Castle v. Logan

140 F. 707, 72 C.C.A. 201, 1905 U.S. App. LEXIS 3954

• Court: Court of Appeals for the Eighth Circuit
• Decided: October 6, 1905
• Docket: No. 2,167
• Status: Published

Opinion

LOCHREN, District Judge,

having stated the case as above, delivered the opinion of the court.

It is only necessary in this case to consider whether the learned trial judge was justified in directing the jury to render their verdict for the plaintiff, as no complaint is made in respect to the amount of the verdict, if the plaintiff was entitled to recover. Was the plaintiff entitled to recover upon the note? The note itself says that it is to become due and payable under the terms and conditions of the attached agreement. Looking at that agreement we find that, after Castle has reconstructed and commenced the operation of 'the stove works plant, the note will not become due or payable so long as he shall “in good faith continue the active operation of said stove works plant, as a stove works manufactory or foundry, or as some other manufactory.” It is evident from this written agreement that a principal consideration for the subsidy was the establishment and carrying on of a business which should give continued employment to a large number of men, probably “from 40 to 75.” The continued operation of the works was to be “active”; and Castle was entitled to be credited, as paid upon the note, with one-tenth of the amount paid each year “for labor of all kinds in connection with the said works, including salaries paid to traveling salesmen who are residents of Keokuk only.”

Continuous, active operation of the works contemplated surely steady employment of this labor. That temporary stoppages might happen was foreseen; and such as should not be regarded as a breach of the contract for continuous active operation of the works were designated, namely, such as might be caused by “strikes, fire, elements, unavoidable accidents, or other legitimate causes for the temporary stopping of said business.” The general words “other legitimate causes” must, under a familiar rule, be construed as being limited by the enumerated causes, to causes of a similar character, and hence to causes for stoppage over which the defendant had no voluntary control. The language so employed will not excuse, nor permit to be classed as temporary, a voluntary stoppage by the defendant, of the entire active operation of the plant, indefinitely in respect to time, resulting in dismissing the artisans and laborers to seek other employments, merely because in defendant’s opinion the operation of the works was not profitable, or because he had allowed manufactured material to accumulate on his hands. At the time of the commencement of this action such voluntary stopping of all active operation of the plant had continued, unbroken for nearly two years, without prospect or promise of change. A stoppage for an indefinite time, so long continued, with no assurance of change, is certainly a permanent stoppage of the operation of the plant and abandonment of the same as a manufactory, as • those phrases are used in that contract, and obligates the defendant “to refund and repay at once to said William Logan, as trustee, or his successors, any amount of the said $9,000.00 which has not been paid upon the note above described, in accordance with the terms and conditions of this contract. The abandonment or permanent stopping of the operation of said plant to cause any balance due from said C. H. Castle to William Logan, trustee, to become at once due and payable.”

The word “permanent’ as employed in this contract does not mean forever fixed and unchangeable, but is used in contradistinction to “temporary” as therein defined, and means a continued condition of stoppage for other than the temporary causes stated and which is indefinite and uncertain as to the time it will endure. Upon the happening of such a stoppage, permanent in character from its commencement, the balance unpaid of the note “became at once due and payable.”

There was, upon the trial, no question as to the voluntary stoppage by the defendant of the active operation of this plant, or as to its character or continuance, which remained unchanged at the time of the trial.

The verdict for the plaintiff was properly directed, and the judgment is affirmed.