Summary
Appear from the Equity Side of the Circuit Court for Allegany county.
The bill- in this case was filed on the 6th of August 1856,, by the appellee against the appellants and The Ocean. Steam Coal Company, James L. Graham and Jerry Cowles.
From the record in the case, it appears that prior to January 1853, the defendant, Jerry Cowles, of the city of New York, by various contracts with the owners of coal lands in Allegany county, became entitled to a very large body of the-Big Vein of coal, which had been purchased by him at prices-deemed by him and others as greatly less than the intrinsic’«alue of the property. The defendant, Graham, and the; complainant, Thruston, having conferred together, it was arranged that the complainant should see Cowles, and endeavor to procure his assent to the transfer to the defendant, Graham,, and others, of certain, portions of the property so purchased - After various negotiations, which need not be stated, the following contract was entered into between Cowles and. the; appellants, Yarnum and Aspinwall, dated the 24th day of January 1853:—
“Memorandum of an agreement made this twenty-fourth day of January, one thousand eight hundred and fifty three, between Jerry Cowles, of the city of New York, of the first part, and Joseph 13. Yarnum and William H. Aspinwall, of (he same place, of the second part.
“Whereas the said party of the first part hath made contracts with various persons for the purchase of coal lands in the State of Maryland, (which contracts are hereinafter more particularly slated and referred to,) and has, in order to procure the assistance of the said parties of the second part in performing the said contracts, and working the mines thereon, agreed to admit them to. an equal participation with him in a half part of the benefits and advantages to be derived from the said contracts, and to that end to assign and transfer to them all of the said contracts upon the terms and conditions herein contained.
“Now this indenture witnesseth as follows, that is to say:
“First. — The said party of the first part, in consideration of the agreements and stipulations herein contained on the part of the said parties of (he second part, and of the sum of ten dollars to him in hand paid by them, the receipt whereof is hereby acknowledged, has granted, bargained, sold and conveyed, and he hereby grants, bargains, sells and conveys to the said parties of the second part, and their heirs and assigns forever, all and singular the several contracts mentioned and referred to in the schedule hereto annexed, and all his right, title and'interest therein, and in and to the lands and premises in said contract described or referred to, excepting thereout and therefrom his interest in the contract with the George’s Creek Iron and Coal Company, and in the contract with George Staup, so far as such interest relates to lands not referred to in said schedule, and not intended to be affected thereby.
“Second. — The said parties of the second part are to provide the funds necessary to complete the said contracts, so far as the same relate to the lands in the said schedule mentioned, Oml they are to receive the conveyances of the title to the said land.
££ Third. — The said parties of the second part are to hold the said lauds (subject to their claim to be reimbursed the cost thereof and all expenses in relation thereto) for the joint benefit of themselves and the said party of the first part, in equal half parts, and they are to dispose of the same in the mode herein directed.
££Fourths — The said parties of the second part, and their associates, shall form a company, under the general law ■passed by the Legislature of the State of Maryland, at the" session of 1851, for the formation of mining companies, for' the purpose of mining the coal on the said latíd. The capital stock of the company shall be fixed at such sum as the parties of the second part shall consider the value of the said lands will admit, and said stock shall be divided into shares-of one hundred dollars each. The parties of the second part, as soon as they shall obtain the title to the aforesaid lands, shall sell and convey the same to the company so to be formed, in payment of said capital stock, which stock shall be ■issued in their names.
“Fifth. — The parties of the second part shall, out of the stock so issued to thorn, sell sufficient to reimburse them the cost of the said land, and all charges and expenses to which they may be put, in relation thereto, with the interest thereon, and also the sum of fifteen thousand dollars and interest, agreed by them to be paid to the said party of the first part, as hereinafter provided, and also to raise the sum of not Jess than two hundred thousand dollars, to improve the said property, and to furnish -a working capital to the said company; which sum of two hundred thousand dollars, when so raised, shall be paid into the company for the benefit of the stockholders, The parties of the second part, after making the sales and payments aforesaid, shall next transfer one-twentieth part of the whole of the said capital stock to Charles M. Thruston, aud the balance of the said stock then remaining shall belong one-half to the party of the first part, and the same shall be transferred to him, the other half shall belong to the parties of the second part.
“Sixth. — The parties of the second part, when they shall pay the first instalment on the said contract, shall also pay the said party of the-first part the sum of'fifteen thousand dollars,.to reimburse him for the moneys expended in obtaining the said contracts, and in and about the said lands, which sum and interest is to be treated as a charge on the said lands, fix the hands of the parties of the second part, and is to be paid to them in the same mariner as above provided for the-payment of the purchase money.
“Seventh. — The said company, when formed!, shall take two out of the three rooms which the party of the first part! has hired in the Metropolitan Bank buildings in the city of New York, and-shall pay the sum of three thousand dollars; per annum therefor, the rent stipulated to be paid by the said party of the first part for the three rooms, being four thousand dollars per annum.. In. witness whereof, the parties to these-presents have hereto set their hands and seals, the day and year first above written. Jerry Cowles, [l. s.]. .
J. B. Yarntjm, [l. s.]
'In presence of W. H. Aseinwall. [l. s„J
M. L. Joice,.
James Larimer Graham,.
J. B. Varnum,. Jr.”
“Schedule referred" to in the annexed agreements
£T. — Contract-between Jerry Gbwles and' Henry Koontz,. dated June 1st, 1852, for 600 acres-of land in Allegany county, in the State-of Maryland, at-$11 © per acre.
