The opinion of the court was delivered by: DIAMOND
Plaintiffs brought this diversity suit, inter alia, to replevy certain of their cattle which are now in defendants' possession. The matter before the court is plaintiffs' motion for a writ of seizure by which they seek to obtain immediate possession of the cattle pending a final determination of all claims made in their complaint.
Following an evidentiary hearing, briefs and oral argument, we conclude that the motion should be granted.
1. Plaintiff Robert D. Rufenacht is a citizen of Arizona, plaintiff Willard V. Palmer is a citizen of Indiana, and they are engaged in the business of buying and selling cattle under the name of R & P Cattle Co.
2. Defendants John La Carte and Jack La Carte are citizens of Pennsylvania and operate the corporate defendant, La Carte Enterprises, Inc., La Carte Farms Division (La Carte, Inc.), which is a Pennsylvania corporation with its principal place of business in Indiana County, Pennsylvania.
4. On March 25, 1977, plaintiffs and defendants entered into a written "Feeding Agreement" under which defendants agreed to feed and prepare for sale and slaughter cattle shipped to them by plaintiffs and plaintiffs agreed to pay defendants a monthly fee based on the amount of weight gained by each steer.
5. Pursuant to that feeding agreement, plaintiffs shipped a number of cattle, including those here in suit, to the defendants' feedlot.
6. Although the written feeding agreement expired by its terms on September 30, 1978, the parties extended certain of its terms orally, and these remained in effect until the instant dispute resulted in a termination of the parties' business relationship in January, 1979.
7. The following provisions of the feeding agreement were among those which were extended orally by the parties:
"3. Duties Of Feeder : Feeder (Corporate Defendant) agrees to perform the following duties:
"(b) Feeder will assist Owner (Plaintiffs) in selling the cattle for and on behalf of Owner when in Feeder's opinion they are ready for slaughter, to purchasers of Owner's choice and for price which in Owner's opinion is a fair market price."
"8. Default : The Owner hereby grants to Feeder a lien upon the described cattle for all sums falling due and owing to Feeder under this Agreement, in addition to any other liens granted by law. In the event Owner defaults in the payment of monthly compensation to Feeder under paragraph 4 above within ten days after the date of each monthly billing, then and in such event Feeder shall have the option of terminating this Agreement by written notice to Owner; and then and in such event Feeder shall have the right and privilege of enforcing the lien granted herein by selling the cattle of Owner after given ten days written notice to Owner of the time and place of such proposed sale . . . ." (The remaining provisions of Section 8 of the Agreement are not relevant to the issues now before the court)
8. On January 30, 1979, because of a dispute over fees charged by the defendants under the feeding agreement, the plaintiffs advised the defendants that plaintiffs would no longer utilize defendants' feedlot and demanded that defendants surrender possession of all of plaintiffs' cattle then feeding at defendants' farm.
9. Defendants surrendered most of the plaintiffs' cattle, but have refused to release the 201 head which are ...