In Hebberd v. Southwestern Land Cattle Co. (55 N.J. Eq. 31) it was stated that where a corporation contracted with the purchaser of its bonds to issue bonus stock "such a contract is binding upon the company and its shareholders," but that the purchaser of the stock could be compelled to pay the par value of the stock for the benefit of subsequent creditors.Summary of this case from Kraft v. Griffon Co.
W. C. Spencer, for receiver. Charles B. Meyer, for William Rearing Clare, William Clark, George A. Clark & Bro., William W. Andrews, administrator of the estate of J. W. Canfield, and Carrie M. Damon, executrix of the will of George A. Damon, deceased. Herbert J. Haff, for Germ an-American National Bank of Kansas City. John H. Clapp, for George P. Moore and himself as executor of the will of George A. Damon, deceased. Charles C. Leeds, for C. C. Leeds and W. M. Murray, trustees, himself as a creditor of the Southwestern Land & Cattle Company, and William W. Hebberd.
Action by William E. Hebberd and others against the Southwestern Land & Cattle Company, in which a receiver of defendant was appointed. Heard on petition of the receiver for instructions.
W. C. Spencer, for receiver.
Charles B. Meyer, for William Rearing Clare, William Clark, George A. Clark & Bro., William W. Andrews, administrator of the estate of J. W. Canfield, and Carrie M. Damon, executrix of the will of George A. Damon, deceased. Herbert J. Haff, for Germ an-American National Bank of Kansas City.
John H. Clapp, for George P. Moore and himself as executor of the will of George A. Damon, deceased.
Charles C. Leeds, for C. C. Leeds and W. M. Murray, trustees, himself as a creditor of the Southwestern Land & Cattle Company, and William W. Hebberd.
McGILL, Ch. The receiver of the Southwestern Land & Cattle Company, an insolvent corporation of this state, which is in charge of the court of chancery, by his petition asks to be instructed what disposition he shall make of the proceeds of the sale of certain cattle, to which particular reference will hereafter be made, and as to the validity and status of certain claims which have been presented to him. Ail persons interested in the desired instruction upon the presentation of the petition appeared by their respective counsel, and, in pursuance of their written assent, it was ordered that evidence be taken upon the issues suggested, and upon the coming in of the evidence the several parties were heard. The Southwestern Land & Cattle Company was incorporated on the 15th day of February, 1884, by certificate under the general corporation law of this state, approved April 7, 1875, and its supplements. The object for which it was formed, as indicated by its name, was, in substance, to deal in lands and cattle and their products. Its capital stock was fixed at $500,000, divided into 25,000 shares of the par value of $20 each. The certificate stated that the company would commence business with $500,000; that the stockholders were George F. Damon, Henry A. Dickinson, Effingham H. Warner, John T. Dutcher, and William T. Mersereau, each of whom held 5,000 shares, and that the company would continue 50 years. It was signed by each of the stockholders named. It appears that stock certificates for 5,000 shares each, marked in the margin, "For property purchased," were issued to the several corporators, but that cash was paid by the stock subscribers for only 5 shares each, and that subsequently the 5,000 share certificates were returned to the company, and in their place certificates for 5 shares to each were issued, leaving untransferred 24,975 shares. This transaction is styled on the journal of the corporation "a contribution" of 24,950 shares, "to enable the Southwestern Land & Cattle Co. to carry out its contract for the purchase of the assets of the New York Cattle Co." Later, on the 1st day of March, 1884, an agreement fabricated by Damon was entered into between the Southwestern Land & Cattle Company and the New York Cattle Company, Limited, a corporation of the state of New York, in both of which companies Damon was a stockholder and active manager, whereby the latter company agreed to sell and assign to the former a lease for five years from October 1, 1883, of a cattle range in the Indian Territory, which it had obtained from the Cherokee Strip Live-Stock Association, and