Crawford v. Edgerton

39 F. 523, 1889 U.S. App. LEXIS 2339

• Court: U.S. Circuit Court for the District of Indiana
• Decided: June 14, 1889
• Status: Published

Opinion

Woods, J.

The original contract between the parties is not simply a license, but an agreement by Edgerton to sell (as well as license the purchasers to cut, etc.) “the black ash trees suitable for racked hoops,” upon the described land, “to be all cut, worked up, and removed from the land as rapidly as reasonably practicable, and within four years from the 1st day of September, A. D. 1878.” And by the force of the clause in respect to the use of the tram-road, the time for removal, it is clear, was extended to September 1, 1883. The sale, however, was not absolute, but upon condition that the title of the timber, though cut and worked up, should remain in Edgerton “until paid for.” A further plain effect of the agreement 'is that it shows a sale of all the timber on the land suitable for racked hoops, and, while Crawford and Crandall perhaps had no right to cut after September 1, 1882, they were bound to cut it all before that date, and remove it within a year thereafter, and for a failure either to cut or remove, or both, Edgerton might have claimed damages,’ if any resulted. He could probably, by consenting to an extension of time for cutting and removing, have insisted upon payment for all timber left standing, as if it had been cut within the stipulated time. In other words, notwithstanding the expiration of the time, he might have insisted that all the timber embraced in the contract should be paid for at the stipulated price, and, if he suffered damage by the purchaser’s delay to cut and remove, might have claimed that also. To say the least, the right to cut continued, until September 1, 1882, and all efforts before that date to declare a forfeiture of the contract were unfounded and nugatory.

The merits of the case,'in my judgment, after carefully reading all the evidence, including letters and suggestions of counsel, are in a small compass. There was a dispute between the parties in respect to the rule of measurement, Crawford and Crandall claiming Doyle’s rule, and Edgerton insisting upon Scribner’s. By Doyle’s rule, the timber cut and removed had been paid for; but by Scribner’s, 150,500 feet had not been paid for. Edgerton replevied a quantity of hoops, valued at $848; and at the trial, under the instructions of the court, there was a finding for Edgerton upon the theory that Scribner’s rule was the true rule, and consequently, the timber in the hoops not having been paid for, the title of the hoops and the right of possession were' in Edgerton, and he had a verdict for the return of the property or the payment of its value, assessed at the sum stated. Crawford and Crandall, having sold tlqe hoops, paid into court or to Mr. Edgerton their value, and brought this action, after demand, for the recovery of the excess over the amount due and unpaid to Edgerton for the timber. If, in pursuance of the judgment; in replevin, Crawford and Crandall had returned the property, it is, I suppose, beyond dispute that, upon payment of the balance due Mr. Edgerton, they would have been entitled to retake possession; and my judgment is that the money paid upon the judgment took the place of the property, and was subject to the same rights and remedies. The judgment settled nothing to the contrary, and constitutes no estoppel against an inquiry into the facts and to an adjudication according to the equities of the case. Any bailee or trustee, entitled to the possession of property, securities, or money, may recover from the owner, who has taken unlawful possession, the money or property Or value thereof if converted, but after such recovery it is clear that the rights and the title of the bailee or trustee, as against the owner, would be the same as if there had never been occasion for such action and the judgment never rendered. Decree for plaintiff.