A

ACTION.

1. The plaintiff was employed by the firm
of H. C. Seymour & Co., of whom the
defendants are the survivors, to procure
for the firm from the directors of a Rail-
road Co. authorised to construct a rail-
road from Cincinnati, Ohio, to Illinois
town, Illinois, a contract for building
the road, and agreed to pay him for his
services, should he succeed in obtain-
ing the contract, the sum of $10,000.
The plaintiff concealed his own agency,
and the contract was obtained through
the influence, with the directors of the
company, of third persons employed by
the plaintiff, and acting for a pecuniary
reward. He claimed in this action to
recover the $10,000 with interest, which
the firm of H. C. Seymour & Co. had
stipulated to pay him.

Held, upon a full examination of adjudged
cases, that the contract, upon which
the action was founded, if not in its
terms, yet from the nature of the means
that were used to influence the action
of the directors of the Railroad Co., by
an agent of the plaintiff, was an agree-
ment, which, as contrary to morality
and public policy could not be enforced.
Davison v. Seymour.

88

2. An existing valid cause of action, in
favor of the plaintiff, against the de-
fendant, is not discharged or waived
by an offer of the plaintiff to permit
the defendant "to use the amount
due to the plaintiff thereon, if it will
enable the defendant "to carry a trade
through," made between the defendant

and a third person, without other as-
sistance from such third person, though
such cause of action accrued and the
amount, the use of which is so offered,
is due, for services of the plaintiff, as
broker, in negotiating the trade alluded
to in such offer. Merrielees v. Bing-
ham.
166

The acceptance of such offer by a let-
ter which states in substance that, the
defendant on consummating the trade,
will keep back a part of the property
in which, by the terms of the trade,
payment by him to such third person
was to be made, "to supply any defi-
ciency," in connection with such offer,
imports that the offer was an offer of
the use of the amount, due from the
defendant to the plaintiff, temporarily,
and not a gift or waiver of it, and that
it was not made to induce the defen-
dant to modify his contract with such
person, and submit to terms to which
he might not otherwise assent, on con-
dition of being exonerated from such
claim of the plaintiff.

id.

When an owner of property, at the
time encumbered, assigns it to another
on his agreement to pay the encum-
brance and sell the property, and, after
satisfying his advances and disburse-
ments in that behalf, to pay to the as-
signor one-half of any surplus left, and
of any profits made by the use of the
property in the meantime, and finally,
the two agree upon the sum to be paid
to the original owner, in satisfaction of
his interest and claims, and such as-
signee then sells and transfers such
property, subject to such original own-
er's claims thereon and interest there-

on, and such second purchaser agrees
to pay the sum so adjusted and agreed
upon, and he subsequently transfers
the property to a third purchaser, who
does not agree to pay it, but subject
expressly to such claim, and the third
purchaser sells it to a fourth, subject to
such claim, and who also agrees to pay
to the original owner the said sum so
agreed upon; an action may be main-
tained by the original owner against
all of said defendants, to have the pro-
perty sold and the proceeds applied to
pay the sum so agreed upon, and in
default of the said amount being rea-
lized from the property, to collec from
the said first and second purchasers, in
the order of their liabilities, the amount
of the deficiency. Ford v. David. 569

5. In such an action the original owner
may have judgment against the first
and second purchaser severally for the
amount so agreed upon, upon their
promise to pay it. But he can have
no such judgment against the third
purchaser, as he did not personally
promise to pay, nor against the fourth
purchaser, as his promisee was under
no personal liability to pay.
id

6. On such a state of facts, the claim to
have the sum so agreed upon declared
a lien upon the property, and ordered
to be paid out of it by a sale of the
property, and such an application of its
proceeds, is a single cause of action.
The several liabilities of such purcha-
sers are collateral matters, and may be
enforced to make good any deficiency
resulting from a sale of the property. id.

Vide SURETY, 1, 2, 3.

Ante, 436 and 490.
ESTOPPEL, 1, 2, 3.
INSURANCE, 29 and 31.
PRACTICE, ABATEMENT, 4.

ADDENDUM.

Vide ante, 697.

AGREEMENT.

