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Prichard, Saul, Bayard & Evans, of Philadelphia, Pa., of counsel), for plaintiff in error.
George Wharton Pepper, of Philadelphia, Pa. (Henry, Pepper, Bodine & Pepper, of Philadelphia, Pa., of counsel), for defendant in
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMSON, District Judge.
WOOLLEY, Circuit Judge. This controversy arose out of war contracts. Canadian Car & Foundry Company, Limited, a corporation of Canada, had a contract with the Imperial Russian government for the manufacture of 2,500,000 shrapnel shells for three-inch quick-firing field guns. Finding it impracticable to turn out shells in this number from its works in Canada, this corporation came to the United States and entered into many subcontracts for finishing shells with concerns having manufacturing plants of diverse kinds. One of these was the Pennsylvania Iron Works Company, a corporation of Pennsylvania, the defendant in error.
This contract between these parties bore date April 20, 1915, and for convenience described Canadian Car & Foundry Company, Limited, as "the Purchaser” and the Pennsylvania Iron Works Company as "the Manufacturer." Pursuant to its terms, stated very generally, the Purchaser undertook to supply the Manufacturer 100,000 shrapnel shell forgings in the rough, together with certain shell parts, and the Manufacturer undertook to supply the remaining parts, such as resin, red lead, asphaltum and lacquer, and to assemble, machine and finish the whole according to patterns and designs having an especial regard to precision in work and accuracy of measurements prescribed by rigid specifications. The work was to be done from templates and be measured by master gauges to be supplied by the Purchaser, conforming with patterns and gauges furnished the Purchaser by the Russian Gov. ernment; and the work was to be accepted and paid for only after it had passed inspection by both the Purchaser and the Russian Government. The Manufacturer undertook to make deliveries monthly and the Purchaser on acceptance to make payment at the rate of $1.80 a shell.
After entering into the contract, the Manufacturer, which had been previously engaged in the manufacture of steam and gasoline engines and hydraulic machinery, put its plant in suitable condition for the manufacture of shells, and the Purchaser delivered to the Manufacturer large quantities of shell parts.
The work was new to both parties. Disputes arose almost at once, with consequent delays on the part of both in the performance of their respective undertakings, resulting, after the delivery of a small number of completed shells, in a breach of the contract, which each party charged to the other.
As a last phase of these disputes, the Manufacturer in July, 1916, regarded the contract as terminated, stopped work, advertised the shells for sale, and notified the Purchaser of its action.
Subsequently to the making of the contract and pending its perform
(256 F.) er disposed of the shells by bill of sale and assigned ne of its subsidiaries doing business in the United 'Agency of Canadian Car & Foundry Company, Limon of New York. This concern, on being informed ale and claiming title to the shells under the bill of ent from the Canadian corporation, brought these plevin, the first being for shells on which the Manu; some work or had supplied some material, and the shells on which it had done no work and toward it had supplied no material. The value of the shells at $77,015.81. Agency of Canadian Car & Founmited, the plaintiff in the two actions (to which for nall also refer as the Purchaser), gave the requisite Che Manufacturer, in order to hold the shells, arrangr bonds, when, owing to exigencies growing out of issuaded from this action by the Purchaser, resulton to which we shall refer presently. The marshal e shells to the Purchaser and the Purchaser turned other manufacturing concern for completion, after peared from the case. of replevin were tried together, being similar in most dically different in one. We shall therefore review his opinion, but shall dispose of them separately.
Number 2361. ngs in this case are elaborate, but as many of the decided by the verdict, it will be sufficient for the view to state, that the Purchaser, the plaintiff, pleadty in the shells and a right of possession because of f the contract on a breach which it charged to the The Manufacturer, the defendant, traversed this alleunter charge of breach by the Purchaser, and pleadty in itself. Property thus pleaded by both parties 1 issue the Purchaser's interest in the shells and imintiff the burden of proving its right to the immedipossession of the whole of them. McIlvaine's Adm'r r. (Del.) 226, 227; Pritchard's Adm'r v. Culver, 2 Hazzard v. Burton, 4 Har. (Del.) 62. al, the Purchaser proved in support of its claim of
possession that the shells in the rough and certain re originally its property, that they were delivered to - only to be machined, assembled, and finished, and ard to any special property which the Manufacturer have acquired in them under the contract, that propwholly lost and had passed from the manufacturer
upon the termination of the contract, by force of provided : mpletion or termination of this agreement, by cancellation e case may be, the Manufacturer shall forthwith deliver, Purchaser, all steel shell forgings, component parts or oth
cí th tic
er material, the property of the Purchaser, which may then remain in the possession of the Manufacturer."
This clause the Purchaser contends is the only clause in the contract which related to the title or the right of possession of the shells on the termination of the agreement by whatever cause, and, as the contract has been terminated by the breach of one party or the other, the Purchaser contends further that its right of possession of the shells, in which admittedly it had a general property, was established. Obviously, this position would be sound were clause 27 the only clause in the contract governing the right of possession. But the contract contained other clauses which under certain conditions gave a special property in the shells to the Manufacturer and awarded it temporarily an absolute right of possession. With reference to the Manufacturer's property the contract provided as follows:
"1. That in this agreement that word 'work' shall, except where by the context another meaning is clearly indicated, mean the whole of the material, labor and other things required to be supplied, done, finished and performed by the Manufacturer under this agreement."
On all shells replevied by this writ, the defendant had done some "work” by performing some labor and supplying some material. In addition to its absolute property in the material which it had itself supplied, as resin, red lead, etc., the contract gave the Manufacturer a special property in the shells (notwithstanding the Purchaser's general property) the instant it began “work" on them. The character of this special property was determined by the "work” done on the shells, as defined by clause 1, and its duration was determined by two other clauses of the contract. The first is :
“5. That all work performed by the Manufacturer hereunder, and accepted by or on behalf of the Purchaser, shall be deemed to be the property of, and shall be delivered to the order of, the Purchaser."
