Titus v. Minnesota Mining Co.

8 Mich. 183 | Mich. | 1860

Lead Opinion

Manning J.:

Complainant claims, under a written contract, a right to eight hundred shares of unassessable stock in the Vulcan Mining Company, and has filed his bill for the stock against the Minnesota Mining' Company, an incorporation, alleging they are one and the same company, or that the Minnesota Company is the Vulcan Company under a new name.

The testimony in the case does not sustain their identity. On the contrary, it shows the two companies are not one and the same, but separate organizations, having nothing in common between them. The Vulcan Company is still in existence, and the owner of the' mining location purchased for it of the Baltimore Company.

It follows, as a necessary consequence, that for the stock in question the bill should have been filed against the Vulcan Company, instead of the Minnesota Company; and that it should have been filed by the Baltimore Company, unless complainant is a trustee for the stockholders of that company, under the agreement of the 21st November.

Is complainant a trustee under that agreement ? To solve this question recourse must be had to the agreement itself, which is a contract between the Baltimore Mining Company, by complainant as its president and agent, and Hickok & Co. and their associates. It is not a contract between the latter on one part, and Titus on the other. This is not pretended; nor is there any ground for such a claim, as complainant’s agency is stated in the contract 'itself. The leases to be assigned were the property of the Baltimore Company, and the eight hundred shares of unassessable stock were the consideration, in part, of the, assignment, and must be regarded as the property of the company, unless by some act of the company the stock was to be severed from its effects, and to become the individual property of its stockholders. No act of the company making such severance or distribution of the stock, or authorizing’ it to be made by complainant, is shown; and the provision in the contract for the delivery of the certificates of the stock to complainant, to be in harmony with the other parts of the contract, and come within the scope of complainant’s authority, must be understood as an undertaking, and nothing more, on the part of Hickok & Co., and their associates, to deliver the certificates to complainant as the duly authorized agent of the company to receive them.

The supplementary agreement of Vm. Hickok, of the 23d November, is of no binding force whatever. There are several reasons why it should be discarded: 1st. It is an attempted alteration of the agreement of the 21st November, by Wm. Hickok alone, and not by Hickok & Co. and the other persons associated with him in that agreement; 2d. It is not supported or made binding by any new consideration passing between the parties to the original agreement; and, 3d. Its object would seem to be to give the unassessable stock to the shareholders of the Baltimore Company, instead of the company itself) and to create complainant a trustee to receive and make a pro rata distribution of it. As agent to sell, he had no authority, by contract or otherwise, -to make a partition or distribution of the proceeds of the sale among-the shareholders of the company. His authority “to make sale of the same (the leases), on such terms as he should think fit,” conferred no such power. If I am correct in this, then it was not in the power of the complainant and the other parties to the agreement of the 21st November, had they all joined in the supplementary agreement, to have changed it in the manner indicated by the latter agreement. Nor does the supplementary agreement appear to have ever been ratified by the Vulcan Company. By its articles of association, it is provided, in express terms, that the 800 shares of unassessable stock shall be “transferred to the Baltimore Mining Company.’’

For the reasons stated I think the decree should be affirmed; and I should feel it to be my duty to refrain from expressing an opinion on the case made by the evidence, if I could see that the rights of any one not before us might be prejudiced by it, although the cause was disposed of in the court below on its merits.

It was insisted, on the argument, that the Minnesota Joint Stock Mining Company was formed by a majority of the shareholders of the Vulcan Company, for the purpose of appropriating to their use, land to the exclusion of the other shareholders of the Vulcan Company, a mining location that the Vulcan Company had contracted to purchase of the Ontonagon Company.

The questions, who should be parties to such a case, and what relief should be given, and against whom, I shall not discuss,' as ¡ I do not think the case itself is made out by the evidence.

By whom was the north half of location ninety-eight purchased? I use the word purchased as including contract to purchase, the sense in which it is used by the witnesses.

Galloway says in his testimony, that “Knapp was authorized by the Vulcan Company to make the purchase;” and that “he did so, as the matter was understood in the 'office of the company.”

As to Knapp’s authority to make the purchase for the Vulcan Company, Galloway is clearly mistaken, as appears from the resolution of the company under which Knapp acted, and the testimony of Hickok, Knapp, Barry, Pears-all, and C. E. Smith, all of whom were at the meeting of the stockholders at which the resolution was passed, Galloway bimself acting as secretary to the meeting, and signing the record. By the resolution, Knapp was “instructed to make inquiries in Detroit and elsewhere, on his return, as to the possibility of purchasing the whole or a portion of the Ontonagon Company’s location, and to communicate to the company, as soon as possible, such information as he may be able to obtain on the subject.” No authority was given him to make any contract whatever.

The resolution was passed under the following, circumstances: Knapp, as agent of the Vulcan Company, had spent the preceding summer, with the workmen of the company in his charge, in making explorations for copper on the location purchased of the Baltimore Company, and had come to the conclusion that it was worthless for mining, and so stated to the stockholders at their meeting on the 20th September, at which the resolution was adopted. At the same time he called their attention to the Ontonagon 'Company’s location, which was for sale, and recommended its purchase. Ilickok and Galloway, as well as himself, were in favor of making the purchase. But the other stockholders were opposed to it — some, because the Baltimore Company would participate in the new adventure without contributing any thing toward the purchase; and others, because they were unwilling, from the experience they had already had, to embark in a new adventure, attended with so much hazard, and, requiring a still further outlay of money. To this last class belonged Barry, on whose motion the resolution was passed. His reason for offering it and asking its adoption by the meeting we will give in his own words. He says: “Mr. Ilickok evinced considerable feeling because his views were not favored by the meeting, and, in order to conciliate him, I suggested that time should be allowed to think and talk the matter over ; that I had no objection that Mr. Knapp, on his return to Detroit, might be directed to make inquiries, and ascertain whether the purchase of No. 98, or a jjart of it, could be made, and report to the company, by - which time we should probably be better prepared to act definitely on the subject. I, therefore, by way of compromise, offered a resolution to that effect, which, after some opposition and much discussion, was finally adopted unanimously by the meeting.”

Knapp, on his return to Lake Superior from the city of New York, where the meetings of the company were held, stopped at Detroit, and made a contract with Mr. Bates for the pinchase of one-half of the Ontonagon location. On the 5th October, he sent the contract, with a letter from Bates to himself, to Mr. Hickok, who resided in the city of New York, and on the 12th October, Hickok wrote Bates a letter, stating that “Mr. Knapp was duly authorized to make any purchase for the Vulcan Mining Company that he deemed best for then- interest; and in the purchase of one - half of the Ontonagon location, the trustees approved of his course.”

On the next day, or 13th October, there was a special meeting of the company, at which Galloway was present, and again acted as secretary. The record of the meeting, after stating that “ the minutes of the last meeting were read and approved,” contains the following entry only of business transacted at it:

“ Communications were presented [and read from Mr. Knapp, agent of the Company, from [Geo. C. Bates, Esq., of Detroit, and Jonas II. Titus. All of which, on motion, were directed to be entered on file.”

Mr. Pearsall, in speaking of this meeting in his testimony, says : “On the 13th October, a meeting of the stockholders was held, and this agreement submitted to them” (the agreement between Bates and Knapp), “ and a copy of a letter written by Wm. Hickok to George C. Bates” (the letter of the 12th October already mentioned). “I again expressed my decided opposition to this purchase, * * * most of the stockholders agreeing with me: Daniel A. Galloway was one of them.”

O. E. Smith, another witness, says: “On the 13th October I was present at another meeting, when, for the first time, I heard that Mr. Knapp had made a contract with the Ontonagon Company to purchase half of its location, thereby exceeding the power given him by the resolution passed at the meeting of the 20th September. I opposed the contract at the time, and all and evei’y measure that tended towards the company’s making a purchase of any new location. I also heard a letter read, written by Hickok to George C. Bates. I censured him for so doing, on the ground that he had no right to write such a letter without confeiring with the trustees. As a trustee and stockholder, I disapproved of the letter. All the other members present took the same ground, except Mr. Roberts, who was president of the meeting. I believe he did not express an opinion on the matter.”

If Galloway, when he says Knapp made the purchase “as the matter was understood in the office of the company,” intends to be understood as asserting that the company approved of what Knapp had done, he is mistaken, as clearly appears from the testimony recited, as well as that of other witnesses to which I might refer.

