Butterfield v. Spencer.

stock issued, shall produce $125. The individuals of the American Express Company who give the guaranty being entitled to take the stock sooner if they choose, and being credited towards the price of $125 per share, with all cash and stock dividends which may be received in the meantime. Those who elect to sell upon these terms are not at liberty afterwards to sell their stock, except with the consent of the guarantors, and the stock in the meantime remains in the hands of said Spencer, as the mutual depositary of the parties. This guaranty is given by John Butterfield, James D. Wasson, Wm. G. Fargo, E. P. Williams, and Johnston Livingston, and is believed to be perfectly good.

"The personal property, leases, etc., of the U. S. Express Company, are transferred, at cost, to the new company thus formed.

"To enable the U. S. Express Company to carry out this contract, and to pay certain general expenses already incurred, a further call, of $24 per share, is made upon the stockholders of the U. S. Express Company, payable on the 25th of April

next.

"It will be seen that the arrangement now stated offers to each stockholder of the U. S. Express Company his choice of either of three courses:

"1. To now withdraw from the company, receiving back the whole amount paid, and ten per cent. in addition.

"2. To receive his share of the stock bought, with the right to elect immediately to sell it at $125 per share, payable within one year in the manner stated.

"3. To hold his stock, receiving such profits as the business may hereafter afford.

"The directors believe that the arrangement now made will prove more advantageous to the stockholders than a contest between the companies could have done, involving, as such a contest must necessarily, a large expenditure of money, which once paid out could not have been recovered.

"Suitable forms for notices are appended for such as may elect to avail themselves of them.

"By order of the Board of Directors.

"H. SPENCER,

"President U. S. Express Co."

Butterfield v. Spencer.

It was also proved that said notice, when sent to and received by Ely, had appended to it the following "forms for notices," viz.

"To HAMILTON SPENCER, Pres't U. S. Express Co., 170 Broadway, New York. "Take notice that I decline to become a purchaser of stock in the American Express Co., pursuant to the contract made between that company and the United States Express Co., and that I elect to receive the sum of $, being the first instalment paid on shares of stock held by me, with ten per cent.

"To HAMILTON SPENCER, Pres't U. S. Express Co., 170 Broadway, New York.

"Take notice that I elect to sell to John Butterfield, James D. Wasson, William G. Fargo, Elijah P. Williams, and Johnston Livingston, so much of two thousand shares of stock in the American Express Company, agreed to be issued to the stockholders of the United States Express Company, as I may be entitled to as a stockholder of the U. S. Express Co., at the price of one hundred and twenty-five dollars per share, payable within one year from the first of May, 1853.

"And I hereby authorize you, upon the receipt of the price aforesaid, to transfer such stock to said persons, or their assigns, you, in the meantime, and until such payment is made, retaining possession of such stock for me, and immediately upon the receipt of such price, remitting the same to me without charge for your services.

"All cash or stock dividends received by me upon such stock, before such transfer is made, are to be allowed as part payment of said price of one hundred and twenty-five dollars.

"Dated,

1853."

It was proved that, in reply to such notice, Ely, on the 14th of April, 1853, mailed to said Spencer a letter, which the latter received on the 15th, and which reads thus:

Butterfield v. Spencer.

"To HAMILTON SPENCER, Pres't U. S. Express Co., 170 Broadway, New York,

"Take notice that I decline to become a purchaser of stock in the American Express Company, pursuant to the contract made between that Company and the United States Express Company, and that I elect to receive the sum of one thousand dollars, being the first instalment paid on fifty shares of stock held by me, with ten per cent. in addition to such instalment. "Respectfully yours,

"Dated, Rochester, April 9, 1853.

"GEORGE ELY.

"Inclosed I send said receipt for instalment of one thousand dollars, on my subscription to the stock of the United States Express Company."

Evidence, as to Spencer's having given notice to John Butterfield and others within twenty-four hours after the receipt of Ely's letter of the 9th of April, 1853, declaring his election as aforesaid, was given by both parties. The sale to Gardner was proved, as stated in the answer of Spencer and Dwight, and also that Gardner paid for the fifty shares as stated in such answer, and also that he paid the further call of $24 per share, and that there was issued to him the certificate, or receipt, as stated in such

answer.

