William Smith, Appellant, vs. James H. Whitfield and James W. Sanders, Appellees, 38 Fla. 211

Mabry, C. J.: From the transcript of the record filed here in the appeal of Smith against Whitfield and Sanders it appears that an injunction was granted on the original bill filed by Smith, the complainant below and that the court refused to dissolve this injunction on motion made for that purpose. The order of the court allowing this injunction is not found in the record, but the order denying its dissolution is presented.

The injunction granted on the amended and supplemental bill was dissolved on the 3d of January, 1896, in the same order in which the dissolution of the injunction on the original bill was denied, and it is an alleged violation of the supersedeas based on the appeal from that portion of the order dissolving the injunction that is the subject-matter of the present investigation.

The supplemental bill alleges that pending the application for an injunction on the original bill, defendants Whitfield and Sanders dug from the land in question phosphate rock and moved it to other land nearby where they had mining operations, and the injunction granted on this bill was against shipping, removing selling or encumbering the rock that had been so dug and removed. The appeal from the order dissolving the injunction was entered on the 31st of January, 1896, and the supersedeas on this appeal was perfected on the 3d of the following month.

Whitfield and Sanders were served with notice of the supersedeas when perfected, but Trubenbaoh was not, and he was not a party to the litigation between them and Smith. The rule charges that Whitfield and Sanders, in open violation of the injunction or supersedeas order, did, on April 11th, 1896, sell, ship and remove about ten car loads — two hundred tons — of the rock from the land therein mentioned, being the same described in the bill, and that Trubenbaoh with knowledge of the injunction and all the proceedings in the cause, aided and assisted them therein.

Considered as an entirety, the rule sufficiently alleges that Whitfield and Sanders, on the date mentioned, in violation of the supersedeas order granted, did sell, ship and remove a portion of the rook dog on the land described in the bill, and removed it to land nearby, and that Trubenbaoh, with knowledge, aided and assisted them in so doing.

Dealing with the case against Trubenbaoh'first, it is made to appear that he, as agent for the Anglo-Continental U-uano Works, entered into contracts, in December, 1894, with Whitfield and Sanders for the purchase of five thousand tons of phosphate hard rock to be delivered in 1895. The contracts recite that Whitfield and Sanders had, on the dates mentioned, sold to the Anglo-Continental (ruano Works live thousand tons of dried Florida hard rock, of specified quality, and at price mentioned free on cars at a designated place.

One-half the rock was to be delivered June-August, and the other half August-October, at buyer’s option, in the year, 1895, and there were stipulations as to the weighing, sampling, analyzing and paying-for the rock. The railroad weights, less one per cent., were to be taken, and the moisture (determined at 212 degs. F.) to be deducted from weight, not to exceed two per cent.

The sampling at port of shipment was at sellers’ expense, and certain named persons were to analyze for the respective parties, and in case of difference of more than one per cent, a third analysis was to be made, and the mean of the nearest result taken for the invoice. Payment was to be made net cash on receipt of analysis. The Augnst-October delivery was not made at the time specified in the contract, but the postponement was at the instance and for the convenience of the buyer.

In consequence of trouble in securing transportation, or the condition of the market, Trnbenbach asked that the second delivery be postponed, and after some delay Whitfield and Sanders-demanded that the rock be shipped, or paid for without shipping, as they needed money. It appears that advancements of money had been made on the contract,, and some time between the 20th and 27th of January, 1896, Trnbenbach caused an estimate of the rook on hand to be made, and upon this estimate paid Whitfield and Sanders $2,600 more on the rock.

The latter on the date last mentioned executed and delivered the following paper, viz: “A. Trubenbach, Esq., Agent Anglo-Continental (late Ohlendorffs) Guano Works. We, the undersigned Whitfield and Sanders, hereby deliver possession to yon of certain phosphate rook (about 3,500 tons) now lying and piled at our mine, Early Bird, Fla., and being the same rock upon which you hold sundry bills of sale or mortgages.

We authorize you to remove and dispose of same as you may see fit, you accounting to us for value of said rock against, any indebtedness due upon contract after deducting the necessary expense of removal of said rock from the point where it now lies to the main track of the F. C. & P. R. R.” Trubenbach immediately took possession of the rock under this instrument, posting notices that the same belonged to the Anglo-Continental Guano Works, and retained possession until the rock was removed in April following.

All the parties regarded the transaction of January 27th as an absolute transfer of the rock to the Anglo-Continental Guano Works in consideration of what had previously been advanced, and what was at that time paid, on the rock. The estimate upon which the further sum of $2,600 was paid proved to be too large, and Whitfield and Sanders were in fact then over paid for what rock was delivered.

On the 6th of April, 1896, Trubenbach instructed one Gibson to load the rock on cars for shipment, and he proceeded to the mine where the rock was situated, some fifteen miles from Ocala, and commenced loading on the 11th of the month.

On that day five or six cars were loaded, and by the 25th. following all the rock was shipped.- The shipping of the rock was under the exclusive management of Gibson, who was acting under written instructions from Trubenbach, and the testimony shows that the latter had no knowledge, on the 27th of January, 1896, when the transaction of that date took place, of any litigation between Smith and Whitfield and Sanders. He had, of course; no knowledge then of any supersedeas order made in the litigation, as there was none in existence at the time.

Whether Trubenbach had knowledge of the supersedeas order on the 6th of April when he directed Gibson to move the rock, is not clear from the evidence. Trubenbach says he did not know of it at that time. Sanders testified that he spoke to him about the injunction against mining 'rock along after Christmas, but did not tell him at any time of the injunction against removing the rock in question.