Knapp left Detroit for Lake Superior soon after making the contract with Bates, to take possession of the Ontonagon location. He proceeded as far as the Sault, and then, for reasons which it is not necessary here to state, returned to the city of New York to see Hickok. In speaking of his interview with Hickok at this time, he says: “Mr. Hickok informed me that there was a general difficulty existing in the company; that the difficulty had increased since I was there, and they had refused to ratify the contract which I had made with Mr. Bates. I did not know what to do then. I talked with Mr. Hickok considerably on the subject, and told him, as I had before, that I had a good deal of confidence in the location, and wanted to secure an interest in it, and wanted he should. I did the best I could to induce Mr. Hickok individually to go into the purchase. I bad learned from him that the Yulcan Company had flared up. He thought favorably of doing it, but did not give an answer directly; said he would look at it, and see what could be done. I understood from him that he had talked with some of his business firm, and he finally said that he would go into it.”

Knapp thereupon returned to Detroit, and consummated the agreement with Bates by taking a conveyance_from the Ontonagon Company to Hickok. He was authorized to do so by Hickok, who furnished him with means to pay the purchase money.

At an annual meeting of the stockholders of the Yulcan Company, on the 6th of December, thereafter, the following preamble and resolutions were adopted:

“ Whereas, The trustees of this company have reported to this meeting the fact of Mr. Knapp’s having left their location and ceased his mining operations thereon; therefore,

“Resolved., 1st. That the meeting do not consider it expedient to resume their mining operations at present.

“2d. That Mr. Knapp be requested to furnish the company forthwith with his accounts t fully made up to the date of his leaving said location, together with a statement of all balances due to workmen, &c., up to the same period, and an exact inventory of the property and effects of all kinds belonging to' said company.”

The evidence referred to, with other evidence bearing on the same points, it seems to me, establishes beyond dispute the following facts: 1st, That Knapp was not authorized by the Yulcan Company to make the purchase. 2d, That with a knowledge of the existence of the contract, the company refused to ratify it. And, 3d, That after the company had refused to ratify the contract, and not before, the purchase was made by Hickok, with more or less expectation, probably, on his part, that it would subsequently be taken off of his hands by the company.

Notwithstanding the resolution of the 20th of September, authorizing Knapp to make inquiries only, Hickok instructed him to make a barg-ain with Bates for the purchase of the location. And Knapp took possession of it, after its conveyance to Hickok, with the men under him in the ernjdoy of the Vulcan Company, and commenced and for several months continued to work it — giving them and others to understand it had been purchased by the Vulcan Company. It also appears, from the evidence before us, that complainant had reason to believe, from Hickok’s letters and the statements of Knapp, that the purchase was made for the Vulcan Company. In answer to such and other like acts of Hickok and Knajjpj or either of them, it is only necessary to say that they were wholly unauthorized ; that they were not the acts of the Vulcan Company, or of its authorized agent, but the individual acts of Hickok or Knap]3. Whatever effect, although,unauthorized, might be given to them in a controversy growing out of them between the Vulcan Company and a third person, none whatever could be given to them in a suit by the Vulcan Company against the Minnesota Joint Stock Company. It must be borne in mind it is that view of the case I am now discussing, and that, for that purpose only, I take it for granted the same relief could be had against the Minnesota corporation as against the Minnesota Joint Stock Company. The Baltimore Company has not, and does not claim, any other right in the Ontonagon location, than what it is entitled to by reason of the eight hundred shares of stock it owns in the Vulcan Company. Its claim is based on the rights of a stockholder of the Vulcan Company; and if the Vulcan Company has no rights, its stockholders have none. The Vulcan] Company might have ratified the contract made with Bates, but this it refused to do at the time, and there is no evidence before us that it was ever ratified. Having absolutely refused to ratify it at the time, it could not subsequently ratify it to the prejudice of intervening rights. Much less would it be allowed to show such ratification by proof of the subsequent unauthorized acts of its agents.

Our attention was particularly called on the argument to the following] language in the preamble to the articles of the Minnesota Association, viz: “The undersigned, parties to this instrument, having purchased through "Wm. Hickok,” &c,; and to the deed from Hickok to the company, which, after reciting the conveyance to him by the Ontonagon Company, states: “And whereas, the undersigned made and held such purchase for. himself and the other persons who have formed an association called the Minnesota Mining Company of New York; and whereas, articles of association have been signed,” &c.

While the parties to these instruments and those claiming under them would, in a proper case, be estopped from denying the truth of these statements — although from the evidence before us uthey do not appear to be true in fact — I am at a loss to perceive their bearing in the present controversy. They contain no recognition of a purchase by, or in trust for, the Vulcan Company; and there is not anything in the articles of association of that company, or in the nature of its business, to prevent, expressly or by implication of law, its members forming other associations for mining, or holding stock in as many different mining companies as they might think proper. And this being the case, Hickok or any other member of the Vulcan Company had a right to purchase the Ontonagon location in his own right. To suppose, therefore, that what took place at the meetings of the Vulcan Company on the 20th of September and 13th of October was^ intended, and was shaped with a view, [to pave the way for such individual purchase, or for the subsequent formation of a new company, or for the purpose of thereafter changing the name of the existing company, would imply simulation without any motive, not in one or two persons, but in a majority of those present at these meetings. It seems almost absurd to accuse Hickok and Knapp of acting a false part at the meeting of the 20th of September; and here, if anywhere, the supposed inquity must have commenced. For they, and they alone, were in possession of all that was then known in regard to the Ontonagon location; and they communicated all they knew about it to the meeting, and urged its purchase by the Yulcan Company. And they were then, and still are, stockholders in the Baltimore Company. How far a knowledge of this last fact may have influenced the action of those who were opposed to the purchase, we do not know. All we know in regard to it is, that the purchase was opposed by some for the reason that the Baltimore Company would have an interest in it without paying any part of the purchase money. At the second meeting — the one held on the 13th of October —Knapp was not present, but Hickok was, and his conduct on that occasion was consistent with the part he took in the first meeting. He was still in favor of the purchase; and notwithstanding the reprimand he then received for writing to Bates as he did, he appears afterwards to have cherished a hope the company would yet make the purchase. On the 6th of December thereafter the Company resolved to discontinue mining, and it Was not until the 6th of June following that the Minnesota Joint Stock Company was formed.

There is another important fact that should not be overlooked. When the purchase was made of the Ontonagon Company the location was not what it • is now. It has derived its importance and value from what has transpired since. Its value at that time was speculative, and the low price at which it was purchased, $1,600, shows the estimate placed on it for mining by the Ontonagon Company. It had been partially explored by that company, but the exploration had not been carried so far as to determine its ultimate-value for mining. It has since proved to be one of the best mining locations in the Lake Superior country. It is this that gives the present suit the magnitude and importance so justly attributed to it by the parties. When the acts of men are impugned as not truthful, the magnitude of the benefit or advantage to be derived from them is a circumstance always to be taken into consideration, with other evidence, in determining the truth or falsity of the acts themselves. But it must be the magnitude of the benefit at the time the acts were done. Like a ticket in a lottery, the value of the ticket before the lottery is drawn, and not after the ticket has drawn a prize. Apply this principle to the meetings of the Vulcan Company of the 20th of September, the 13th of October, and the 6th of December, and how very small was the motive for making the acts of those meetings speak a falsehood. If there is anything false, it is not in the records of the meetings, but in the acts themselves.

The Vulcan Company was formed for mining on the location purchased of the Baltimore Company, and our attention was called to the following words in the articles of the company: “Or on other lands in said district that may be leased, located or bought by this association for mining purposes.” These words, as I understand them, do not make it obligatory on the company, on the Baltimore location proving worthless for mining, to purchase or lease other locations. Besides, there is nothing in the agreement between the Baltimore Company and Hiekok and others, of the 21st November, requiring the company to be formed in pursuance of it to assume such an obligation.

The decree of the court below, I think, should be affirmed.

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Dissenting Opinion

Martin Cli. J.,

dissenting:

Objections to the bill were raised before us, and appear to have been made at the hearing below, also, for want of proper parties as complainants, and as defendants. I regard with disfavor an objection dilatory in its nature, which is not raised preliminarily by demurrer to the bill, but is suggested after the cause is put at issue, and the parties (as in the present case) have been put to the enormous expense of taking proofs, and preparing the cause for a hearing upon the merits; and with the more especial disfavor when such objection is not even pointed out in the answer. There is no equity in allowing a cause to pass off upon such grounds, thereby putting the complainant to the trouble and expense of instituting new proceedings, either alone or with others, and of re-taking testimony which has already been submitted to the court, upon which a decree upon the merits can be pronounced. Especially is there no equity in such a course in this case, where the merits were the foundation of the decree appealed from, and the question of a want of parties was only incidentally alluded to — so that the appeal is, in fact, from a decree dismissing the bill upon the merits.