As the shells in dispute had not been accepted by or on behalf of the Purchaser, this clause is not pertinent to the controversy except for its implication that the "work" performed by the Manufacturer on the shells, that is, its special property in them, was intended to continue until they had been accepted.
The other clause reads as follows:
"17. When the inspectors find the work completed in accordance with the specifications, they shall issue certificates in writing accepting the same; and it is agreed that the property in the work shall not pass from the Manufacturer to the purchaser until after the same shall have been inspected and accepted by the inspectors, notwithstanding that there may be any delay in making the inspections, or that any part or the whole of the purchase price of the work shall have been already paid to the Manufacturer."
From these several clauses of the contract it appears that each party had a property in the shells, one a general and the other a special property. They were not joint properties, where each drew to itself the same right of possession, thereby precluding an action of replevin by one joint owner against the other. Pritchard's Adm'r v. Culver, 2 Har. (Del.) 129, 130; Fell v. Taylor, 2 Pennewill (Del.) 372, 45 Átl. 716. They were several properties of different kinds, running for dif
(256 F.) nich drew to the holder of one or the other the right y according to the terms of the contract by which e established and defined. There being two propernot inconsistent one with the other because the two
a right of possession at the same time, we think the e committed no error in construing the contract to rties, fully recognizing that the shells had been and ne into the possession of the Purchaser by reason of Ety in them, intended, nevertheless, that the Manuon of its special "property" should hold the shells
possession as security for its investment of labor they were inspected and accepted. Nor do we think red in holding that clause 17 of the contract, which manufacturer a special property in the shells on which - until inspection and acceptance, is not inconsistent -hich provided for the delivery by the Manufacturer of the Purchaser" on the termination of the contract. property of the Purchaser” as expressed in the latthose shells on which the Manufacturer had done no ore shells in which the Purchaser had a property and I had none. No shells of this kind are involved in plevin. Only shells in which the Manufacturer had
are here in suit.
r, the plaintiff below, sued out this writ of error. It se, assign as error the finding by the jury that the conerminated by its breach, but conceding this, as it must,
in the admission of testimony and in the form of the shall address our discussion first to the form of the f infirmity be found here, other errors, if committed se to be of importance. r contends very correctly that the verdict must be rennent be entered under the Act of April 19, 1901, Statvania, P. L. 88, entitled "An Act relating to replevin, the practice in cases where the writ of replevin is isplicable provision of this statute reads as follows: to said goods and chattels be found finally to be in a party
given possession of the same, in said proceeding, the jury he value thereof to the successful party, and he may, at his rit in the nature of a writ of retorno habendo, requiring the
delivery thereof to him, with an added clause of fieri facias as to the damages awarded and costs; and upon failure so to recover them, or in the first instance, he may issue execution for the value thereof, and the damages awarded and cost; or he may sue, in the first instance, upon the bond given, and recover thereon the value of the goods and chattels, damages and costs, in the same manner that recovery is had upon other official bonds."
Acquitting ourselves of any intention of construing this state statute beyond its application to the case in hand, we may say that what the quoted provision seems to do is to enlarge the common law process of execution in replevin by awarding a writ of retorno habendo, not alone in a case where goods have been replevied and judgment is for the defendant, as at common law, but in any case to the successful partywhether defendant or plaintiff-who is not in possession of the goods, against the unsuccessful party–whether plaintiff or defendant—who is in possession of the same. But it is not necessary for us to construe the statute thus far, because the goods having been replevied by the plaintiff and the judgment being for the defendant, it is just such a judgment as could be rendered at common law, to enforcé which the common law writ of retorno habendo or fieri facias is, according to the character of the verdict, appropriate.
 The verdict being in part for a sum of money without words indicating for what it was awarded, whether "damages" or the "value" of the chattels replevied, the Purchaser attacks the judgment entered on the verdict as invalid, because, if for damages, the only “damages” contemplated by the Pennsylvania statute, as it contends, are damages for the caption and detention, and if for the "value” of the property taken, as allowed by the Pennsylvania statute, the verdict fails to disclose a finding of that kind.
If section 7 of the Pennsylvania statute provides in a case like this a procedure in any way different from that at common law, there might be merit in this contention; but the quoted section of the Pennsylvania statute, so far as it is applicable to a case where goods have been replevied and verdict is for the defendant, is but declaratory of the common law. At common law, judgments of several kinds may be entered for the defendant according to which party has possession of the goods at the time of trial and whether they can be reached and returned by a writ of retorno habendo. These different judgments at common law are very clearly defined in the case of Clark v. Adair, 3 Har. (Del.) 113, an early decision by the courts of Delaware, a jurisdiction that adheres more closely to common law practice and procedure as they were before the Hilary Rules and Procedure Acts than any other jurisdiction. In this case the court said: "The judgment for the defendant depends on the pleadings and verdict.
Under the plea of property, the defendant, if it be found for him, is entitled to judgment for the return of the property (pro retorno habendo > and damages for the taking upon the writ. 1 Salk. 93, Butcher v. Porter, s. C., Vin. 249; 5 Mass. Rep. 343, Powell v. Hinsdale; 5 Serg. & Rawle, 135. Easton v. Worthington. But that is not the only common-law judgment, for it is expressly laid down by Lord Chief Justice Hale in his commentary on Fitzherbert's Natura Brevium, that 'if defendant claims property, or says that he did not take, etc., if in the meantime the beasts die or are sold, 80 that he cannot have a return, he may recover all in damages if it be found for him ;' and cites Year Book 7, h. 4, 18; Fitz. N. B. 159, note c.