1. When a written agreement has been
duly made by and between two joint
stock Express Companies (which they
were competent to make) for the con-
solidation of the two companies and the

merging of one of them in the other, by
which agreement the one to be merged
agrees to buy 2000 shares of the in-
creased stock of the other, and which
stock such other agrees to issue and sell
for $200,000, and by which the stock-
holders of the one to be merged are to
have the right, inter alia, of becoming
purchasers of such 2000 shares, in pro-
portion to the amount of stock they
hold in the company to be so merged,
or to relinquish their stock to the com-
pany of which they are members and
receive therefor such sum as they have
paid on account of their subscription
for the same and ten per cent. in addi-
tion thereto; and the company to be
merged, on the making of such agree-
ment, through S., its President, notified
all of its stockholders of such agree-
ment and of its provisions, and in such
notice offered to each of them, his elec-
tion of either of the several provisions
made, by such agreement, for the be-
nefit of such stockholders, and E., one
of such stockholders, on the receipt of
such notice and offer, wrote a letter to
S. as such President, inclosing in it
E.'s certificate of stock (being the only
evidence he had of any right to stock
in such company), and by such letter
declared that he declined to become a
purchaser of any part of said 2000
shares, and that he elected to take the
amount he had paid on his subscrip-
tion for such stock, and ten per cent.
in addition thereto, held, that, the elec
tion tendered to E., by S., on behalf
of the company of which he was such
President, and the letter sent by E. to
S. with the declaration of his election
thereby communicated, was an offer by
S. (on behalf of said company) to re-
ceive back E.'s certificate and pay him
therefor, which, on being accepted by
E. (by declaring his election to surren-
der his stock-certificate, and receive
the sum so offered to be paid), became
a binding contract, irrevocable, except
by the mutual assent of E. and of the
said company, as the parties to such
contract. Butterfield v. Spencer. 1

2. Held also, that, G., to whom S., as such
President, on the day of, and after the
receipt of E.'s said letter, sold the stock
which E. so declared his election to
surrender (G. having bought and paid
for the same in good faith), acquired a
valid title to such stock as between
himself and E. and as between himself

3. It was also held, that, the fact that S.,
after offering to sell such stock to G.,
returned said stock-certificate to E.,
with a request that he would sign an
endorsement written by S. thereupon,
in these words, viz.: "I authorize and
require Charles C. Backus, Treasurer of
the U. S. Express Company" (the Com-
pany to be merged), "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", and then return it to S., did
not give and could not be regarded as
having been intended to give, to E. a
right to renounce the election he had
made, or to treat the matter as opened
for further negotiation:
id.

4. Held also, that, S. having, under such
circumstances, sold the stock to G.,
and the latter having paid for it, to the
company of which S. was President,
and the company having adopted the
sale, and continuing to insist upon its
validity, it did not lie with E., or the
plaintiff as his assignee subsequent to
such sale, to deny the authority of S. to
make it.
id.

5. Also held, that, although the consoli-
dation agreement required S., within
24 hours after being notified by any
stockholder of the company to be mer-
ged, of his election to surrender his
stock, and that he declined to be a pur-
chaser of any of the said 2000 shares,
to give the like notice, in writing, to
the trustees of the other company (who
were named), and who agreed that, on
that being done, they would take and
pay for the stock of such declining
stockholder, yet, whether S. neglected
his duty, in not giving notice to said
Trustees, in the manner and within the
time prescribed by said agreement, of
E.'s said election, is a question between
such trustees and S. or the company of
which he was President, and that its
just determination did not affect the
rights or liabilities of E., growing out
of his acceptance of the offer made to
him by the company of which he was
such stockholder.

id.

Held also, that, after such sale to G.
of, and payment by the latter for, such
stock as aforesaid, E. could not retract
his said election and hold the stock,
even though it was satisfactorily proved
that a conversation was subsequently
had between E. and S. at Rochester,
in which E. avowed a purpose to retain
the stock, and S. expressed his gratifi-
cation thereat, saying at the same time
that the condition of the stock had not
been changed since E. had declared his
said election, and could not be, until S.
returned to New York; and hence, also
held, that it was of no importance that
the statement of the facts found by the
judge who tried the cause, did not show
whether he concluded such conversa-
tion to be what E. swore it was, or
what S. swore it was; (their testimony
in relation to it being in conflict.)

id.

7. It was also held, that the plaintiff who
purchased from E. the stock-certificate
he held and his rights as a stockholder,
after the transaction between S. and G.
had been fully concluded, stands in no
better situation than E. would have
done, and did not thereby acquire any
rights superior to those which E. pos-
sessed, at the time of such purchase by
the plaintiff.