The objections which I shall notice are, for a want ol the Baltimore Mining Company as complainant, and of the Vulcan Mining Company as co- defendant: as that of the want of Hickok, and the stockholders of the different companies, will be necessarily disposed of by the view I take of these objections.

And first, as to that of the want of the Baltimore Company as co - complainant.

On the 21st of November, 1846, Titus, as president and agent of such company, agreed to sell to Iiickok & Co., and their associates, two locations of such company, numbered 267 and 269. For these locations they were to pay $4,-500 on the proper assignment to them, or to the trustees of a company to be formed by them, of the leases of such locations; and were to deliver to Titus proper certificates of one-fifth of the entire interest therein, and of the capital stock of a company to be formed for 'mining thereon, to be forever unassessable, and to be delivered to the shareholders of the Baltimore Company; and a company for mining purposes was to be formed in New York on the basis of such locations; the articles of association 'of which should embrace, among its fundamental provisions, one for the division of its stock into 4,000 shares, of which 1,000 should be unassessable, and 800 of these should belong to the shareholders of the Baltimore, and the remaining 200 to the new company.

Two days after, the leases of these locations appear to have been assigned to I-Iickok for the benefit of the contemplated company; and at that time, and undoubtedly as a part of the transaction, TIickok, as such assignee, executed to Titus, as a supplement to the articles of the 21st, an instrument which is as follows: “As a part of the consideration for the sale and transfer of leases Nos. 267 and 269 of mineral lands, by the Baltimore Mining Company to William TIickok, I do hereby agree and promise that, on the formation of a mining company on said leased lands, 800 shares of unassessable stock shall be issued to the president of the Baltimore Mining Company; to be endorsed by him and distributed among the shareholders of the Baltimore Mining Company, pro rata to their number of shares; said unassessable shares to be numbered from 1 to 800 both inclusive; [said new company to be organized, and the stock issued, within sixty days from date.’’

Accordingly wo find that on the 80th of the same month, the Vulcan Mining Company was organized, by articles of association dated and signed upon that day, in Avhieh these agreements with the complainant are fully recognized, and provision made for their execution.

The contract therefore is, in my opinion, to be ascertained from a construction of the instruments of November 21st and 23d as one. I do not regard that of the 21st as having been materially altered by the supplement executed on the 23d; as by the former the certificates were to be delivered to Titus to be delivered to the shareholders of the Baltimore Company, while by the latter they were to be issued to Titus, to be endorsed by him, and distributed to such shareholders. The proper construction of either is substantially the same, viz: that such shares should be transferred through the medium of Titus, as receiver and distributer.

The first agreement was made with Hickok and his associates; but as the assignment was made to Hickok individually, this supplemental agreement was taken from him, for the evident purpose of securing the performance of the first. At any rate, the transfer of the leases to Hickok, in execution of the agreement of the 21st, was a sufficient consideration, if any was required, for his undertaking.

But what is more significant, the defendant does not ‘question, in the answer, the validity of either instrument, but asserts the agreement in terms almost precisely the same as those employed in that of Hickok as assignee of the leases. The language of the answer is as follows: “And the defendant, further answering, admits that it was contemplated that the interest of the new company, proposed to be formed, should be divided into 4,000 shares of stock, and that said Hickok and others, as a part of the consideration of said assignment of said leases, agreed to and with the complainant, as president of the Baltimore Mining Company, that on the formation of said proposed new company, 800 shares of unassessable stock in the same, to be numbered from 1 to 800 inclusive, should be issued to the president of the Baltimore Mining Company, to be endorsed by him, and distributed among the shareholders of said company; and that said new company should be organized, and stock should be issued, within sixty days after the date of said agreement.” The defendant also alleges that such company, viz: the Yulcan, was accordingly organized; that the stock was divided into shares as contemplated, and that 800 unassessable shares were to be alloted and transferred to the Baltimore Company; and further that the Vulcan Company has ever been ready to perform such agreement, and, after the perpetration of the frauds complained of in this bill, actually made out certificates according to the terms of such agreement, which are now ready for delivery..

Thus it appears that the defendant does not seek to repudiate this agreement of the 23d of November, and I see no good reason, in morals or equity, why we should volunteer to do so for it, even if it differed substantially from the first.

Now, by either, or both instruments, Titus was made the intervening party between the two companies, and, as such, was authorized to demand the certificates of stock for distribution. The Yulcan Company is bound to recognize him as such, for it is bound to execute the agreement under which it acquired the title to the locations 26*7 and 269, and which had been fully recognized in its articles of association; and it can not question his right to demand that the certificates of stock should be issued to him, as its agreement is executed by issuing such certificates, in such form as he shall require. It is not concerned in any thing beyond this; the distribution of such stock alone concerns Titus and the members of the Baltimore Co., and the Vulcan Co. must be content to fulfil its engagements without asserting, to excuse the nonperformance of its contract, the rights of another with which it has no concern, and by which it can not be affected, if such contract be executed in either form.

Titus, then, was regarded by the Yulcan Company at its organization, and is so recognized by the defendant, as the person to -whom the certificates of stock were to be issued, and it was the clear duty of such company to issue them to him. With their ultimate destination it had no concern, and the insertion in the articles of the purposes for which he would recebe them, was merely declaratory of the relation of Titus to his company, and neither conferred right, nor imposed obligation upon the Vulcan Company.

The complainant is, then, the trustee of the Baltimore Company, for the purpose of receiving’ and transferring the certificates of stock, and for demanding them, if not delivered according to the agreement; and so the Vulcan Company evidently regarded him; and such is the substantial admission of the defendant in the answer. It is this demand which he makes by his bill.

Such being the case, 4Titus, as such trustee, had the right to file this bill without making the Baltimore Company, or its stockholders, parties, upon the well settled rule of pleading in equity, that if the mere object of the suit is to get into the hands of the trustee the property which is to be enjoyed by the cestuis que trust, the latter need not be made parties: — (See Calvert on Parties 8, 212, 213). In this state this rule has been repeatedly recognized. Thus, in Sill v. Ketchum, Harr. Ch. 423, it was held that cestuis que trust are not necessary parties when the only object of the suit is to reduce the property into possession; and Cook v., Russell, Ibid. 443, is to the same effect. In Morey v. Forsyth, Walk. Ch. 467, the Chancellor held that, where it is no part of the object of the bill to affect the existence of the trust, or the trust property, except to place it in the hands of the trustee, who can not, until then, execute the trust, it is not necessary to make the cestuis que Prust parties. The same rule is recognized by Curtis J. in Hall v. The Sullivan R. R. Co., cited in 21 Law Rep. 138, and in Shaw v. The Norfolk R. R. Co., 5 Gray 162. In this latter case the objection for want of parties was taken by demurrer to tbe bill, and was very ably discussed at the bar; many of the same arguments being .urged which counsel have urged before us in the present case. But the court overruled the demurrer, holding that, in a suit by a trustee, when the different interests involved in the suit may be fairly and fully represented and tried without joining all the parties interested, a strict adherence to the general rule is not required, and that the cestuis que trust need not be joined with the complainant when he asserts no adverse claims to them, but on the contrary seeks, as their representative, to enforce the trusts created for their benefit, and 'in which they all have a common interest.

The true rule in this class of cases is, in my judgment, that it is sufficient that the court has before it the person or persons who are full representatives of the parties beneficially interested in the subject of the suit; and that in all cases, and especially in those where the objection is not taken by demurrer, but in the answer, or at the hearing, if the court can make a decree which will dispose of the rights of the parties before it, [without injuriously affecting those of others not parties, it will do so; but if not, and the objection be not taken preliminarily by demurrer, it will direct the cause to stand over that new x>arties may be added. I know of no 'other rule under which substantial justice can be done.

It is further objected that the bill is fatally defective in not making the Vulcan Mining Company a party defendant. If such were the case, I should not, for the reasons already stated, dismiss this bill, but order the cause to stand over until such company could be brought in. But I do not regard this objection as tenable. The theory of the bill is that such company is already a party; the defendant being the Vulcan Company in fact, but acting under a new name: and it would not only have been inconsistent, but absurd, in the complainant, under this theory, to have framed his bill differently in this particular. The defendant alleges that the Minnesota and Vulcan companies are not identical, and this is the great question to be determined in the case; as the complainant can only have relief upron establishing such identity.

