204 F. 161 | 3rd Cir. | 1913
■ The controversy thereupon took the usual course. The company answered the bill, an examiner was appointed, much testimony was taken, argument was had, and the Circuit Court considered and decided all the questions in controversy. An extended opinion was filed on August 24, 1911, which is reported in 190 Fed. 376, and on the same date the following decree was entered:
“First. That the defendant be ordered and directed to specifically perform its contract with the plaintiff, by delivering to the plaintiff from the date of this decree the output of its washery.
.“Second. That the defendant be enjoined by perpetual injunction from delivering any of the output-of the washery and the Holden dump to any one otlier than the plaintiff.
“Third. That the defendant be and it is hereby required to account to the plaintiff for all moneys advanced by the plaintiff to it under the contract, which Has not already been repaid, together with interest thereon, and that the defendant be required to account to the plaintiff for all dam*163 ages sustained by tbe plaintiff by reason of the defendant’s broach of contract.
“Fourth. That ■>. Fred Schaffer, Esq., be appointed a special examiner to state an account between the parties and report the same to the court.”
“Fourth. That the defendant, the Marian Coal Company, pay to the plaintiff, John \V. Peale, within six months from the date hereof, the sum of thirty-four thousand five hundred thirty-three and 94/100 dollars ($34,598.94), with interest from the 1st day of January, 1912, in full payment and satisfaction of the sum due to the plaintiff, John W. Peale, by the defendant, the Marian Coal Company, on the loan or advancement account, and the damages due by reason of the defendant’s violation of the contract in suit.”
And a final paragraph disposes of the costs. The appeal before us was taken in February, 1912, and, of course, is from the decree of August, 1911, as the decree of March, 1912, had not yet been entered. The motion to dismiss is put upon the ground that, as the August decree was interlocutory, the appeal should have been taken within 30 days; and the company resists the motion on the ground that the August decree was really final, since the master had nothing judicial to do, but was merely required to perform the ministerial labor of computation — the facts and the rules of decision having previously been ascertained by the court, with one or two unimportant exceptions. We think the company’s contention must be sustained. The two lines of authorities on this subject — one stating the general rule, and the other stating the exception — are referred to in Latta v. Kilbourn, 150 U. S. 539, 540, 14 Sup. Ct. 207, 37 L. Ed. 1169:
“It is well settled by the decisions of this court that where the purpose of the suit is to obtain an account, such as that prayed for by the bill in this case and directed by the order of October 27, 188(5, the decree is of such an interlocutory character that no appeal will He therefrom. Beebe v. Russell, 60 U. S. (19 How.) 283, 285, 15 L. Ed. 668; Green v. Fisk, 103 U. S. 518, 26 L. Ed. 486; Keystone Manganese & I. Co. v. Martin, 132 U. S. 91 [10 Sup. Ct. 32] 33 L. Ed. 275; Lodge v. Twell, 135 U. S. 232 [10 Sup. Ct. 745] 34 L. Ed. 153; McGourkey v. Toledo & O. C. R. Co., 146 U. S. 544, 550 [13 Sup. Ct. 170] 36 L. Ed. 1083, 1085. In this last; case the authorities are thoroughly reviewed as to what constitutes a filial decree, and it was laid down as the general rule that if the court made the decree fixing the rights and liabilities of the parties, and thereupon referred the case to a master for a ministerial purpose only, and no further proceedings in court are contemplated, the decree is final, but if it referred the case to him for a judicial purpose, as to state an account between the parties, upon which a further decree is to be entered, the decree is not final.”
Among the early cases that support the exception is Forgay v. Conrad, 47 U. S. (6 How.) 201, 12 L. Ed. 404; but a brief extract
“The object of the law and the interpretation of it by this court is to prevent a case from coining to it from the courts below, in which the whole controversy has not been determined finally, and that the same may be done in this court. We say: ‘In which the whole controversy has not -been determined.’ Wherever it has been, and ministerial duties are only to be performed, though that be to ascertain an amount due, the decree is final.”
See, also, Thomson v. Dean, 74 U. S. (7 Wall.) 342, 19 L. Ed. 94; Winthrop Iron Co. v. Meeker, 109 U. S. 180, 3 Sup. Ct. 111, 27 L. Ed. 898.
