270 F. 930 | 6th Cir. | 1921
This proceeding is an outgrowth of the main suit between the parties hereto, in which a judgment for damages in favor of plaintiff in error, for alleged breach of a contract for river carriage of coal, was affirmed by this court. 257 Fed. 890, 169 C. C. A. 40. The present writ is brought to review the action of the District Court in refusing to allow plaintiff compensation for the use of his barges, in which defendant’s coal (then in the barges) was seized by the marshal by virtue of a writ of attachment, and was by that officer kept stored therein during the interval between the time of seizure of the coal (October 31, 1917) and its sale (December 4, 1917). The entire gross proceeds of the sale ($6,600) were placed by the marshal in the registry of the court; the order of sale having re
Plaintiff first asked that he be allowed, as part of his cost's of suit, the asserted reasonable rental value of the barges — the marshal to be required to include the same in the taxable costs. This motion was denied,- for the reasons, first, that the motion came too late, because not made at the term in which the judgment for damages was entered; and, second that the barge rental sought was really damages rather than costs, and that whatever recovery plaintiff was entitled to on that account had been included in the judgment for damages rendered in the main suit. Plaintiff then moved that in distributing the proceeds of sale under the attachment, then in the registry of the court, there be first paid to plaintiff, as an expense thereof, the reasonable rental value referred to. This motion was overruled, without statement of reasons therefor.
As to both motions: Plaintiff had shown no lack of diligence. The marshal’s return to the writ of attachment showed the levy and the placing of the seized property in charge of a watchman. He returned, “Fees, $16.48,” but without mention of expenses, which mani'festly, as applied to the situation here, related only to the future. Pending the execution of the order of sale, plaintiff presented to the marshal a written claim for barge rental at the rate of $10 a day for each barge from the date of levy, stating his expectation that this rental would be paid “out of the proceeds of the sale of the coal.” The court’s order for the sale gave to the purchaser thereunder a “rea
The entry of the judgment of the District Court, which in terms awarded plaintiff costs, gave each party leave to file bill of exceptions within a certain period after the close of that term, and reserved full jurisdiction respecting the allowance of hills of exceptions. Writ of error from this court was taken out 10 days later. This court affirmed the judgment below on April 11, 1919; mandate, however, being stayed at defendant’s request to allow application to the Supreme Court for writ of certiorari, and the stay was still operative when defendant filed bill in the court below to restrain collection of the judgment. This court, on January 6, 1920, reversed the order of the District Court which allowed temporary injunction, and directed the dismissal of the bill (262 Red. 465, 472), later staying mandate pending application to the Supreme Court for writ of certiorari, which was denied by that court on March 22, 1920. 252 U. S. 582, 40 Sup. Ct. 393, 64 L. Ed. 727. On the next day plaintiff herein, in writing, reminded the marshal of the former claim made for rental, and requested payment out of the proceeds of the sale of the coal. This not having been done, the motion for. recovery of such rental as costs was entered four days later. The motion was denied on June 29th; the motion for distribution, before referred to,, was entered on July 26th, and was denied August 16th then next. It thus appears that there was no unreasonable delay on plaintiff’s part in seeking recovery of barge rentals before', the issue of the first writ of error from this court, inasmuch as the question of jurisdiction in the District Court was involved therein (257 Fed. at page 892, 169 C. C. A. 40), and lack of jurisdiction would have defeated the right to rental recovery. The same considerations applied pending the suit to restrain collection of the judgment. Plaintiff has plainly exercised a high degree of diligence in the assertion of claim to rentals.
As already seen, the court by its order of sale expressly reserved control over the disposition of the fund, and that control has never ceased, the entire gross proceeds being still in the custody of the court for distribution. We see no reason, on either principle or authority, why the expenses of storage may not properly be allowed at any time previous to actual distribution and as incident thereto, by analogy to the practice in receivership and assignment cases. Sec G. C. Ohio, § 11842; Owens v. Ramsdell, 33 Ohio St. 439; Carpenter v. Dick, 41 Ohio St. 295.
As the case was submitted, the statements in the petition regarding the need of the barges and plaintiff’s inability to use them otherwise than in performing the contract in question were merely incidental to
“He was getting $10 per day for each barge containing the coal attached on the order of the court beginning December 4th.”
Whether or not defendant then actually knew that plaintiff was claiming rentals from the marshal, the record was such as to permit defendant to claim, and the jury to find, that plaintiff should be charged with such rentals. If defendant failed to make such claim because not to its interest to do so, or for any other reason, it gains nothing thereby. In our opinion the recovery must be held, as matter of law, not to have included the rentals which accrued not only after performance by plaintiff was begun, but after actual performance had ceased on account of defendant’s alleged refusal to permit further performance on plaintiff’s part. The size of the verdict, which was less than one-eighth of the amount plaintiff claimed, is not out of harmony with this conclusion. •
5. It follows that the court below was in error in so dismissing plaintiff’s claim for compensation. Its action is accordingly reversed, and the record remanded, with directions to ascertain, under appropriate evidence, the amount of reasonable compensation which plaintiff should receive for the use of the barges, and to allow the same to him in connection with the distribution of the proceeds of the sale of the attached coal.
Presumably tbis motion also was denied for supposed lack of legal right in plaintiff. The record does not indicate that any discretion was exercised or that the “reasonable rental value of the barges” was passed upon.
It awarded “the amount of the verdict * * * with interest * * * and costs,” without mention of amount of costs, and without blank for the insertion thereof.