In my view, all necessary parties are before the court.

The remaining question is, whether, upon the case made, the complainant is entitled to have from the defendant the relief prayed. The solution of this question depends upon that of two others: 1st. By whom was the one-half of location 98 purchased from the Ontonagon Company? and 2d. What is the Minnesota Company?

From a careful consideration of all the evidence, I en. tertain no doubt but that the purchase was made by and for the Vulcan Company. To my mind, thl internal evidence, afforded by unquestioned facts, that such is the case, is overwhelming; while the testimony of the witnesses, conflicting as it may appear, may and can be reconciled upon this hypothesis, and upon no other. Now, those who associated as the Vulcan Mining Company had full knowledge of the terms of the purchase from the complainant, and consequently that he, and those he represented, would have a one-fifth interest in all the stock of said company. With this knowledge they organized for the purpose of prosecuting mining operations, not only' upon the locations pui’chased from him, but also upon any other lands which the company might lease, locate or buy, for mining purposes. Under this organization, the 800 shares of unassessable stock were set apart, in the articles of association, to be transferred to the complainant; and the necessary effect in equity of this appropriation of shares, as well as the undoubted intention of the company, was to confer upon him, and his cestuis que trust, the one- fifth interest in all its operations, upon any and all locations it might acquire. Operations were commenced upon the locations first p>Ri'chased, but no success followed, and the pro]eot of procuring one or more other locations was agitated, as will appear from facts to which I will presently advert.

It must now be borne in mind that Knapp was the agent of the Vulcan Company in conducting- its operations; and that Hickok, as treasurer, and owner and representative of the majority of the stock, was the active director and correspondent at New York.

In July, 1841, Knapp received instructions to visit and examine the Algonquin mine, with a view to its purchase. He went, and upon his return examined the Ontonagon location, and ascertained that it was the most valuable, and a desirable purchase. Finding that it could be procured at a comparatively low rate, he started for New York to report, and to recommend its purchase. When he reached Detroit, he made some inquiries respecting the probable chances and terms of its sale, and visited the complainant at Jackson, laid the matter before him, told him of Ms purpose'and object in going to New York, and induced him to accompany him to Detroit, introduce him to Bates, and assist in negotiating .with him respecting such purchase. All tMs being done, and having obtained the desired information, he repaired to New York, and laid the matter before the Vulcan Company. This was about the 30th of September, and the records of the proceedings of the company at a meeting on that day, as well as the testimony of Hickok, Barry, Pearsall, Smith, and Knapp himself, are relied upon by this defendant as evidence that the purchase which he subsequently made, was not authorized by the company, nor made by or for it. These records show only that he was instructed to make inquiries as to the possibility of purchasing the whole, or a part, of the Ontonagon location No. 98, and to communicate the result. But this record, I am satisfied, as every one reading the testimony must be, does not contain a full history of [the proceedings, nor give a correct impression of what .was done. At this time the Vulcan Company unquestionably contemplated making the purchase, if practicable, but whether of the whole, or of a part, and whether alone, or in association with the Baltimore Company, was a question of serious difficulty; as Knapp had informed the meeting that he had proposed to the complainant that each company should buy one-half; but, as the evidence shows, Hickok said that “it would be better to keep in with the complainant, as he would be of great service in effecting the purchase.” This advice of Hickok was evidently acted upon, and Knapp was instructed to conduct the negociation in such manner as not to ai’ouse the suspicions of Titus; to secure his aid, and finally purchase the one-half of the location for the Vulcan ■ Company, refusing, when all was ripe, to 'allow the Baltimore any connection in it as a joint purchaser. - This, from a careful examination of all the testimony, I have no doubt, was the first scheme of fraud, to be followed subsequently by another.

Now Galloway, who acted as Secretary pro tem. of that meeting, and ought to be presumed to have understood what was done, testifies clearly and undcrstandingly that Knapp was authorized by the company to make the purchase, and "that he did so, as the matter was understood in the office of the company, and as he himself understood it: That Knapp went up to Detroit for the purpose of purchasing the one-half of the location, and did purchase it from Bates: That after the conclusion of, the matter, some of the Vulcan Company did not want to have Titus have anything to do with it, and that it was talked about changing the matter after it was concluded, but that Hickok thought the ’ best way would be to undo that bargain, and have the matter taken out in his own name — that is, have the lease assigned to him, and he would turn it over to the parties of the Vulcan — and it was so done, as he, Galloway, understood. Thence, he says, sprung the Minnesota Company.

By the parties to the Vulcan Company was evidently intended the holders of the assessable shares; and, as neither Titus nor the Baltimore Company were parties by subscription to the articles of association, and the stock agreed to be transferred to him had been withheld, neither he nor the Baltimore Company were considered to be parties in the company within Hickok’s scheme. He further says, that the rights of the Vulcan Company were claimed the same as in the Minnesota; and it was agreed and understood that the parties in the Vulcan had the same rights in the Minnesota. My limits will not permit me to quote more largely from his testimony, but the irresistible conclusion to be drawn from it is, that the purchase was made by • the Vulcan Company, and that, by an arrangement subsequently made among “the parties to the Vulcan,” as they were styled, the assignment of the lease was taken to Hiekok for the use and benefit of such parties, and for the purpose of excluding Titus and his cestuis que trust from participation in the benefits of the purchase. Galloway was not, and could not, have been mistaken in this, and he is strongly corroborated by the testimony of Knapp and others, and by the facts sur. rounding the purchase itself.

Now there is, and can be, no doubt but that Knapp negotiated with Bates as the agent of the Vulcan Company, and, as he himself understood, with ample power to purchase. This appears from his own testimony and that of Bates, as well as of Galloway and others. He procured the assistance of Titus, giving him to understand that he was acting by authority of the Vulcan Company, and that Titus was interested, at least as the representar tive of the 800 shares, in promoting the purchase. Titus never doubted this; nor did Knapp, until his interests and those of the other witnesses for the defendant, demanded another construction to be placed upon the transaction. Knapp, in his testimony, says that neither himself nor the complainant liked the shape of the instructions which were given to him about the purchase of location 98, and that he and Titus wanted the contract from Bates to run to the Vulcan and Baltimore Companies, but that he told Titus he must abide by his instructions. What those instructions were we have already learned from Galloway; and his testimony, and that alone, explains this of Knapp, which is inexplicable without it. It was to secure Titus’ aid through his interest in the Vulcan, and yet exclude the Baltimore Company from joining in the purchase.

Knapp says, that after the price was agreed upon, a memorandum of the agreement was drawn up and signed by Bates on the part of the Ontonagon, and by himself on the part of the Vulcan Company. He speaks of this afterwards as the first contract, implying that another was subsequently made. In sjmaking of an interview with Conger (who, as a member of the Baltimore Company,, assisted him, together with Titus, in the negotiations with Bates), in which interview it appears that Conger was desirous that the Baltimore Company should be permitted to join in the purchase, he says: “I think I told Conger that it did not correspond with my instructions from, the Vulcan Company, and that I must abide by my instructions.”

We now come to the second, or what the defendant claims to have been the real, contract.

After this first contract was made and forwarded to the company, Knapp went to the Sault St. Marie’s with supplies for the company; and then, upon advice, as he says, returned to New York, to see that the bargain was all closed up with the Ontonagon. When he reached New York, he says, he was informed by Hickok that a general difficulty existed in the company, which had increased since he was there in September, and the members had refused to ratify the contract made with Bates. He says he did not know what to do then, (but what the dilemma was, knowing as he did them ultimate designs, he does not inform us), but he says that he finally persuaded Hickok to purchase in his own name, and it was so done. This is precisely the consummation to be looked for if Galloway’s testimony is true, and we have here the machinery laid bare by which the complainant was kept quiet, and his aid secured so long as needed, and then the pretended repudiatipn of the contract, that the purchase might be ostensibly made by Hickok.

Now, after this interview in New York, in which Hickok was persuaded, and, as he would have us believe, reluctantly persuaded, to make this purchase in his own name, Knapp returns to Detroit, and has an interview with Con.ger, and he says that “Conger very strongly objected to the way in which the papers were to be made out, and seemed very much displeased with the way they were to be executed. He said that, in the way the papers were to be executed, it just cut off the Vulcan and Baltimore Companies entirely. I told him that I was satisfied that it would all be right, and that the Vulcan Company would finally have the purchase. I told him” (and here is the key to the transaction), “that if the Baltimore Company would pay their proportion' — them pro rata of the eight hundred shares which they had in the Vulcan Company — that such company would take the locationjoff Mr. Hickok’s hands:” in other words, as I read this testimony by the light of the well established facts in the case, the Vulcan Company purchased through Hickok, but with] the intention of so holding the location as to cut off those entitled to have the eight hundred shares from participation in it, unless they would contribute towards such purchase — a condition directly repugnant to the contract and articles of association under which such shares were acquired.

