Opinion · Supreme Court of the United States
Dewey v. West Fairmont Gas Coal Co.
8 S. Ct. 148
- Type
- Opinion
- Court
- Supreme Court of the United States
- Jurisdiction
- Federal
- Date
- 1887-11-21
- Topic
- general
concluding that the district court had ancillary jurisdiction over a suit brought under West Virginia law allowing “a creditor, before obtaining a judgment or decree for his claim, [to] institute any suit to avoid a gift, conveyance, assignment, or transfer . . . .” | pre-judgment fraudulent transfer of assets to non-diverse defendant | prejudgment voidance of fraudulent transfers | prejudgment voidance of fraudulent transfers | prejudgment voidance of fraudulent transfers
Citator
- Cited by
- 34 opinions
DEWEY v. WEST FAIRMONT GAS COAL CO.,123 U.S. 329(1887)
8 S.Ct. 148
DEWEYv. WEST FAIRMONT GAS COAL COMPANY.
WEST FAIRMONT GAS COAL COMPANYv. DEWEY.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF
WEST VIRGINIA.
Submitted November 9, 1887.
Decided November 21, 1887.
The right to maintain such a creditor's bill is based upon the code of West Virginia, c. 133, § 2, which provides that: "A creditor, before obtaining a judgment or decree for his claim, may institute any suit to avoid a gift, conveyance, assignment, or transfer of or charge upon the estate of his debtor, which he might institute after obtaining such judgment or decree, and he may, in such suit, have all the relief in respect to said estate which he would be entitled to after obtaining a judgment or decree for the claim which he may be entitled to recover."
To this bill the defendants in the first instance objected, byPage 333way of plea and demurrer, for want of jurisdiction in the court, on the ground that one of the defendants, the West Fairmont and Marion Consolidated Gas Coal Company, was a citizen of the State of West Virginia, of which also a portion of the complainants were citizens. This objection, however, is not well taken. The suit in equity was an exercise of jurisdiction on the part of the Circuit Court ancillary to that which it had already acquired in the action at law, which it might well entertain according to the rule adjudged inKrippendorfv.Hyde,110 U.S. 276, andPacific Railroad Co. v.Missouri Pacific Railway Co.,111 U.S. 505.
The defendants having answered, denying the equity of the bill, set up their right to recover damages for the alleged breach of the contract on the part of Dewey, Vance Company, in refusing to receive the remainder of the coke deliverable under the contract, by way of cross-bill, in which they sought a decree for the amount thereof. Issues having been made upon the bill and cross-bill, the cause was heard upon its merits, when the Circuit Court rendered a decree dismissing the bill for want of equity, and the cross-bill, with costs, to the original defendants as dependent thereon. From this decree an appeal is prosecuted by the original complainants, and also by the defendants, by way of cross-appeal, from so much as dismisses their cross-bill.
From a careful examination of all the evidence in the cause, we are satisfied with the conclusions of the Circuit Court. We find as matter of fact that the sale of coke was not by sample. A trial lot of 34 car-loads, prior to the making of the contract, was furnished and used, the complainants being satisfied with it, but there was no agreement, either express or implied, that all deliveries under the contract should be equal to it in quality. The object of the test evidently was to determine, on the part of the complainants for themselves, whether they were willing to run the risk of using coke to be manufactured by the coal company from the slack of their mines at the price offered. The coke which was subsequently furnished under the contract was used by the complainants and paid for according to the contract without objection, except as to a lotPage 334furnished in December, 1872, which was complained of as being inferior. On investigation it turned out to have been made from material taken from a slack pile outside of the mine which had been for some time exposed, and had become unfit for the purpose. Thereafter no material was used except the fresh slack taken from the inside of the mines, and deliveries continued to be made as ordered until the last which took place in November, 1873. There was no warranty expressed, nor can any be reasonably implied from the circumstances, that the coke under the contract should be suitable for use in the furnace for making pig-iron. On the contrary, it was expressly understood that it would not be suitable for that purpose by itself. The only question to be determined was whether it could be used in combination with Connellsville coke, which was the standard for that purpose, and if so, in what proportions; to determine this was the object of testing the trial lot. The complainants continued to use it, as already stated, from time to time, without objection or complaint, paying for what they received according to the terms of the contract, and not at any time giving notice of any intention to refuse the further performance of the contract, although ceasing to give any orders after November, 1873. On November 28, 1873, the coal company, in a letter from its president to Dewey, Vance Company, asked for the reason for the order to discontinue shipping, in reply to which, on December 4, 1873, Dewey, Vance Company wrote: "Yours of the 28th inst. was duly received. We were accumulating stock, and stopped shipments from Fairmont and curtailed from Connellsville; have no definite idea at what time we shall again need." No further communications appear to have taken place between the parties until the beginning of the action at law.
We think the Circuit Court did not err upon the merits in dismissing the complainants' bill, and, as the cross-bill was dependent upon it and sought no relief purely equitable, it was also properly dismissed, with costs to the complainant therein, thereby remitting it to its remedy in the pending action at law.The decree of the Circuit Court is accordingly affirmed.Page 335