also cattle, horses, mules, and the range equipment, for $499,500, to be paid by the transfer and delivery to it of 24,975 shares of the capital stock of the Southwestern Land & Cattle Company, and the assumption of the payment of a note for $29,000, which the vendor had given to a third party. The agreement recites that it was the intention of the Southwestern Land & Cattle Company to issue a mortgage upon the property so to be acquired for $500,000 to secure the payment of bonds; and that when the mortgage should be executed the Southwestern Land & Cattle Company would exchange $142,000 of the bonds for 11,725 shares of the capital stock held by the vendor. Pending the exchange of the 11,725 shares of stock, the stock was to remain in the possession of a trustee. Subsequently, a mortgage, of even date with the agreement of sale, was executed. It purported to mortgage all the assets, present and future, of the Southwestern Land & Cattle Company, to secure bonds aggregating in amount $500,000, and payable In 10 years, the privilege being reserved to the company to pay any bond, with a premium of 5 per cent. at an earlier date. Themortgage was made to Charles C. Leeds, then the legal adviser of the Southwestern Land & Cattle Company, and William M. Murray, a stockholder in the New York Cattle Company, Limited, as trustees. It was never either filed or recorded in any public office in this state, New York state, the Indian Territory, or elsewhere. Nor was possession of any property delivered or taken in virtue of it. As to creditors obtaining a lien, it is without validity. Revision, p. 709, § 30; Jones, Chat. Mortg. § 170; Currie v. Knight, 34 N. J. Eq. 485, 480. The claims of creditors fastened upon the property of the insolvent company upon the appointment of the receiver. Button Co. v. Spielmann, 50 N. J. Eq. 120, 24 Atl. 571. Of the bonds, $184,500 in face value were issued, and of that amount $142,000, together with 13,255 shares of capital stock, of the par value of $204,500, went to the New York Cattle Company, Limited, and were divided among its stockholders. The property thus sold by the New York Cattle Company, Limited, to the Southwestern Land & Cattle Company, with the 'exception of some cattle bought of one Creswell by the note of $20,000, which the Southwestern Land & Cattle Company subsequently paid, was substantially the same property which the New York Cattle Company, Limited, had previously, in April, 1883, bought through one Sandford from a corporation, called the Jackson Cattle Company, Limited, of Goshen, for the stated consideration of $25,000. An examination of the books and papers of the several owners of these assets reveals a progressive inflation of the valuation of them as they passed from owner to owner to the enormous sum of $499,500. The assets thus purchased are entered and valued in the books of the Southwestern Land & Cattle Company in an inventory in this form:
(1) Lease and good will of N. Y. Cattle Co.
(2) Cattle account
(3) Horse and mule account
(4) Supply account
(5) Fixtures and outfit
What the real value of the assets purchased was, is not shown by determinative proofs, but the strong indications are that it did not exceed one-twentieth part of $499,500. William E. Hebberd, who appears to have been the sole clerk or factotum of the company's principal office in New York City, testifies that the last item of the statement or inventory, "Franchise $200,000," was a fiction of his inventory to force the valuation of the desired $499,500, and also that the first item of the inventory—$100,000 for the lease and good will—was made in face of the fact that the New York Cattle Company had been operated at a loss. He further testifies that George F. Damon, the leading spirit of the fabrication, and the president of the company, some time after the organization declared that the valuation should not have been put higher than $150,000; that it was a mistake to put it so high as half a million. I think that it abundantly appears that the transaction by which the stock was issued for property purchased was not an honest one, at least so far as Damon was concerned; and that in his hands, at least, the stock cannot be considered as fully paid. As one of the stockholders of the New York Cattle Company, Limited, among whom the shares and bonds of the