Now, there was not only a meeting of the stockholders ■on the 20th of September, but one of the trustees on the 21st, to which I shall hereafter more fully allude. Of what transpired at this latter meeting we have no direct information, hut Knapp, who was present at both, evidently knew all, and his statements to Conger have great signi, ficance in consequence. He knew both the nature and extent of his powers, conferred at either the one or the other meeting, and he also knew, and his testimony shows,, that the understanding was that the Vulcan Company was and should be the actual purchaser of the one-half of 98: that it should never be the private adventure of Hickok, or of any person except their own association. The knowledge of these facts enabled him to say to Conger that he was satisfied that it would be all.right, and that the. Vulcan Company would finally have the purchase; for he well knew that it was made for it.

There is another important fact which characterizes this purchase. Titus not only assisted Knapp in making such purchase, but he was the drawer of- one, and the endorser-of the other of the drafts given in payment; thus rendering that valuable service which Hickok suggested, at the meeting of the 20th of September, he might afford, and which, the company expected he would.

I can not reasonably suppose that the complainant would have done this, had not the purchase been made by the Vulcan; nor can I appreciate the reasoning which maintains that, after this aid, the company can equitably deny his right to participation in the purchase, or that of his cestuis que trust. All the facts attending the transaction show that he was acting for such company in assisting Knapp, and in lending his credit to effect the purchase, and that it was by the procuration of its agent that he so acted; and the company ought not to be suffered, upon any technical pretext, to deny in a court of equity the validity of the purchase thus made, nor to escape the responsibility to him, and those he represents, growing out of it.

But this is [not all. While Knapp was in New York, although it had been assertained that operations, if continued upon the locations 26'7 and 269, would be useless and fruitless, the company voted to continue mining operations during the ensuing winter. This is inexplicable if the company did not design to purchase location 98 from the Ontonagon ; as Knapp tells' us that he informed the company that these locations were worthless, and that further operations upon them would only result in a squandering of money. We know too much of the members of the company to believe they would pursue such a course; and we accordingly find that Knapp, as soon as the purchase from the Ontonagon Company was made, removed the men and supplies of the Vulcan Company from these locations on to the new purchase, and there carried on operations in its name until the next summer. There is [no direct evidence that the company knew that he had abandoned the old and was operating upon the new location, until some time in the spring of 1848; but no one can doubt that it was known and contemplated that he would abandon it for operations upon the newly acquired location, if the purchase from the, Ontonagon should be made; and it is evident from the proceedings of the meeting of the 6th of December that his doings were then known. The resolutions of that meeting, that the company would cease operations for the present, and calling upon Knapp for an account, have no effect upon my mind, in the light of the facts already adverted to, to establish either that the Vulcan Company had not authorized his course, or that it had been repudiated.

Cash, who acted at location 98 in behalf of the Ontonagon Company, distinctly states that it was put into the possession of the Vulcan Company; that notes were given in the name of the Vulcan Company to men who had claims against the Ontonagon Company, to induce them to abandon opposition to the transfer, and that he had an account with the Vulcan for supplies, .&c., furnished in the spring, and not with, the Minnesota Company, until in the summer of 1848. Knapp also, during all this time, made contracts in the name of the Vulcan Company, relating to the working of the mine upon such location, and gave notes in its name, and drafts upon it; and we have no evidence that they were ever repudiated by it. Even as late as the 18th of April, 1848, Knapp, as agent of the Vulcan Company, informed Bates that on examination the Vulcan Mining Company had selected the north half of location No. 98 as its choice between the two halves; and all this occurred after the pretended individual purchase by Hiekok, with all the particulars of which Knapp was fully conversant. Can there remain any reasonable doubt, upon all these facts, as to what party purchased this location?

But we are referred to the testimony of certain persons who afterwards associated in forming the Minnesota Company, and in diverting this purchase from the uses originally contemplated, to show that Galloway is mistaken, and that the Vulcan Company never made such purchase.

I will hastily glance at the testimony of some of these witnesses. And first at Hickok’s. I regret exceedingly that the limits of an opinion will not suffer me to place, his testimony and that of Galloway in juxtaposition. In almost every particular they are variant. Hiekok is positive that the Vulcan Company did not purchase from the Ontonagon; Galloway is equally positive that it did. Hiekok is remarkably clear $nd distinct in his recollection of the proceedings of the Vulcan Company at the meeting of the 18th of October (to which I shall again allude): Galloway, who was secretary of the meeting, knows nothing of the facts Hiekok so mimitely details. Galloway’s testimony squares with all the ascertained facts of the case; Hickok’s with none, except those which promoted the fraud he was active in perpetrating. •

The first contract was made by Knapp somewhere between the 20th of September and the 1st of October. On the 21st of September, the day after the meeting at which the defendant claims that all the authority was given to Knapp which he ever received, and the day on which the trustees of the company held a meeting, to which I shall presently allude, Hickob, in the name of Hickob & Co., wrote to Titus that Knapp had a “kind of carte blanche” from the company to operate as he should “deem would best serve the interests of the stockholders,” and that the matter in regard to the purchase of this location had been left with him, to make, if possible, his negotiations in Detroit. He states further, that the Vulcan Company had the fullest confidence in Knapp’s operations. On the 12th of October, Hickok writes an official letter as treasurer of the Vulcan Company, to Bates, in which he says “Knapp was duly authorized to make any purchase for the Vulcan Company that he deemed best for their interest, and in the purchase of one-half of the Ontonagon location, the trustees approved his course,” &c. “ When I forward the certificate of deposit,” he says: “I will also send a special power of attorney, for you to have executed by the trustees of your company, for you to convey to the Vulcan Mining Company the one - half of said location.” This is the letter which, he says, was so bitterly condemned by the company on the 13th, and yet the minutes of this meeting of the company (upon the silence of whose record so much reliance is placed by the defendant at other times) is totally silent upon this subject, except to state that communications were presented from Knapp, its agent, and Bates and Titus, which were directed to be entered on file, and the meeting adjourned. Certainly we could hardly draw an inference of disapproval or of repudiation from this entry.

On the 30th of October, he writes to Titus that he thinks Knapp’s course (in making the purchase, without doubt) a very prudent one, and of the highest importance to the company, and he then makes him a proposition for the swindling of both the Baltimore and,Vulcan Companies, in which he recognizes the complainant’s interest in the purchase. It is as follows, “I have the following proposition to submit to you, which can be carried out, and with the same benefit to you and to our firm. It is this It shall be represented by others that your company has, abandoned its location, which you can credit. I will make the same representations here, and manage to buy up all the stock. During this time, however, your company can be at work on such part as Mr. Knapp will set aside for it, on the Ontonagon location. You and I will arrange the preliminaries with regard to a part of location purchased from the Ontonagon Company. You can then submit the proposition agreed upon, and I will put it through for you. I think this plan will be as advantageous for your company, and such a course would be more satisfactory to the members of our company, so long as they did not know the object, which of course they could not.”

Now, did Hickok believe when he wrote this letter,, that the members of the Vulcan Company, at the meeting on the 13th, had so severely censured his letter to Bates, of the 12th, and had then repudiated the purchase ? or what did he mean when he tells Titus he can submit the proposition agreed upon, and he will put it through for him? If the Vulcan Company had repudiated Knapp’s acts in the purchase, and it was to be made by him in his own right, as the defendant would have us believe, I am at a loss to know to whom Titus’ proposition could be made, or with whom Hickok would put it through,, except himself; or who was to be satisfied except himself, To my mind this letter establishes the fact, that his purchase was in behalf of the company, and excludes his testimony from any claim to consideration, as contradictory to that of Galloway.

Mr. Barry does not regard the proceedings of the meetng of the 20th of September as having conferred any authority upon Knapp to purchase for the company; but quite the contrary; and he regards the purchase as having been made by Hiclcok on his own account. That he is truthful I do not doubt, and so is Galloway; but. he evidently mistakes the discussion of the members for the action of the company. But Barry was absent from the meeting of the 13th of October, and this fact renders his testimony of comparatively little value, when weighed against that of Galloway and Knapp, as well as against every fact attending the purchase, and the course pursued by Knapp at the time, and long subsequent to the purchase.

