Winchester v. Davis Pyrites Co.

DALLAS, Circuit Judge. The action of the court below was clearly right. The opinion filed by the learned judge of that court fully states the case, and also relieves us from discussion of the questions of law which he considered. Briefly stated, the material facts are these: The appellee sold to the Walton & Whanu Company “the sulphur contents in about 5,000 tons * * * of Small’s pyrites.” The ore was to be burned by the purchaser of the sulphur, and the cinder remaining after the extraction of the sulphur was to be the property of the seller. Such, among others, 46 are the terms-of the written agreement, the indubitable effect of which, as a whole, was, in our opinion, to require that all ore delivered should be burned, and that no part of it should be otherwise disposed of. The custody of the property of the Walton & Whann Company was taken by the court below, and passed into the hands of receivers of its appointment, who are the present appellants. The receivers found at the works of that company a considerable quantity of the unburnt ore which had been accepted by it under the contract which has been mentioned. Continuing for a short time to operate the then existing plant, the receivers burned some of this ore, and with respect to the part so burned there is no controversy. There remained, however, about 1,300 tons of unbumt ore, which it was admitted the receivers did not intend to—in fact, could not—burn, but which they proposed to sell for the benefit of their trust. This state of affairs was properly brought to the attention of the court by petition of the appellee for return of the unburnt ore to it, and we are at a loss to conceive upon what ground a court of equity could, under the circumstances, have refused compliance with this request. Retention of the ore could not1 have been rightfully persisted in, and the obligation to burn it be repudiated., Performance of that condition being precluded by controlling circumstances, equity could be doné only by relinquishing the property to which it related. In no other way was it possible to discharge the debt of justice incurred by the court upon its assumption of the possession. The decree of the circuit court is affirmed.