85 W. Va. 129 | W. Va. | 1919
In a suit by creditors of McQuay the principal question presented by the appeal of the Laurel River Lumber Company is whether as alleged in the bill and denied in the answer but decreed against appellant, it obtained from McQuay a preference in the sum of $2,094.77, or in any sum, rendered void as such by section 2, chapter 74 of the Code¡
The record shows that the alleged preferences, aggregating $2,094.77 and decreed to the special receivers, consisted: first, of a check of the Reese-Sheriff Lumber Company, dated March 6, 1915, payable to appellant, for $500.00; second, of three items, one of May 28, 1915, for $96.74, one.of June 15, 1915, for $196, and the other of September 11, 1915, for $15.06, proceeds of the sale of certain lots of lumber; third, the sum of $1,286.97, the value of certain lumber turned over to appellant, through McQuay, by the Reese-Sheriff Lumber Company, all ante-dating the institution of the plaintiffs’ suit.
The main contention of the appellant is that the money so paid and the lumber turned over by the Reese-Sheriff Lumber Company, though the lumber was purchased by that company from McQuay, was at the time of such payments and delivery of the lumber to appellant the money and property of the Reese-Sheriff Lumber Company and not of McQuay, and that plaintiffs and the other creditors of McQuay have no right to pursue the money and property so received by appellant into its hands as unlawful preferences.
The bases of appellant’s claim is: first, that by contract in writing between McQuay and the Reese-Sheriff Lumber Company, made September 15, 1914, and recorded in the county clerk’s office November 23, 1914, McQuay, as party of the first part, agreed to sell and did sell, and the Reese-Sheriff. Lumber
Another part of the agreement and one relied on to support the finding of the commissioner and the decree complained of, is that the prices agreed upon were f. o. b. cars at Hendricks, West Virginia, on the Western Maryland Railroad, implying, if not stipulating, as it is contended, that the title to the lumber should not pass to the purchaser until delivered on board ears at Hendricks. But a subsequent paragraph of the contract and one relied on to show the intention of the parties to pass title earlier, is the agreement on the part of the lumber company to make an advancement of $8.00 per thousand feet by its notes on or about the fifteenth of each month for all lumber manufactured and put on sticks the previous month, of the various kinds set forth, the same to be marked up as the property of the lumber company as per their brand, the lumber to be shipped out as fast as good shipping conditions would permit, the balance after deducting the $8.00 per thousand feet advanced to be made on the regular terms of cash less 2% discount.
Another provision of the contract cited in support of the decree and the construction of the contract by appellees is that McQuay agreed to take out a policy of life insurance for $5,000.00 in favor of the lumber company to be held as additional collateral security to cover said advancements.
The commissioner to whom the cause was referred to state the account was of opinion that this contract did not vest title to any of the lumber contracted for until delivery f. o. b. cars at Hendricks, and that although the payments in money and the lumber made to appellant represented lumber actually manufactured and put on stick and branded as provided in the contract, and paid, not by McQuay, but by the Reese-Sheriff Lumber Company, nevertheless the lumber was not the property of the lumber company but of McQuay, wherefore a preference in favor of appellant, voidable as such by the statute, and the
We can not agree with the court and commissioner in their construction o'f the contract. In our opinion it was the. manifest purpose of the parties* that the title to the lumber was to pass to the purchaser as and when it was put on stick and branded as stipulated. What else could the parties have intended in so disposing of the lumber and providing for payment by advancements ? ‘ How else was the purchaser to be protected in its advancements except as provided in the contract? When by the terms of the contract the parties make or manifest their intentions to pass title before delivery, their intentions must be allowed to govern; so held in the recent case of Poling v. Hoffman 84 W. Va. 199, 99, S. E. 415; Thomas v. Lewis, Hubbard & Co. et al., 79 W. Va. 138; Lynch v. Merrill, 72 W. Va. 514, 516; Hood v. Bloch Bros., 29 W. Va. 244; Moore v. Patchin, 71 W. Va. 192. That the purchaser had fully complied with its contract at the time of the payments and delivery of the lumber to appellant is not questioned. So much as to the location of the title to the lumber when disposed of to appellant.
The facts and circumstances attending the payments of money and delivery of lumber to appellant are these. McQuay’s mill was located on the private railroad of appellant, and he and the Beese-Sheriff Lumber Company had no way of getting the lumber to market except over this private railroad. McQuay in his operations had incurred a large indebtedness to appellant for supplies for his men, and at this stage of his account, appellant gave notice to McQuay and the Beese-Sheriff Lumber Company that it would not haul out any more of the lumber until its account was paid or secured to be paid. There was then quite a large quantity of the lumber on the mill yard branded as the lumber of the purchaser. Desiring to remove this lumber, the Beese-Sheriff Lumber Company, through a representative present on the ground, at first agreed to settle appellant’s account against McQuay with its notes; but after consideration, instead of making its notes as agreed, it sent appellant its cheek for $500.00 and directed McQuay, on condition that appellant would allow the six car loads of lumber
Our conclusion is to reverse the decree in so far as it adjudges against appellant the sum of $2,430.59 with interest, as .an unlawful preference, and as to that part of the subject mat
Affirmed in part. Reversed in part. Remanded.