So far as he, Pearsall and Smith, are concerned, they are clearly mistaken, both when they say that Knapp was not authorized to purchase, and that Hiekok purchased on his individual account. I have, I trust, already sufficiently shown that they must be mistaken as to Knapp’s authority; and as to the purchase by Hiekok, of which they speak in equally positive terms, they are contradicted by his and their own deliberate admissions, as well as by the whole internal evidence of the case. Now, Hiekok in his assignment of the lease of 98 to the defendant, among whose members were Barry, Pearsall, Smith and Knapp, expressly admits that he did not purchase for himself — his language being, “and whereas the undersigned made and held such purchase as trustee for himself and the persons who have formed an association,” &c. — and these witnesses, in the articles of association of the Minnesota Mining Company, over their own signatures, admit as follows: “The undersigned, parties to this instrument, having purchased through Wm. Hiekok,” &c., the property in question. Of whatever little value this evidence may be for other purposes, it shows the understanding of the defendant’s witnesses of the character of Hickok’s purchase, and fortifies, to the fullest extent, Galloway’s testimony. There is evidently something of the meeting of the 20th of September suppressed, or what is perhaps more probable, forgotten by them. But however this may be, there was another meeting, to which I have already alluded, the proceedings of which are not given to us, except by the general minutes of the company, kept as in other instances — (Titus could not, and the defendants have not given them) — which might explain and clear up the whole matter. The trustees were authorized by the articles of association to make this purchase. They had a” meeting on the 21st of September, at which Knapp was present, and it is not impossible that the instructions and authority to him, of which he speaks to Titus, Conger and Bates, were then fully given to kim. That he had such, and acted upon them, can not be questioned ; and Hickok’s letter to Titus respecting Knapp’s authority, in which he says he has carta blanche, &c., to which I have already alluded, was written upon that day, and evidently after some meeting at which authority of some kind had been conferred upon Knapp. Galloway may have confounded, in his recollection, the proceedings of the two meetings ; and this fact may enable us to reconcile much of the apparent conflict of testimony.

Be this as it may, I have no doubt, from all the evidence, that the purchase of the one-half of location No. 98 was made by the Yulcan Company, and that everything done thereafter, and until the organization of the Minnesota Company, was for the purpose of keeping the complainant and the other shareholders of the Baltimore Company, entitled to have the one-fifth interest, from sharing in its benefits. Had the speculation turned out worthless, I have no idea we should ever have heard of this defense.

Although the Minnesota Company may now comprise many members who were never in the original company, yet it is, in fact, so far as this location and this complainant are concerned, the Yulcan Company; and it would be a disgrace to equity if it could not tear off so flimsy a covering for fraud as overspreads this transaction, or that substance and facts should be sacrificed by it to a name.

The defendant, to avoid the consequences of this construction of the purchase, insists upon various strange, and in my judgment, inequitable defenses. Among others, that the Vulcan Company is still alive, having an independent existence, and ready to perform its contract with the complainant. This may be; but except as it lives in the Minnesota, no galvanic power can endow it with motion.

It is also insisted that, under its articles of association, the Vulcan Company had no right to make the purchase. If the Minnesota Company is not the Vulcan, it has no interest in litigating this question; nor can the existence or non - existence of such right affect it. But if it be the same, a defense which is fraudulent in its very character, one by which a portion of the association, asserting and insisting upon the validity of the purchase as to themselves, deny its validity for the purpose of defeating the asserted claims of others to participation in it, should be spurned from a court of equity.

It is further insisted that, by the conditions of the purchase from the Baltimore Company, the association to be formed, and in which the complainant was to have the interest of 800 shares, was to be formed upon the basis of the locations so purchased; and that if the Vulcan Company extended its operations beyond, the Baltimore might be excluded therefrom, as no consideration moved from the latter except so far as operations upon the locations sold by it are involved. As already remarked, this defendant, unless it be the Vulcan in fact, has no interest in, nor can it litigate, this question. If otherwise, the answer is, that it can not be permitted to repudiate its own deliberate engagements. The locations purchased from the Baltimore Company were the basis, it is true, of its organization; but by no means the limits of its operations. When the Vulcan Company framed its articles of association, it was with this understanding, and with a full knowledge and understanding of its obligation under the contract with. Titus. This was to assign to him the one-fifth interest in its stock, as a 'part of the consideration for the purchase of locations No. 267 and 269. This stock would confer upon its holders rights co-extensive with the operations of the company. The company was obligated to embrace such locations within the field of its operations, but was by no means to be restricted to them. By the articles of association, provision was made for extending them if found desirable; and I apprehend if such had been done by the unquestioned purchase, by the company directly, of this location 98, and the works had been extended over it, and no Minnesota Company had been formed, no one would claim that the eight hundred shares of stock, if they had been transferred, would not have entitled Titus and those he represents to a full participation in all the benefits of such purchase, and this upon the ground that, under the contract, and the articles, they would be unqualifiedly entitled to it. It is the fraud of the defendant that obscures this question. The contract with Titus was, not that he should have 800 shares of stock which would entitle the holders to such proportionate rights and benefits as might result from mining upon these locations; but it was that he should have those shares of the stock of the company, unqualified by any limitations, whether its operations should be circumscribed by the limits of these locations, or expanded over others which might be procured. In relation to this interest, Titus and the Baltimore Company do not stand as purchasers, seeking to enforce the specific performance of a contract, but as vendors from whom the whole consideration has passed. No consideration moved from Titus as a purchaser of the stock, as that was a part of the compensation to be paid for the locations he sold; and this one-fifth interest in all the operations of the company, was as essential a portion of such consideration as was the $4,500 of cash. It was, I admit, as to this, an adventure, in which all embarked with full understanding of the risks and perils to be encountered; but I can not understand by what course of reasoning equity can allow the success of such adventure to justify the repudiation of the obligation which was created as a part of the adventure itself.

But, if the fact were otherwise, and the consideration moved from the complainant, yet upon every equitable principle, if the purchase was made by the Vulcan Company, he is entitled to his stock, and the full benefits it will, by the articles and the company’s operations, confer. I confess that I can not understand the reasoning, even upon this assumption, by which the proposition is sought to be maintained, that one who enters into an association or co-partnership upon an originally equal footing with its other members (as eyery holder of those 800 shares would), must pay additional consideration if he would participate in its expanded operations, and such as are within the scope of the original articles under which he so enters. But the defendant in the answer does not set up any such defense, but -denying its identity with the Vulcan, is yet willing to deliver the stock. I know no good reason why it should not be taken at its word.

It is also claimed that the members of the Vulcan Company had a jmrfeet right to form an independant association, for the purpose of conducting mining operations upon such land as they might acquire, or to unite with other associations. It is unnecessary, nor am I disposed, to deny this proposition. But a portion of them have no right to take a portion of the common property, and appropriate it to their own use, in derogation of the rights of others. The Vulcan Company need not have included in its articles a provision for extending its operations to other locations than those purchased from the complainant, or it might have stricken out such provision; but so long as it remained, it was binding; and the purchases made under it enured to the common benefit of all its stockholders, and of those to whom it had contracted to convey stock; and could not be diverted by a part. If the Vulcan Company had not bought this one-half of location 98, no question of the right of this defendant, or of its members, could arise; but when, as I think is clearly proven, it was purchased by the company, none of its members less than the whole, no matter what name or new organization they may assume, can appropriate it to individual purposes, or deprive their associates of participation in the benefits growing out of it. It is further claimed that, although had the company made this purchase with its own funds the complainant would have an equitable as well as legal right to participation in it, yet as it was paid for by I-Iickok, no such equity or right exists in him. If such purchase was made by and for the Vulcan Company, the fact that Hickok advanced the payment for such conxpany, can have no effect to deprive a portion of the members of the company of their rights in common with all, nor to enable such company to deprive one already entitled to stock, of such stock. If the advance was made by Hickok for the company, it was still a payment by the company, so far as the rights of the members, as between themselves, and those of Titus, as against it, are concerned; and, although Hickok may have a claim against the company for such advance, yet one portion of its members can not exclude another portion, whether stockholders in fact or by contract, from a participation in the purchase upon that ground. Titus himself drew and endorsed the paper which was given to Bates upon the purchase. Had he, instead of Hickok, taken it up, and he and his friends appropriated the property, as Hickok and his friends have in the present case, I apprehend that quite another view would be taken of this question by those who Would then be the defrauded members of the company. But it may be said, Hickok also had the title; but the answer is in his own words, he “made and held such purchase as trustee,” and he could assert no such rights as against his cestuis que trust, whom I find to he the Vulcan Company. I can conceive of no rights which a portion of the company can assert against others, growing out of the fact of the advance of the payment by Iiickolc; and no equities existing in favor of one portion who have not paid, against another portion in the same dilemma.