Southwestern Land & Cattle Company, delivered to that company, were divided, Mr. Damon took 9,771 shares of stock and $24,500 in bonds. Upon paying the company $10 a share,—half par value—he caused 600 additional shares of the capital stock to be transferred to himself. He also purchased $12,500 bonds at par, and thereupon took 1,200 shares of stock without payment, as a bonus for that purchase of bonds. He also took 567 more shares of stock in payment for coupons from his bonds, which had been defaulted upon, and, in January, 1889, through the assumption of some obligations, aggregating less than $7,000, he purchased from certain stockholders of the New York Cattle Company, Limited, 6,770 shares of stock and $132,500 in bonds, Including $20,000 in bonds which had been purchased by one Sandford for cash from the Southwestern Land & Cattle Company. The only shares of stock for which he paid par were the five shares subscribed for by him as a corporator of the company. He subsequently parted with some of his shares and bonds, but his estate now holds 17,503 shares of stock and $170,500 in bonds, including the $8,000 bonds held by George F. Moore as security, presently mentioned. William Clark took 500 shares of stock and $5,000 in bonds as one of the stockholders of the New York Cattle Company, Limited, and 500 more shares of stock as a bonus for the purchase of $5,000 of the bonds. He now holds $l0,000 in bonds and 1,000 shares of stock. George F. Moore bought $5,000 of the bonds, but subsequently sold them to Damon. With them he received 500 shares of stock as a bonus for his purchase of the bonds, and subsequently 60 shares more of stock at $10 per share, in payment for interest coupons which fell due. All this stock was sold to Damon, though it yet stands in the name of Moore on the stock book of the company. Moore claims to hold it, together with $3,000 additional in bonds, $1,000 of which Damon got from the New York Cattle Company, and the other $2,000 of which he purchased from the Southwestern Land & Cattle Company, as collateral security for an indebtedness from Damon to him hereinafter mentioned. Damon transferred one of his bonds to J. W. Canfield, now dead, represented by W. W. Andrews, his administrator, but whether for value or not, does not appear. The bond was one of those which Damon got from the New York Cattle Company stockholders in January.1889. Damon also transferred to George A. Clark & Bro. three bonds for $1,000 each, which he obtained from the New York Cattle Company, Limited, but the proofs fail to show that the transfer was for value.
From its very organization the Southwestern Land & Cattle Company was under the dominion of Mr. Damon. It had directors, but they appear to have performed their duties in a merely perfunctory manner, meeting seldom, and then only to resolve to clothe Damon with more abundant power and control of the company. In May, 1889, Damon drew a note of the Southwestern Land & Cattle Company, at four months, for $10,000, to his own order, signing it with the name of the company, by himself as its president, and on the 1st day of June indorsed it, and presented it to the German-American National Bank of Kansas City for discount. With it he handed the bank a statement, which he had previously caused William E. Hebberd to prepare, having the double purpose thereby to exhibit a solvent maker of the note, and also an indebtedness from that maker to him which would justify his making the note. That statement was in the form of a letter written upon note paper with a printed heading, which, among other things, states the name of the company, the announcement of the fact that W. E. Hebberd was "in charge," the address of the company's New York office, and the location and address of its ranch in the Indian Territory, called the "K. H. Ranch." The letter is as follows:
"New York, May 8th, 1889.
"G. F. Damon, Esq.—Dear Sir: In reply to your inquiry of the 13th inst., asking what sum in cash the assets of this company represent, also the amount of the company's indebtedness at this time, and to whom payable,—would beg to say that the assets represent a cash investment of $150,000, and that the indebtedness of the company at this time is as below:
To G. F. Damon for advances
Less amount due company
"The S. W. Land & Cattle Co.,
"Per W. E. Hebberd."
