 2, 1900, when they filed their bill of complaint; The facts pertaining to the decision of this question are these: After the ties had been cut by Oaks and his subcontractors, pursuant to an agreement with Rogers to supply him with 75,000 ties, the ties now in controversy were either towed or rafted from the place where they had been cut to a point contiguous to the railroad track where they were to be placed. They were piled between the railroad track and a river down which they had been towed or floated, and were piled on the north side of the right of way, but mostly outside of it, and at least five or six hundred feet from the track, as it was eventually laid. They were so piled near the right of way some time in the summer or early fall of the year 1899. They were never inspected by any one, although the contract between Oaks and Rogers, in pursuance of which they had been cut, provided that they were to be paid for “when ties are inspected on right of way.” At and prior to the filing of the bill, a controversy seems to have existed between Oaks and Rogers as to
In view of these facts, we are constrained to conclude and find that, when the bill was filed by the complainants, they did not have any such possession of the property in controversy as entitled them to appeal to a court of equity for the protection of that possession against the alleged wrongful acts of the defendants, and that was the sole ground on which they could seek the aid of a court of chancery. The learned judge before whom the case was tried below
To insure the defendants below their constitutional right to have the title which they assert tried to a jury, we think that the decree below should be reversed and annulled, with a direction to the lower court to dismiss the bill, and that such dismissal be entered without prejudice to the right of the defendants below to bring an action against the complainants for the conversion of the ties. It is so ordered.
1. See Equity, vol. 19, Cent. Dig. § 154.