I think the decree of the court below should be reversed, and a decree rendered for the complainant.

Cheistiancy J.:

I express no decided opinion in this case as to the sufficiency of- the bill on the question of parties complainant, though I am inclined to think it defective in this respect, and have no doubt it is so as to parties defendant.

But I shall not go into the question of parties at all; since, if all proper parties were before the court, yet, upon the merits, as exhibited by the pleadings and proofs, I am wholly unable to discover any equity on the part of complainant or his associates, the Baltimore Company, which can authorize him or them to call for relief in a court of chancery. Upon the merits, therefore, I concur in the result with my brother Manning, and generally in the vietvs he has - expressed upon the evidence, and the reasoning he has adopted, so far as it extends. I shall therefore confine myself to a few plain principles, which I think exercise a controlling influence upon the case, and shall avoid all matters of detail.

The bill is in the nature of a bill for the specific performance of a contract; it is an appeal to the sound discretion of the court, and to be sustained, if at all, upon the broad principles of equity. It is not a case in Avhich the court is compelled, by the forcé of an iron rule, contrary to its sense of justice, to aid in enforcing- a wrong, under the name and guise of a judicial proceeding. And whatever may be the technical legal rights of the complainant, if his claim should be found unconscionable — if the facts of the case are not such as to create any moral obligation on the part of the defendant, and the relief asked would violate rather than secure the just rights and real equities of the parties — relief should he denied.

If the complainant (and I use his name as including and representing the Baltimore Company) has any equitable right to the eight hundred shares of stock, claimed from the Minnesota Company, that right must be based upon some consideration. The only consideration, upon which all his equities rest, was the transfer to Hickok and his associates (afterwards constituting the Yulcan Company) of the Baltimore leases or locations, No; 26'7 and 269; and the claim rests exclusively upon the agreement with Titus (or the Baltimore Company) for the formation of a mining company, “on the basis of these locations,” and for the issue to the Baltimore Company of the unassessable stock in the company so to be formed.

The consideration which the complainant’s company received, for the transfer of these locations, was four thousand five hundred dollars in cash, and the agreement for the eight hundred shares of stock to be based upon these locations. And the only consideration which Hickok and his associates received, for the four thousand five hundred dollars paid .by them, and for their stipulation to issue the stock, was the transfer of these locations to them. The eight hundred shares of stock were to be unassessable; and of course complainant’s company were not to be called on to contribute to the expense of mining operations by the company to be formed; but the whole of that expense was to be borne by the other four-fifths of the stock. This was upon the ground that the excess in the value of these locations, beyond the four thousand five hundred dollars, was considered an equivalent for the amount to be contributed by eight hundred shares of stock, in tbe prosecution of mining operations by tbe company, for the whole time the company should continue in business. This was the amount put at risk by complainant and his associates in the common enterprise ; and the four thousand five hundred dollars paid by Hickok and his associates, together with all the expenditures to be made in the prosecution of the contemplated mining operations, was the amount to be put, at risk by the latter in the same enterprise. These risks were connected with and undertaken on the faith of these locations alone, and all parties looked to the profits to be made from mining upon these locations only, for reimbursement. None of the parties, by this agreement, contemplated the formation of a company for mining in any other place, nor that the stock to be issued to complainant and his associates was to rest upon any other basis. To this extent, and to this only, Titus and associates had paid a consideration or equivalent for the exemption from assessment on the eight hundred shares of stock they were to receive; and the obligation -entered into by Hickok and his associates, was exactly co-extensive with this consideration. There was no consideration, nor any stipulation for stock, which was to rest upon the basis of mining elsewhere, or which contemplated the purchase of other locations.

But Hickok and his associates, the Yulcan Company, in framing their articles of association, went beyond the obligations of their contract with complainant; and, after declaring the purposes of the company to be the prosecution of mining operations upon these locations, add the words, “or any other lands in said mineral district that may be leased, located or bought by the association for mining purposes,” — thus providing for the case of a purchase of other locations not contemplated by the agreement with complainant.

Neither Titus nor any of his associates signed these articles, though he individually, by the original agreement, had agreed to take one hundred shares in the company to be formed.

Now, so far as these articles went beyond the original contract, and provided for the purchase of, or for mining upon, “ any other lands,” &c., they were without consideration, purely voluntary, and created no obligation on the part of Hickok and his associates, the Vulcan Company, to Titus and associates. The latter were no parties to this additional provision, were not bound by it, and could not claim to bind the Vulcan Company by it.

The Vulcan Company were at liberty the next day, or the next year, to strike out this provision from the articles, and Titus and his associates could have no right to com-, plain.

If the Vulcan Company should attempt to divert any of the company funds to the purchase of a new location, the Baltimore Company might, by reason of their interest in that common fund, restrain them from so doing, and confine their operations to the scope of their contract. But, if the Vulcan Company had already so appropriated the common fund, the Baltimore Company might probably either call for an account and repayment of the fund so misapplied, or elect to ratify the act, and take their shares in the new adventure in which it was invested.

But I think it entirely clear, upon the evidence, that no part of the company funds was ever diverted to the purposes supposed; and, as I shall more particularly notice hereafter, at the time when the Ontonagon location was purchased, the Vulcan Company had no common fund in which the Baltimore Company could have any interest whatever.

There was nothing in the nature of the contract with complainant-, nor in the relations created by the articles of association, to prevent the individual stockholders from becoming stockholders in any other joint stock company for mining purposes. These stockholders, or any of them, had a perfect right, at any time they saw fit, to form a new company, and to take shares in it exactly in proportion to their shares in the Vulcan Company, or in any other proportions. In forming such company, they had a right to choose their own associates; and any such stockholders in the Vulcan Company who might choose to form a new company, and to purchase a new location, were' under no obligation to inform their other associates of their intention, nor to give them the chance to share in the new adventure. In this respect, I think the law is not so stringent as applied to stock companies as it is to partnerships under ordinary articles of co-partnership. Stock passes, and is intended to pass, from hand to hand in the market; and there is a change in the membership as often as the stock changes hands. There is no implied obligation or duty to refrain from entering into any other adventure of a similar character, with other associates. At all events, even upon the score of strict partnership, the stockholders of the Vulcan Company who might see fit to purchase a new location with their own individual means, and without using any common fund in which the Baltimore Company had an interest, could be under no obligation to admit the Baltimore Company on any better terms than those on which they had been admitted to participate in the stock of the Vulcan Company to be based upon the Baltimore locations. For their unassessable stock, based upon these locations, they had contributed what was deemed and agreed upon at the time, to be their just proportion or equivalent; and if they sought to participate in this new location, and to hold stock based upon it, it should be upon the terms of paying their proportion to this also. But neither the bill nor the evidence makes any such case; nor is the claim of the complainant and his associates based upon any such ground. They do not ask, nor, so far as it appears, were they ever willing to participate in the purchase on such terms, or to put a dollar at risk on the faith of it. But. they seek to. participate in the chances of profit, without the hazard of' loss, and without paying or offering to pay a dollar.

The process of reasoning by which this claim is sought to be supported, when analyzed and reduced to plain English, is this: “Titus and his associates were allowed to participate in the Vulcan Company, and to hold unassessable shares in its stock based upon the Baltimore locations, because they had paid for this privilege by the con-, veyance of these locations to the company; therefore they have the right 'to participate in the profits of the Ontonagon location, bought with the money of others, and to hold unassessable stock based upon it, without the payment of any consideration of equivalent whatever.” And this claim, standing upon this basis, is gravely termed an equity; and the refusal of those who have paid their own money for the Ontonagon location, to recognize this claim, and their various excuses, pretences and efforts to avoid its recognition, have been as gravely denominated a fraud. But, before these refusals, these excuses, and pretences, however false, can entitle the complainant to any relief on the ground of fraud, it must appear that the acts complained of as a fraud affected, or were calculated to affect, injuriously, some right of the complainant or his associates. If the stockholders of the Vulcan Company had a right to do directly, openly, and in defiance of the Baltimore Company, what it is claimed they have done indirectly, then the false pretences and subterfuges to which it is. claimed they have resorted to conceal their design until accomplished, and to avoid the hostility of the Baltimore Company — though a moral wrong — would constitute no wrong of which the Baltimore Company have a right to complain, nor give that company any equities they did not before possess. Thus — for illustration — if I promise to. make you a gift of a horse, this promise creates no ob-. ligation which law or equity will enforce; and I am at liberty to refuse without giving any reason or excuse whatever. But, if I choose to give a false reason, or to resort to falsehood to induce you to believe I still intend to give you the horse, when I do not, will this convert my void promise into a valid contract, and give you any greater right to enforce your claim, based upon no consideration, when you had lost nothing by -the falsehood, and had no right which could be affected by it?