Assured by Damon's representations, which were corroborated by this communication, the bank discounted the note, and passed the proceeds of the discount to Damon's individual credit. In fact, at that time, the total indebtedness of the cattle company to Damon was about $55, and its assets were not worth one-tenth of $150,000. With the money thus had, during the same month Damon bought 897 head of cattle from one Toms, and put them upon the cattle company's range in charge of K. H. Ranch, taking a written acknowledgment from the foreman and auditor in charge that they were received from him. Hebberd was not informed of the issuance of the $10,000 note until it was renewed in October, 1889, and later, in November, he was instructed by Damon to enter it in the books of the company among the bills payable, who represented it to be a loan "for our company." Later in November, Damon's financial affairs became so involved that he was unable to meet or adjust his obligations, and he succumbed to nervous prostration. While in this condition, on the 14th of December, after securing several creditors, he executed a general assignment to William Rearing Clare for the benefit of his creditors. About this time he was greatly alarmed lest the misrepresentations he made to the German-American National Bank would lead to criminal prosecution, and possibly to his incarceration in a penal institution. He continually consulted Mr. John H. Clapp, a lawyer, who was his neighbor, and besought him to, in some way, appease the bank. According to the testimony of Mr. Clapp, he insisted that a bill of sale of the Toms cattle and some cattle purchased by him from one Goodrich and marked "K. H. 4," should be made to the bank, and prevailed upon Mr. Clapp to prepare such an instrument it bears date on the 15th of December, 1889, and purports to have been executed on that day in the presence of Mr. Clapp, who certifies upon it, in his official capacity as notary public, that on the day of its date Damon acknowledged his execution of it. The fact that that instrument purports to have been executed prior to the general assignment to Clare, led to the taking of considerable testimony upon the contention that its date and the date of the notarial certificate of its acknowledgment were false, but since the taking of that testimony the assignment has been declared to be void, and set aside by the circuit court of the United States for the Southern district of New York, upon the ground that Damon did not possess mental capacity to make it. This event dispenses with the necessity of determining the question which of the two instruments, the bill of sale or the general assignment, is to have precedence.
Because of a sweeping statement in the decree of the United States court, to the effect that on the 9th of December, 1889, and thereafter until the death of Mr. Damon, on January 20, 1890, he was subject to delusions, his widow and executrix of his will, has petitioned that she be allowed to intervene, and take testimony in this proceeding, to show that her husband was incompetent to make the bill of sale; and, represented by the same counsel who represented the assignee Clare, she has presented a brief upon the case originally presented to me. While I admit the executrix as party to this controversy, as representing the estate of Mr. Damon, I will not now permit her to stay the determination of the issues here concerned, which will not be affected by the contest she proposes. I will first eliminate them, and then, as hereinafterindicated, will afford her an opportunity to test the validity of the instrument she questions. I Lave concluded not to give effect to the bill of sale, or, rather, I apprehend, the chattel mortgage, for a memorandum written thereon by Mr. Clapp to the intent that the instrument is only security for the indebtedness to the bank appears to give it that force, because, primarily, as against the Southwestern Land & Cattle Company, I think that the possession necessary to give it validity was not taken. The German-American National Bank, the receiver, and Mr. Clare, each declare their claims to the cattle, but until what is called the "round up" and "cutting out" of the cattle in the spring of 1890, actual possession could not be had. It is in proof that the ranch consisted of many thousands of acres of pasturage, over which the cattle, for miles, ran wild, mixing with the cattle of many owners. They were distinguishable only by their brands; those of the ranch of the Southwestern Land & Cattle Company all bearing the brand "K. H." with additional subordinate brands, of various designs, to distinguish the lots or herds to which they respectively belong. The Toms cattle and the Goodrich cattle were distinguished by such brands. By the custom of cattle men, there exists what is called a general "round up" or gathering together of the cattle every spring, at which the brands are examined, and the cattle of the several ranches and owners are separated or "cut out." At such round up only, it became possible to take possession of cattle and market them. It is not permissible to "round up" and "cut out" cattle, at any other period of the year. If cattle on the range are sold, a delivery, usually recognized by cattle men, is made by authoritative admission by the owners or lessees of the ranch to which the cattle are attached, that they are held for the vendee, and subsequent actual deliveries are accordingly made at the "round up." After the receiver had been appointed, the German-American Bank attempted to take possession of the Toms and Goodrich cattle. Its agent went to the ranch, there exhibited its bill of sale or mortgage, declared that he intended to take possession, rode about, and saw a few of the cattle, and took from the man who, until the appointment of the receiver, had been employed by the Southwestern Land & Cattle Company as foreman at the ranch, an authorized receipt that the Toms and Goodrich cattle were received upon the range for the German-American National Bank. That the foreman could not bind the receiver, in whom all the assets of the company were then vested, is too clear for argument. When the "round up" in the spring came, actual possession of all the cattle was delivered to the receiver, who sold them by order of the court, and now holds the proceeds of sale, subject to the legal and equitable claims upon them.