Spencer's letter to Ely, returning the certificate to him, was put in evidence, and reads thus:

"GEO. ELY, Esq.

"170 Broadway, 16th April, 1853.

"Dear Sir:-Your favor of the 14th inst., inclosing notice, is just received. Please sign the inclosed power on the back of the receipt and return to me, and on its receipt a check for $1100 will be sent you.

"Very respectfully,

"H. SPENCER."

The power written on the back of the certificate when so returned to Ely reads thus :

“I authorize and require Charles C. Backus, Treasurer of the

Butterfield v. Spencer.

U. S. Express Co., to cancel the within receipt, and to issue in its place a new receipt for the same to such persons as Hamilton Spencer may direct.

"10th April, 1853."

Ely replied to Spencer's letter, of the 16th of April, by a letter dated the 20th of April, 1853, which letter Spencer did not receive till several days thereafter, being, when it reached New York, in the western part of said State. Such letter reads thus:

"HAMILTON SPENCER, ESQ.

"Rochester, April 20th, 1853.

"Dear Sir:-Your favor of the 16th inst. was duly received. Since the receipt of your letter, I have determined to hold my Express stock, and shall therefore forward the instalment of $1200, in compliance with the call of the Treasurer. You will, therefore, please send back my notice requiring a return of the first instalment, or consider it annulled and inoperative.

George Ely was examined under a commission, as to what was said at an interview between him and Spencer, on the 21st of April, 1853, at Rochester, as the latter was returning from the western part of the State to New York City. It was admitted that Abraham P. Ely was present at such interview, and would testify as George Ely did. The testimony of the latter, on that point, is as follows:

"On the 21st day of April, the defendant, Spencer, was in my office in Rochester, and after I had replied and mailed the letter stating my intention to retain the stock. During this interview, I stated to Mr. Spencer that I received his letter of the 16th, returning my certificate,-that I had decided to retain my stock, and should be prepared to meet the call of the Treasurer for the second instalment, due on the 25th, and that I had written to him to that effect the previous day,

"Mr. Spencer replied, by expressing entire concurrence and satisfaction in this determination. Said he should be pleased to have me remain a stockholder in the company, and was glad I

Butterfield v. Spencer.

had decided to retain my stock; that it would be good property to hold, and would pay liberal dividends.

"My brother, Abraham P. Ely, was present in my office during this interview, and was in a situation to hear what passed between us.

"During the conversation, Mr. Spencer did not say, intimate, or allude, in any way or manner, to his having transferred, or to his having left directions with any persons to transfer, dispose of, or re-issue said stock to any one in his absence. He stated that the condition of the stock had not been changed, and would not be while he was away; that no alteration or transfer of the stock to another could be made without his direction, and that he had made no disposition whatever of my stock previous to his leaving New York, and that it still stood in my name, where it would remain, as I desired."

Mr. Spencer's testimony as to that interview was as follows:

"I had an interview with George Ely and Abraham P. Ely at Rochester, just at evening, on the 21st of April, 1853. It was on my return from Buffalo. I had business to transact with Abraham P. Ely, who was the agent of the United States Express Company, to pay him off, and close his connection with the company. After completing that settlement, just as I was leaving the office for the cars, George Ely mentioned to me that he had arranged, or concluded, or determined to retain his stock, I cannot give his exact words. I replied 'have you' (or substantially so) 'I am glad to hear of it, for I think you will find the stock profitable, and I should be glad to have the original subscribers make the profits, if any.'

He talked a little further in regard to the probable profitableness of the stock, and then I left. Not a word was said in regard to the condition of the stock not being changed, nor about the stock standing in his name, nor in regard to this; that a transfer of the stock would not, and could not, be made in my absence, or that I had made no disposition of the stock. Nothing whatever was said as to the stock during this conversation, except at the commencement, when Ely said he had arranged, or concluded, or determined, to keep the stock. I did not say that the condition of the stock had not been changed, and would not be,