The equities of Titus and his associates were co-extensive with their contract, with the consideration they had paid, and were confined to stock in a company formed for mining upon the particular locations they had conveyed to Hickok and associates. The value of the stock they were to receive under the contract would depend entirely upon the value of these locations for mining purposes — for it is not pretended that the leases on which they were held were of any value whatever for any other purpose. At the time the contract was entered into, these locations or leases upon which the contract and the interests of all parties under the contract were based, were considered of great value. If they should prove so in fact, both parties to the contract would participate in the benefit; if they should prove to be worthless, both would lose the amount they had expended or put at hazard.

What then Avas the value of these locations, when the purchase of the Ontonagon location was made ? The whole evidence in the case shows that it had been ascertained to be nothing, and worse than nothing; a mere source of expenditure without a hope of return. This is so clear that is is not controverted; and the complainant’s claim is based in some measure upon this very fact. Under such circumstances, were the Yulcan Company under any obligation to continue mining operations upon it, and to waste money to no purpose ? Clearly not, and it is equally clear they were under no obligation to purchase another location; and if they chose to cease all further operations, no court of equity would compel them to proceed. Had. they even chosen to disband and allow the company to- be dissolved, the Baltimore Company would have had no right to complain. The value of the Baltimore Company’s interest, then, under their contract, and the value of the consideration they had given, had been ascertained to be nothing. Possibly, if the Yulcan Company had actually dissolved, the Baltimore Company might have been entitled to their proportionate share of the surplus of assets after the payment of all debts. But the evidence clearly shows there was no such surplus; that the assets were not sufficient to pay the debts,- but that these were paid by an assessment upon the stockholders.

The whole and the only enterprise contemplated or embraced by the agreement with complainant and his associates, that agreement itself, the consideration for it, the obligations growing out of it, and the equities founded upon it, must, I think, in a court of equity, be looked upon as having failed, and become extinct, and all the equitable obligations of the Yulcan Company to the complainant and his associates, as fully satisfied. The adventure had terminated, and all parties had lost what they had put at hazard.

1 Under these circumstances, if a new location was to be purchased by the Yulcan Company, and mining operations to be prosecuted upon it, it would (be an entirely new adventure, one not contemplated by the agreement with tho Baltimore Company, and to which they had contributed nothing; and there being no funds or assets of the Yulcan Company with which to make the purchase or prosecute the work, the fund for that purpose must come from the contributions of the individual stockholders; and upon principles of equity and fair dealing, the Baltimore Campany, if they would participate in the advantages of tho enterprise., should contribute their pro rata to the expense; for as yet they had contributed nothing to it, nor even contracted for any participation in it.

Admitting, then, that, under these circumstances, the Vulcan Company had, without any contribution from tho Baltimore Company, -purchased the Ontonagon location with funds contributed by all the assessable stockholders in-proportion to their stock, and tho conveyance had been taken directly to the company — which is more than the evidence shows or is claimed to show — whatever might be the strict legal rights of the Baltimore Company, or whatever claim they might have if the stock had already been issued to them — when they come into a court of equity, and ask a decree for the issue of stock which is to entitle them to participate in the profits of the new location, they must submit to the rule that he who asks equity must do equity: and this would require them to aver and prove a readiness and willingness to contribute their share of the burden. Had the Baltimore Company actually obtained tho stock before the new purchase was made, they might, perhaps, as matter of strict technical law, be entitled to tho advantage thus gratuitously and improvidently bestowed, though it would be grossly unjust and unconscionable to insist upon it. But when compelled to seek the aid of a court of equity to obtain the stock, that court should refuse to aid in the enforcement of so unconscionable a claim, and leave the parties to such remedy as they might be able to obtain upon their contract in a court of .law.

Had it been distinctly admitted by the defendant that the purchase was made by Hickok upon a full understanding and agreement with all those who subsequently formed the Minnesota Company, that he should purchase it in trust for the company so to be formed, each individually paying him their respective shares-and this is all it is claimed the evidence tends to show, and much more than I think it does show — still I am entirely unable to discover any ground, under the circumstances of this case, upon which the Baltimore Company could object, or claim a benefit from the purchase. But it seems to be supposed that becau.se Titus aided Hickok by his friendly offices (for lie paid nothing) in the purchase of the Ontonagon location, with the belief that it would ultimately be taken by the Vulcan Company,' these services are to be considered as a good consideration for an obligation on the part of the Minnesota Company, who took the location off the hands of Hickok, to give to complainant’s company the eight hundred shares of stock. And this is certainly the only consideration shown for complainant’s claim. Let us see whether this reasoning is sound.

That Titus and his company would have been greatly benefited by having the Vulcan Company make the purchase in such a manner as to let in this claim for unassessable stock, may be readily believed; as it would be so much clear gain to the complainant’s company, without expense or risk. And that Hickok and Iinapp were also anxious for such an arrangement is clearly shown by the evidence: they also held stock in the same Baltimore Company, Hickok being a large stockholder. The interests of Hickok, Knapp, and complainant were identical, and they acted in concert. If they could induce the Vulcan stockholders into such an arrangement, it would make the Baltimore stockholders permanent pensioners upon the Vulcan Company, and enable them “ to reap where they had not sown.” But all the Vulcan stockholders did not own stock in the Baltimore Company, (though a few others owned nominal amounts). To those not thus interested, or but nominally interested, such an arrangement would be grossly unjust. Still, if they chose to enter into it voluntarily, with their eyes open, all very well. But such an exhibition of disinterested benevolence was hardly to be expected in the stock market; and, it may be added, hardly to be demanded as a right elsewhere. The most conscientious men might be expected to object to such an arrangement as unequal, requiring them constantly to pay without receiving, while the other parties were to receive without paying.

Still Titus, Hickok and Knapp, had a right to make the effort, and to use all fair means of persuasion to induce the recognition of even such a claim. But the Vulcan stockholders had, at least, an equal right to refuse.

The attempt was made. Titus, Hickok and Knapp labored zealously and in concert to effect their joint object; but, as ought to have been anticipated, the Vulcan stockholders, the moment they saw the object, took the alarm, and protested. Hickok, however, still believing, his influence with the Company would enable him to obtain their consent, still persists, and undertakes to accept the proposition of Bates, for the sale of the Ontonagon location, in the name of the Company, without authority of the Company to do so. They repudiate his acts. He then, having confidence in the location, malees the purchase with his own money, and takes the conveyance in his own name, evidently still in the hope, in which Titus and Knapp also share, that the company will eventually take it off his hands in such manner as to subject it to the claims of the Baltimore Company. But the Vulcan stockholders still obstinately refuse, as any man capable of managing his own affairs would be likely to refuse, to go into an adventure upon such a basis : most of them, however, did ultimately consent to take an interest in this purchase, and, with Hickok, to form a new company on the basis of it, as I think they had a perfect right to do.

Whatever efforts Titus may have made in this matter, were made for his own interest, and that of his company; not for the stockholders of the Vulcan Company, who subsequently formed the Minnesota Company. He had spent some time, and labored faithfully, in the attempt to induce the Vulcan Company to purchase the Ontonagon location, and to bestow one-fifth of it gratuitously upon the Baltimore Company. Having failed in this attempt, shall the court now decree him that same fifth as a compensation for his time and services in soliciting the gift? If Titus could have any claim for such services, it would be against those for whom he performed them, and for what his services were worth.

If he had been about to purchase this Ontonagon location for the Baltimore Company, and had been induced to forego the purchase by the representation of the Vulcan Company or its agents, that the purchase was intended for the Vulcan Company, so as to let in the claim of the Baltimore Company for stock, the case might have presented a different aspect. But nothing of this kind is pretended.

The merits of this case, were, I think, fully met and ably presented by the Judge who tried this cause in the court below, and his decree dismissing the bill must be affirmed.

Campbell J., did not sit, having been counsel for one of ’ the parties.