The German-American National Bank insists that it has a valid subsisting claim against the Southwestern Land & Cattle Company for the payment of the $10,000 note which Damon caused it to discount. I think it is right in its contention in this respect. It took the note in good faith, for value, and before maturity. It is true, upon its face the note appeared to be drawn by the president of the cattle company to his own order, and the proceeds of the discount were used by the president to open an account in the discounting bank in his individual name. These are circumstances which challenge the good faith of the bank in the transaction (Starin v. Town of Genoa, 23 N. Y. 452; Claflin v. Bank, 25 N. Y. 293; Trust Co. v. Abbott, 44 N. J. Law, 257; Fifth Ward Sav. Bank v. First Nat. Bank, 48 N. J. Law, 513, 7 Atl. 318), but when they are considered in connection with the representations made by Damon, corroborated by the statement prepared by Hebberd, which represented an existing indebtedness to Damon in excess of the amount of the note offered, they, at best, suggest but a suspicion, the disregard of which will not justify the conclusion that the note was taken in bad faith (Hamilton v. Vought, 34 N. J. Law, 187; Read v. Abbott, 45 N. J. Law, 303; Bank v. Young, 41 N. J. Eq. 531, 7 Atl. 488). But if the note was good in the hands of the bank against the cattle company, it clearly was unwarrantably made by Damon in abuse of his relation to that company. He had no right to the note, and no right to the proceeds of its discount, and, as he used those proceeds in the purchase of the Toms cattle, I perceive no reason why I should not adjudge that a trust was impressed upon the cattle in behalf of the Southwestern Land & Cattle Company. It is true that Mr. Damon by indorsing the note, added his credit to that of the cattle company to obtain the money; but without the liability of the cattle company he could not have had the money. That liability exceeds the fund realized from the sale. The proceeds from the sale of the Toms cattle must therefore go to the receiver.
The proceeds of the sale of the Goodrich cattle, less the reasonable charges in behalf of the cattle company and the receiver for the pasturage and care of those cattle, which are admitted by all parties to justly belong to the receiver, may be made the subject of a bill of interpleader by the receiver, to which the bank and the representatives of the estate of Damon may be the parties defendant, and in that suit there will be opportunity to contest the validity of the assignment or mortgage to the bank.
The bonds issued to the cattle company were coupon bonds, payable to bearer, and transferable by delivery. According to well-established rules, they had all the qualities of ordinary commercial paper. Therefore such of them as reached the hands of innocent holders for value before maturity must be held to be valid obligations of the company to the extent of the value paid for them. Knapp v. Mayor, etc., 39 N. J. Law, 397; Force v. City of Elizabeth, 28 N. J. Eq. 406, s. c. on appeal, 29 N. J. Eq. 587; Copper v. Mayor, etc., 44 N. J. Law, 634; Water Co. v.De Kay, 36 N. J. Eq. 567; Fifth Ward Sav. Bank v. First Nat. Bank, 48 N. J. Law, 513, 7 Atl. 318. It is noticed that out of the $184,500 of bonds issued, $142,000, or all but $42,500, went to the New York Cattle Company, Limited, in pursuance of the agreement for the purchase of its assets in consideration of the return of 11,725 shares of the capital stock of the Southwestern Land & Cattle Company, and that subsequently all those $142,000 of bonds became the property of Damon. The mere statement of the transactions by which the stock and bonds were issued to the New York Cattle Company, Limited, and through that channel reached the hands of Damon, who contrived and controlled the scheme, satisfies me that the object of his acquirement of the stock and bonds for an insignificant price as compared with the par value thereof, through dishonest device, detrimental to creditors of the Southwestern Land & Cattle Company, who, if the transaction should stand as the proper disposition of the stock and bonds, would be deprived of the fund which the honestly paid capital would have afforded them for the payment of their demands. All the value that was had for the stock of the company appears to have been about $1 a share, and for each $1,000 bond bought by the return of stock issued for that value, about the sum of $82.50. When Damon took the $142,000 bonds from the New York Cattle Company, Limited, he knew what consideration had been paid for them, and I think that now he should not be paid more for them than that value,—about $82.50 each. Because the proofs do not determinatively fix the value of the New York Cattle