67 F. 404 | U.S. Circuit Court for the District of Oregon | 1895
The petition of George W. Hunt prays that he may be allowed to share in the proceeds of the sale which has been had, on foreclosure, of the Oregon & Washington Territory Railroad. He claims as the owner of coupons of the value or amount of §233,340, originally belonging to the bonds secured by the mortgage for the foreclosure of which this suit was brought. The Oregon & Washington Territory Railroad originated with the people of Pendleton, Or., who organized a company, and procured money by subscription, to inaugurate the building of a line from Pendleton to Wallula Junction. Hunt became the contractor to build the road. Soon thereafter the enterprise was, in
•‘Philadelphia, Pa., Feb. 27, 1891.
“It is hereby agreed between O. B. Wright, of Philadelphia, Pa., and G. W. Hunt, of Walla Walla, Wash., as follows: The said Hunt agrees to deliver, and the said Wright to take, all of the issue of bonds of the Oregon & Washington Territory II. R. Co. (except 1,142 bonds of the first issue on the Pendleton Division, already sold), at 90 per cent, of their par value, at $20,000 per mile, or at a purchase price of $18,000 per mile. There are said to be 111 miles of said road, but the exact mileage shall be determined by actual measurement, by two competent parties, one to be selected by each of the parties to this contract. If said road is not in a fair and reasonable good condition, according to the standard of western railroads, the said Hunt agrees to put it in such a condition, to the reasonable satisfaction of the president and chief engineer of the Northern Pacific, at his own expense. This provision applies only to roadbed, not to stations or other improvements. The said Hunt further agrees to deliver to said Wright, without additional compensation, 51 per cent, of the capital stock of said corporation. It is further agreed that said Hunt shall be paid for all the rolling stock of said corporation, or of said Hunt, and used by said corporation, an additional sum, to be determined by T. F. Oakes, president of the N. P. R. R., and G. W. Hunt; also that the said Hunt shall be allowed to build and complete, ready for the rolling stock, about 42 miles of extension of said road, as follows:
“About 18 miles to the Snake river.
“ 12 “ to the near Conalle.
“ 12 “ to the near Milton.
—All in Washington and Oregon, whenever the same shall be built, and at such price as may be agreed on with the said T. F. Oakes. The terms of payment to be as follows: $75,000 cash, which immediate payment shall be further secured by said Hunt pledging with said Wright, as collateral security, until the second payment is made, all the capital stock of said corporation remaining and belonging to said Hunt, over and above the 51 per cent, aforesaid.
“$800,000 to be paid on Friday, April 17th, 1891.
“$300,000 “ “ “ “ July 1st, 1891.
“$400,000 “ “ “ “ September 1st, 1891.
—And the balance on December 1st 1891. Deferred payments to draw interest at 6 per cent. It is further agreed that said road shall be delivered clear and free of floating (or unsecured) indebtedness, and that the said Hunt, as president of said corporation, shall lend his best efforts and his time to the reorganization of said corporation, as the said Wright or his successors shall direct. O. B. Wright. [Seal.]
“G. W. Hunt [Seal.] “C. B. Wright
“In the presence of “C. E. S. Wood,
“C. B. Wright, Jr.”
Wright has made all the payments provided' for in this agreement, and has paid in addition thereto above $230,000 in settlement of floating debts of the road. The foreclosure sale that has taken place has been in his interest. He purchased the property at such sale in extinguishment of his liens, so that any payment decreed to Hunt on this petition will be, in effect, at Wright’s expense. If what Hunt did amounts to payment of coupons of outstanding bonds of the company, he is not entitled to be subrogated to the rights of the original holder of the coupons so paid. What he did was intended to have the appearance and effect of payments made by the debtor company, and was for the purpose of advancing or sustaining its credit in the market. He was the absolute manager
On the intervention of Congdon in this case (58 Fed. 640), I considered the effect of the agreement between Wright and Hunt, of February 27, 1891, and concluded that this agreement was, in effect, a purchase by Wright from Hunt of the road in question, free from all indebtedness. I am still of that opinion. Wright testifies that the agreement w'as the result of a conference between the parties at his home, in Philadelphia, where he was visited by Hunt and Mr. Wood, Hunt’s attorney; that the latter introduced the subject of the agreement with the statement:
“Now, Mr. Wright, we have come here to sell you this road. We have got to the end of our string, and we have got a large amount of money to raise on Monday. Mr. Hunt has been called upon for a large amount of money payable on Monday,—the first of March, he said,—and we want to sell you this road.”
He testifies that in pursuance of this offer the contract in question was entered into, and the road taken possession of by him. This testimony is not contradicted. But, without this testimony, the written agreement of the parties clearly shows that the contract was, in effect, one of sale and purchase. Wright bought all the bonds and 51 per cent, of the stock of the company; provided for all the floating indebtedness, for the purchase of the rolling stock, and for the construction of 42 miles of extension of the road, to be paid for at such price as should be agreed upon between Hunt and T. F. Oakes, president of tbe Northern Pacific Railroad Com pany. The provisions in the agreement as to such construction, that “Hunt shall be allowed to build and complete forty-two miles”
It is in evidence (for the admission of which the case was reopened after it had been submitted) that Wright, in an answer filed in this court to the petition of W. M. Ladd and others, in a proceeding where the question became a material one, denied that he ever be(came, in fact or at all, the owner of the franchises or, properties of the Oregon & Washington Territory Railroad Company, or interested in them in any other way than by the purchase of bonds and stocks. This answer was sworn to by Wright, and filed after the adjudication in the Congdon intervention, where it was decided in favor of Wright’s contention, that he did, in effect, become the purchaser of the road free from all indebtedness, and that the purchase by him of bonds and stocks on February 27, 1891, was merely a means to. that end, and after this cause had been submitted here upon his like contention, supported by his own oath and the argument of his lawyers. It was to his interest, in the Ladd petition, that his relation to the road should be held to be merely that of stockholder and creditor, and his oath therein is according to that interest. His interest in the Congdon intervention and in this intervention is the other way. In this case, as in the Congdon Case, he makes it clear that Hunt came to him with a proposition to sell the road, and that it was upon that basis that the contract was made, and he testifies that he took possession of the road. I am not authorized to punish Wright for his oath on the Ladd petition by a judgment in this case that is contrary to the judgment rendered by me in the Congdon intervention, and to my present convictions of the truth of the matter to be determined. There is no room for an estoppel. The question for decision rests upon a written contract of the parties, and upon what was done under that contract, and is not open to doubt. The prayer of the petition is denied.