David Josiah Brewer

“ Law Dict. tit. 'Res Judicata.' When an action at law for breach of a contract to invest in stocks fails because the testimony develops that the investment was made and a declaration of trust given in respect to the stock so purchased, it would seem strange to hold that such judgment is a bar to a suit in equity for a breach of the trust, especially when it appears from the records in the law case that an application to change the declaration into a bill in equity in respect to the trust was denied. ”

“ He simply meant to identify the trust property as that which all along had stood in his name as trustee, and to guard against the assertion of a trust in some other portion of the stock. If we go outside of the papers themselves, the testimony tends strongly to uphold the claim of plaintiffs that this was an absolute and unconditional trust. Bardwell did get from Snyder $45,000, as shown, in this way: On April 22, 1869, Bardwell drew three drafts on Strang & Snyder, in favor of McComb, for $15,000 each. ”

“ McComb was a large holder of stock in that company. On November 8, 1871, he made an arrangement by which he sold to the Pennsylvania Company 14,000 shares in the New Orleans, Jackson & Great Northern Railroad Company, at $50 per share, and 5,000 shares in the Southern Railroad Association at $125 a share. At the same time he transferred to the Pennsylvania Company an additional 14,000 shares in the New Orleans, Jackson & Great Northern railroad, and 5,000 shares in the Southern Railroad Association. ”

“ After talking with him six hours I left, feeling disgusted and tired. I only fear now that I do not know the worst. He owes me $700,000, and I fear he has misapplied or used some $150,000 of acceptances. ”

“ The South'n R. R. Association stands all right, and everybody's interest stands upright and square. Yours, truly, H. S. McComb, Pres.'
In June, 1875, Snyder began an action against McComb, in the city of New York. It was an action at law to recover $75,000 on account of the alleged conversion by McComb of this trust property to his own use. Mr. McComb's testimony was taken as follows:
'Question. What has become of the original subscription mentioned in this letter? Answer. It is still in my possession or under my control.
'Q. In what shape is it now? A. Stock of the company, as it was then. ”