Company, I am unable to precisely fix the amounts which should be credited as paid for the stock, or as the value of the bonds in Mr. Damon's hands. Approximately, he is entitled to about $11,725 for the bonds he had from the New York Cattle Company, Limited, $20,000 for the Sandford bonds, for which Sandford paid par, and $12,500 for the bonds he bought from the Southwestern Land & Cattle Company at par; or about $44,225 in all. But it is remembered that his estate is the holder of 17,503 shares of the capital stock of the Southwestern Land & Cattle Company, 5 of which shares are fully paid for, 600 of which shares are half paid for, 1,250 of which shares he took as a bonus with his purchase of $12,500 in bonds, 567 of the shares were issued to him in payment of interest coupons of the bonds he held, and the remaining 15,086 shares he had from the New York Cattle Company, Limited. I am of opinion that he is liable to calls by the receiver, for the payment of the debts of the company, upon so much of the par value of the stock he holds as is unpaid for. That liability will be the unpaid half of the $600 shares, or $6,000; that which remains unpaid upon the 15,086 shares, about $286,584; the excess of the par value of the 567 shares taken by him for unpaid interest coupons over the just interest upon the price paid for the bonds as has been indicated; and so much as may be necessary of the par value of the bonusstock to pay the creditors, after the exhaustion of the sums available upon calls from the amounts unpaid upon other shares. As to the bonus stock, the contract between the purchaser of bonds and the company was that he should not be called upon to pay for the stock. Such a contract is binding upon the company and its shareholders, but, as the capital stock constitutes a trust fund for the payment of debts, it cannot be given away from the demands of creditors, and hence the holders of bonus stock may be required to pay for it in satisfaction of the demands of creditors, after the exhaustion of all other assets, upon the ground that its issuance to them was a fraud in law upon the creditors. Washburn v. Green, 133 U. S. 30, 10 Sup. Ct. 280; Handley v. Stutz, 139 U. S. 417, 11 Sup. Ct. 530. It appears that while $44,225 may be due to the estate of Mr. Damon, his liability to the creditors of the company on his various stock holdings amounts to something in the neighborhood of $330,000. He would not be allowed to set off his demand against his liability on account of his unpaid stock holding for the reason that the assets of the company are insufficient to pay its liabilities, and the unpaid stock demands now constitute a fund for the equal benefit of all creditors. But in the principle which forbids such set-off there is nothing to preclude a set-off in behalf of the insolvent company of the liability of Mr. Damon against his demand; and the more so when the fact is, as it appears in this case, that Damon's estate is insolvent. Thomp. Corp. § 3800. It is quite clear that upon the application of all assets to the satisfaction of the demand against the insolvent company here, the calls upon Mr. Damon's estate must exceed his demands against the insolvent company; and hence I think that nothing should be paid at present upon his demands, but that they should be hereafter, as calls may be made upon unpaid stock, offset against those calls. In addition, I am of opinion that because of the misrepresentations made by Mr. Damon to the German-American Bank his entire demand should be postponed to the full payment of the bank's demand. He represented to the bank that the indebtedness of the insolvent company did not exceed $12,393.36, whereas, exclusive of his own demands, and the claim of the bank, the indebtedness is in excess of that sum. The bank relied upon his statement, and suffered detriment thereby, and it is inequitable that Mr. Damon's estate should assert, as against the bank, a claim in excess of it. I deem that an equitable estoppel exists in favor of the bank against Damon's estate.
Passing to the demand of William Clark. His claim for $5,000 for bonds which he purchased for cash from the company at par is good. His claim for $5,000 for bonds which he had as a stockholder of the New York Cattle Company must be reduced for the value paid for those bonds, as has been indicated above. He is liable to calls on account of the 500 shares of stock he had from the New York Cattle Company, Limited, andfor calls upon the 500 shares of bonus stock, to be postponed to the exhaustion of the liabilities of all holders of other stock liable to calls. As in the case of Damon, his demand is subject to set-off upon calls by the receiver, and payment to him should therefore be postponed until those calls shall be made.