8.

9.

id.

Held also, that the plaintiff by inquir-
ing of E., at the time of such purchase,
why the unsigned endorsement, or pow-
er of attorney, was written on the back
of said stock-certificate, and by being
informed by E., in answer to such in-
quiry, "in substance of the reason why
it was there," acquired a knowledge of
facts, and of acts of E., which conclud-
ed E., and divested him of the power
to reclaim the stock, and consequently
that the plaintiff, as such purchaser,
acquired no right to become a purcha-
ser of any of said 2000 shares of stock,
or to have any of it issued to him. id.

When, by a written agreement, the
parties to it "bind themselves" to per-
form it, and do not by its terms nor
by implication bind any other person,
they are personally liable to do or cause
to be done, and to pay what they sti-
pulate shall be done and paid, although
they are in truth acting on the behalf
or for the benefit of others: If in such
an agreement they designate themselves
as a committee of management, such
designation will be regarded as a de-

agreed "to execute a legal instrument,
in due form of law," &c., &c., cannot be
so construed as to make the agreement
actually signed merely mean that, by it
the parties incurred no obligation ex-
cept to execute such further instru-
ment; as all the rights and obligations
of the parties were settled and defined
by the one they did execute. Although
the complaint designates distinct parts
of it as further causes of action, such
designation may be disregarded, when
it appears on the face of the complaint
itself, that in truth they are only dis-
tinct and several breaches of the agree-
ment copied into the complaint. There-
fore, a demurrer cannot be sustained to
any one of them, as not stating facts
sufficient to constitute a separate and
distinct cause of action.
id.

20. Although such a contract may be va-
lid on its face, yet, if it was the inten-
tion and understanding of the parties
when it was made, that the goods should
not be delivered, but that the difference
between the market price on the day of
delivery and that stipulated in the con-
tract, should be paid by one of the par-
ties to the other, according as such
market price might exceed or fall short
of that stipulated, the contract is not a
legitimate mercantile speculation, but
is a mere wager, and as such is void
under the 8th section of the act "of
betting and gaming" (1 R. S. p. 662).
Whether such was the intention of the
parties is a question of fact, which in
an action for the breach of the contract,
in which a defence under the statute is
set up, must be determined by the jury
upon extrinsic evidence. The admis-

sion of such proof is not a violation of
the rule that forbids the introduction of
parole evidence to contradict or vary
the terms of a written agreement. id.

21. The plaintiffs, at New York, in June,
1846, shipped to the defendants, at
Liverpool, 5,000 bbls. of flour, per "N.
Biddle," and 3,000 per "Georgianna,"
for sale, and by letter of June 25th,
1846, said, "You will please make no
disposition until we give you our wishes,
per 'Caledonia,' unless 22s. in bond is
attainable, in which case, if, in your
judgment, you deem it our interest to
accept that sum, please to do so." On
the 27th of June, 1846, per steamer
"Caledonia," the plaintiffs wrote to de-
fendants thus: "We fear the first in-
troduction for consumption may tend to
continue low prices, as they will proba-
bly be large immediately on the pas-
sage of the new bill." (Meaning, by
the new bill, the British Corn Law Bill,
reducing the duties on foreign bread-
stuffs, then before Parliament, which
received the royal assent on the 27th
of June, and went into operation three
days after.) "Believing that after the
stocks now in bond shall have been re-
duced by consumption, &c., that an im-
provement may ensue, we would ex-
press our desire that these parcels may
be withheld from the market, until the
operation of the new law shall have
produced its results. We hope we may
not err in assuming its passage; though,
if 22s. in bond is attainable on arrival,
and you think our interest dictates such
sale, please so dispose of it." The de-
fendants received this the 12th of July.
Milbank v. Dennistoun.

246

By a letter of the 31st of July, and re-
ceived by the defendants on the 12th of
August, 1846, the plaintiff's say: "We
suppose that ere this the crop of wheat
has been ascertained, as to its probable
yield, and the grain and flour conformed
to such result. We therefore ask you
to exercise your discretion in effecting
sales for us." On the 4th, 5th, and 7th
of August, 1846, the defendants sold
the "N. Biddle" flour, at prices which
produced $2,17 per bbl. net, being out
of bond, and the duties on it having
been paid.

id.

The defendants advised the plaintiffs of
such sale, by a letter dated the 18th of
August, 1846, in which letter the de-