They seem to make a distinction between knowledge of the injunction against mining the land and the supersedeas granted on the order dissolving the one against selling or removing the rock that had been dug and removed from the premises.

There are circumstances independent of the testimony of Sanders and Trubenbach bearing on the question of the latter’s knowledge of the supersedeas order when the rock was ordered to be moved by Gibson, but without determining this point, it is clear that when the transaction of January 27th, 1896, took place the injunction against removing the rock had been dissolved, and Trubenbach then' had no knowledge in fact of any litigation between Smith and Whitfield and Sanders.

The appeal, subsequently entered from the order dissolving the injunction mentioned did not, of itself, reinstate the injunction, but the order directing it to operate as a supersedeas and the compliance with the terms thereof did have that effect. McMichael vs. Eckman, 26 Fla. 43, 7 South. Rep. 365. While the supersedeas had the effect stated, it is not contended, as we understand, that it would retroact so as to deprive strangers to the litigation of' intervening rights bona fide acquired. In our opinion it could not have such effect. Archer vs. Hart, 5 Fla. 234; State vs. Johnson, 13 Fla. 33.

Under the showing made, the Anglo-Continental Guano Works obtained not only the actual possession of the rock for valuable consideration paid, but, as against Whitfield and Sanders, the absolute right of disposing of the same, and that too before any appeal was entered or supersedeas granted. First National Bank of Pensacola vs. Wittich, 33 Fla. 681, 15 South. Rep. 552.

It is insisted that the entire dealing between Whitfield and Sanders and Trubenbach was a subterfuge resorted to for the purpose of evading the supersedeas, and that the .transaction of January 27th did not really take place at that time, but was an afterthought. If we were satisfied that such was the case, prompt punishment would be visited upon all parties concerned, but a careful examination of the evidence does not impress us with this view.

The contracts made in 1894 were before any litigation arose between Smith and Whitfield and Sauders, and were undoubtedly genuine, and there is really no impeachment of the showing that the transaction of January 27th, 1896, did at that time take place. The agent of the Anglo-Continental Guano Works would not, in our judgment, subject himself to liability as for a criminal contempt in asserting whatever rights his company bona fide acquired by paying for and taking possession of the rock before the supersedeas was granted.

Whether the rights acquired by the Anglo-Continental Guano Works were in fact superior to Smith’s, is not involved, and if he desired to question • such rights, should have impleaded the company in some way. The rule charges Trubenbach with aiding and assisting Whitfield and Sanders in moving the rock on the 6th of April, 1896. The testimony does not show any aiding and assisting in the shipment on the part of Trubenbach, but it appears that he alone was the moving party in what was done. Contempt proceedings are criminal in their character, and some strictness is required.

Whether a charge for aiding and assisting another in doing

an act will be sustained by proving the doing of the act by the party alone, we need not consider, as the rule against Trubenbach must be discharged for the reasons given. As to Whitfield, there is no ground for complaint. It appears from his testimony, not contradicted, that before the 27th day of January, 1896, he had sold his interest in the firm of Whitfield & Sanders, and it is not shown that he had anything to do with the shipping of the rock in April following.

He does say that Sanders negotiated the transaction of January 27th, by which the rock, was transferred and delivered to the Anglo-Continental Guano Works, and that he, Whitfield, knew of it and approved it.

But at that time there was no injunction pending against the selling or removal of the rock, as no appeal had then been entered from the older dissolving the injunction granted, and the testimony of all parties concerned is to the effect that the transaction of January 27th, by which the Anglo Continental Guano Works acquired the possession and control of the rock was in good faith, and for a bona fide consideration. The proof is not sufficient to show that Whitfield had any agency in the removal of the rock in April, and we have no hesitancy in discharging the rule as to him.

Sanders did not in person engage in the removal of the rock, nor did he assert any ownership or control over the same after the 27th of January, 1896.

But while he did not so far as the evidence shows, personally direct the removal of the rock, nor personally engage in its removal, his conduct in reference to the same is such as to bring him under condemnation for a violation of the order of this court, liad he been in possession or control of the property when the supersedeas was perfected, lie was present when Gribson was having the rock put on the cars and said nothing about the supersedeas, lie notified, as he admits, parties that, they could get employment in loading the cars, and on one occasion took money from Trubenbacli out to the mine for the hands engaged in loading the cars, and did other things inconsistent with the proper observance of the mandate of a court in reference to the property, had it been in his possession or subject to his control.

If delivery liad not been made before thoaupei'oe&ef'.s was perfected, though an agreement for the transfer had previously been entered into, neither Whitfield nor Ganders could, under the terms of the supersedeas order, have subsequently made delivery of the property, or passively stood by and allowed it to go out of their possession; but that was not the case. Actual transfer and delivery of the rock to the Anglo-Continental Works were made before Smith entered his appeal, and Whitfield and Sanders had no further control over the property at that time.

It not being a criminal violation of the supersedeas order for the company to assert such rights as it had acquired before the same was granted, what Sanders did was not in furtherance of an illegal purpose. Our conclusion is, that the rule ni$i should be discharged generally as to all the defendants. In disposing of the questions under the rule we have considered only such portions of the answers-as sufficiently set up the defenses upon which our conclusions are based.

As.the grounds of defense which we have considered in the opinion are sufficiently alleged, it is not deemed' necessary to refer to other allegations in the answers which may be insufficient on demurrer. Order to be entered as directed.