As to the claim of George F. Moore. In December, 1884, Mr. Moore purchased 5 bonds of the company, of the value of $1,000 each, for which he paid cash. With those bonds he received 500 shares of the capital stock of the company as a bonus. During the year succeeding his purchase, two interest coupons from each of his bonds were paid. At the end of the second year, 60 shares of capital stock were issued to and accepted by him for $300 interest remaining unpaid. In 1887, Mr. Moore insisted that Damon was accountable for his unfortunate purchase, and upon his insistence Damon gave him his (Damon's) note for the amount of the purchase, leaving with Mr. Moore the bonds and stock as collateral security for the payment of the note. That note was ultimately paid, but just before the last payment upon it, in December, 1888, Damon proposed to Mr. Moore that he and Moore should go into a cattle speculation. The money necessary for it was a little over $6,000, which was to be contributed equally by Damon and Moore, discounting Damon's note for the $3,000 Damon was to contribute, to secure which discount or loan the 560 shares of stock and the 5 bonds, with 3 additional bonds of $1,000 each, making in all 8 bonds, were left with Mr. Moore as collateral security for the payment of Damon's note; and also, as Mr. Moore alone testifies, for the security of Moore from all loss in the speculation. The money in excess of $3,000 which was used in the speculation was paid by Damon. In 1800 the cattle thus bought were sold by Mr. Moore for $1,340.25, from which sum he proposes to deduct $1,660.82 for the expense of selling the cattle. The proofs do not justify such an allowance. It is almost impossible to say what a proper charge for them would be, but I think, upon consideration of the whole testimony, that an allowance of $1,200 for them will be ample.
The claim that the bonds and stock were to be held by Moore as security from all loss to him in the speculation is supported by the testimony of Moore alone as to conversations with Damon, and has been received under objection in behalf of the representatives of the estate of Damon that he is not a competent witness to testify to any conversations with Damon to establish a liability against them. I think that the objection is well taken. They are parties in this proceeding. They are here to assert and defend the rights of Damon. Damon's estate is entitled to all the proceeds from these bonds and stock in excess of that which is chargeable against them in behalf of Mr. Moore, and, so far as the interests of Damon are concerned, the executors of his will virtually here sue and are sued in a representative capacity. I think, therefore, that his testimony, in the particular referred to, was incompetent, under the act of 1880 (Supp. Revision, p. 287). This being so, Mr. Moore has shown that he should have credit only for $3,000, with interest from the maturity of Damon's note, and that he should be charged with $3,140.25, proceeds of sale of cattle, with interest from the time when the same was realized. If there be a difference in his favor, the dividend upon the amount due upon the bonds and stock in his hands will be offset in the payment thereof. The excess of the dividend over that amount must be credited to Damon, and be dealt with as in case of his other similar holdings of bonds and stock. Seven of the bonds are to be treated, with reference to him, as fully paid for in cash, and the remaining bond, which was had from the New York Cattle Company, Limited, will be reckoned as similar bonds held by him are. Mr. Moore, however, will not be paid a dividend until the receiver shall have made such calls upon the stock unpaid for, as may be necessary. Under such calls Mr. Moore must answer for the 500 shares of bonus stock. Bank v. Case, 99 U. S. 628; Thomp. Liab. Stockh. 288.
It does not appear whether the bonds transferred by Damon to J. W. Canfield and George A. Clark & Bro. were transferred to them as innocent purchasers for value. They were bonds which he had from the New York Cattle Company, Limited, and proof that value was paid for them is necessary to enable the amount due upon them to be ascertained.
The situation of other claims presented to the receiver has not been discussed before me. I understand that there are other claims, some having a preference in payment, but that their adjustment is not involved in the matter herein treated of, and that they do not affect the questions considered.