David Josiah Brewer

“ While, of course, it was reasonable, and to be expected, that they would leave for the defendant, who assumed the general residuar liability, a margin above all obligations actually known, in order to compensate him for the risk, as well as to pay him for his services, it is not to be supposed that they were so ignorant of the situation-so misunderstood the real obligations growing out of their negotiations and foreclosure proceedings and all the litigation-as to give to him stock amounting, according to the value then placed upon it, to the sum of $175,000 and over. ”

“ While this reasoning is direct and clear, there are considerations many and persuasive which show that equity will not be satisfied, nor will justice be done, unless and until the plaintiffs are admitted to a share in the stock transferred to the defendants. And first must be considered the situation of the parties at the time the decree was entered. The mortgagor had been thrown into bankruptcy, and Beaman and Jerome appointed as assignees. As such assignees they represented not merely the mortgage creditors, but all the creditors and all the stockholders in the company. ”

“ It interprets the meaning of Wilson's express stipulation in the second of the two contracts of April 9, 1877, for he stipulates to pay 'the taxable costs in the suits and proceedings for foreclosure of said mortgages,'-not the taxed, but the taxable, costs. Strictly speaking, that which is allowed to trustees and counsel as compensation for their services is not a part of the taxable costs, and ordinarily those sums which they pay out for their personal expenses and other costs of the trial are included with their compensation in a gross allowance ”

“ A majority of the court are of the opinion that, in view of the peculiar circumstances of the case, the plaintiffs should not be allowed interest. The decree of the court below must therefore be reversed, and the case remanded, with instructions to enter a decree in favor of the plaintiffs, awarding to them the sum of $25,440, and adjudging it a lien upon the stock of the Lake Superior Ship-Canal, Railway & Iron Company remaining in the hands of defendant. ”

“ The last item therein is significant, especially taken in connection with the testimony given by defendant to the effect that, of the $250,000 going to the Ocean National Bank, only $150,000 represented stock and bonds, and $100,000 was for compensation of the receiver, Davis.
We must not be misunderstood as imputing to the defendant a lack of truthfulness, or suggesting that his testimony as false. ”

“ Necessarily, it follows that whatever had to be paid was to be paid by Wilson, and out of the stock which was coming to him as his portion. Nor is this strange. The sums which the creditors were to receive, whether in cash or in stock, by one or the other of the agreements, were for securities of the old corporation, whose form and amount were specified, and which were to be surrendered by them to the trustees, Man and Wilson. ”

“ If Man received 203 shares, he, as cotrustee, would be entitled to the same number, and for his subsequent services, according to his own statement of the estimate, another equal sum, or 406 shares for those two items. Subtracting that, there still remain 2,262 shares for which no satifactory explanation is given.
It is true that when asked what was included within, and covered by, the $395,000 in the last agreement, he testified as follows:
'A. $90,000, receiver's certificates; $40,000, trustees' commission; $160,000, stock and bonds ”

“ To the payment of the expenses and charges of said sale and purchase of said property, the establishment of said corporation, and the execution by said Man and Wilson and their said associates of the trusts hereby created. ”

“ For what was this balance of stock given to Wilson? It must be remembered that these creditors were not claiming any general amounts. They figured to a cent the sums which each except the Ocean National Bank was to receive. Each, evidently, was anxious to secure for himself as much as possible. Negotiations were carried on for months, even into years. All the liabilities, conceded and doubtful, must have been known to them. Davis, the receiver, testifies: 'We knew how many bonds and receiver's certificates Mr. ”

“ Russell:
'In the memorandum referred to in your bill, a sum appears which is to be paid to Meddaugh & Driggs, and which makes up, in part, the 395 M. which was to have been paid to me. I have rec'd, and now inclose, a copy obtained from Mr. ”