An examination of the master’s report shows that his duties were ministerial and not judicial. No doubt he took a little “additional testimony, * * * covering shipments of coal from .the defendant’s washery from December 1, 1910, to September 30, 1911”; but this was the mere presentation of a supplementary statement, and was only intended to bring the account up to the date when the wash-ery ceased operation after the suit was begun. The master’s report leaves no doubt concerning the character of his duties:
“It appears, by an inspection of the opinion of the learned judge already filed in this case, that all the disputed facts, with the exception of two items ($145 and $125), have been determined in favor of the plaintiff, and that the books of account of the treasurer of the defendant, by which the plaintiff proved his case, were correctly kept. (Opinion, páges 18-20.) The two items above mentioned have been practically abandoned by the plaintiff. The defendant did not offer any books of account in evidence. The only accounts offered in evidence were the books of the defendant’s treasurer, supervised by an expert accountant, and the books of the plaintiff, both offered by the plaintiff, and which correspond to the cent. The plaintiff also offered the tonnage figures of the Delaware, Lackawanna & Western Railroad Company, showing shipments by the defendant. These were not disputed. The plaintiff alone offered evidence on the loan account. In view of the opinion of the learned judge, it would be supererogation for the examiner and master to enter into a discussion of the facts, the law applicable thereto, or to report conclusions of law.”
In our opinion the August decree was final for the purpose of appeal, and the motion to dismiss must be refused. .
“Fourth. In case the maturity of the amounts secured by said mortgage is accelerated as herein above provided, because o£ the default of the party of the second part, or in case of the failure of the party of the second part to repay the amount of said loans as hereinbefore provided, or any part thereof, or interest thereon, when due, the party of the first part shall he entitled to a writ of estrepement, or to the appointment of a receiver by any court of competent jurisdiction in foreclosure or .any other proper proceeding; and a writ of scire facias may be issued forthwith on said mortgage and prosecuted to judgment, execution, and sale for the collection of the whole amount of said debt and interest remaining unpaid, together with all fees, costs, and expenses of such proceeding, including an attorney’s commission of three (3) per cent, and all errors in said proceedings, together with all stay of, or exemption from, execution, or extension of time of payment, which may be given by any act or acts of assembly now in force or which may be enacted hereafter, are hereby forever waived and released.”
Abundant care has therefore been taken here and -elsewhere in the agreement to secure “repayment of the moneys to be advanced hereunder, with interest thereon, and due performance of the terms and stipulations of this agreement and of the leases aforesaid, * * * due performance of each being expressly understood to be of the essence of this contract and a material part of the security of the party of the first part” (the plaintiff in this suit). The mortgage contains an express stipulation making the whole sum secured thereby due and payable at once whenever the company shall make default in keeping “each and every of the stipulations of said agreement,” and provides that in such event (and in other contingencies also) a writ of estrepement may issue, or a receiver may be appointed, or a writ of scire facias may issue forthwith, etc. In a word, the agreement takes up four distinct remedies, and makes them more effective in certain directions for the plaintiff’s benefit, or it forestalls controversy by declaring expressly that they shall he applicable. The writ of scire facias may issue forthwith upon the mortgage, this being the usual Pennsylvania procedure upon such an instrument; and, as the company may impair the security, the plaintiff may apply for a writ of estrepement to stay waste, this also being a well-known remedy in Pennsylvania; or he may ask a court of equity to put a receiver into possession of the property; and, still further, if default continue for 30 days, he may enter an amicable action of ejectment in the state court, and proceed immediately to judgment and execution, thus taking summary possession of the premises. These, remedies are certainly more complete than the decree now in question, which does not even make the attempt (futile as such an attempt would be) to compel the company to operate the wash cry. It simply requires the company to deliver the product of the wasliery to the plaintiff, and forbids delivery to any one else. If there should be no product, of course, the decree can do no more than maintain an expectant attitude. No doubt this is an effort to do indirectly what could not be done directly, namely, to compel the company to operate the washery; and perhaps we need not be sur
The present situation cannot be approved. We affirm so much of the decree as is contained in the third and fourth paragraphs, but we reverse the rest, with instructions also to set aside the first two paragraphs of the March decree. Each party to pay one-half the .costs of this appeal.
This order is, of course, without prejudice to the plaintiff’s right to use such remedies as he may be entitled to employ in any court of competent jurisdiction.