“2. — Con tract between Jerry Cowles-and Thomas Wright,, dated June 15tfi, 1852-, for 680-acres of land in said county,, at ,$100 per a'cre-.
“3. — Contract between J'erry Cowles and Elisha Coombs,, dated July 23rd, 1852, for 350 acres of land in said county, at $100'per acre.
“4. — Contract between William Humbertson and Douglas-.Percy¿ dated June 28th, 1852,.for 255 acres of land in. said “ounty; said contract was, as signed by said Percy to said Cowles, July 3rd, 1852, for consideration of $2540.
“5. — So much of a contract made between said Cowles and The George’s Creek Coal and Iron Company, bearing date December 30th, 1852, as relates to lands in said county, lying west of George’s creek, and also east of said creek and north of Neff’s run, (supposed to contain 300 acres,) at a price of $250 per acre.
“6. — So much of a contract between said Cowles and George Staup, dated Sept. 1st, 1852, as relates to land lying west of George’s creek, and north of Neff’s run, supposed to contain from 50 to 70 acres, and that portion of purchase money applicable thereto, being estimated at $7,000.”
As the decision in this case depends entirely upon the construction of the above contract, it is only necessary to state, in addition, that the company provided by that agreement to be formed, was so formed on the 27th of October 1855, and called “The Ocean Steam Coal Company of Allegany county,” and by the articles of association forming the company, it was stipulated that its capital stock should consist of $1,000,000, divided into 10,000 shares, of $100 each, that being the amount which “the said Yarnuin and Aspinwall, and their associates, consider the value of the lands mentioned in said agreement, including the number of shares to he subscribed by the nine directors named in the certificate of incorporation.” Varnum and Aspinwall jointly subscribed for 9991 shares of this stock, (including the whole, save one share each subscribed for by the nine directors,) to be paid for in the conveyance to the said company of the legal title to all the lands mentioned in the said agreement, so far as the said Varnum and Aspinwall had obtained the legal title to the same, and by a conveyance and assignment of their equitable title to all said lands, to which they had not been able to obtain the legal title, subject however to all the rights of the respective parties to said agreement. It was also stipulated, as part of this subscription, that Varnum and Aspinwall should pay off certain mortgages on the lands executed by Graham j and that until such payment should be made, the company should be at liberty to retain a proportional part of the stock as security for such payment. Afterwards Yarnum and Aspinwall did convey to the company parts, but not' all, of the lands embraced in their subscription. They did not pay off the mortgages given by Graham, but left them remain as liens. In this state of the case the whole 9991 shares subscribed for by Yarnum and Aspinwall, were offered for sale in.the city of New York, at public auction, on the 1st of July 1856, and were sold for the gross, sum of $376,612, which sum was not sufficient to cover the asserted liens of Yarnum and Aspinwall, and to satisfy the unpaid mortgages.
The complainant, in his bill, insists that the defendants, Yarnum and Aspinwall, were bound by their agreement with Cowles, to form a company and transfer to the complainant, at all events and in any contingency, one-twentieth part of the whole capital stock of said company, and he further insists that they were bound to provide, at all events and in any contingency, a working capital for said company of at least $200,000, and the complainant therefore asks specifically for 500 shares (being one-twentieth) of the capital stock of the company which had been formed, and that the said Yarnum and Aspinwall might be required to supply said company with a working capital of $200,000. The complainant further insists that it was the duty of Yarnum and Aspinwall to have formed said company within a reasonable time, and charges that they have been guilty of gross neglect of their duties in various specified particulars, and of inexcusable delay in forming the company, which caused, as a necessary consequence, accumulation of interest and loss of profits, and he claims an account for losses sustained by these alleged improper acts and neglects of Yarnum and Aspinwnll.
The defendants, in their answers, deny this construction of the agreement, and insist that the right of the complainant was dependent on the result of the sale of stock, their theory being that the advances of Yarnum and Aspinwall, with interest, were first to be fully paid, as a primary charge on the proceeds of the stock, that then the working capital was to be raised, next in order as next in priority, and in case, and only 3n case, (here should be a surplus of slock, was the complainant to have stock equal to one-twentieth of the whole capital stock of the company. The answers also deny the other allegations of the bill.
Testimony was then taken, and the court below, (Perry, J.,) upon the hearing of the cause, delivered the following opinion:
“The amount involved in this cause, the interest felt, and the questions to be decided, are of so much consequence, as to be to me a cause of much reflection and concern. I regard tlte case as involving but one point, which may be esteemed as controlling its final result.
“In the argument I have not been referred to any authority to show that a contract made (as in this case) between persons in which the complainant was not a party, he, (the complainant,) could avail himself of a provision or trust inserted for his benefit. Í have, however, investigated the question, and find the law to be well settled, that in all cases in which parties, other than the cestui que trust, executes an instrument in which trusts or equitable rights are secured to such cestui que trust, and the trustee accepts and acts upon the trust, and executes it so as to prevent a revocation of his acts, then it becomes an executed trust, which will not only bind the trustee, but the person who conveyed the property, &c., and will be enforced against himself and his representatives. In this case, the duties of the parties to the agreement, (Varnum and Aspinwall,) have been so far performed as to leave no possible difficulty in that respect, in regard to the trust, or equitable rights which are sought to be enforced on the behalf of the complainant.
“By the articles of agreement made between them, (Cowles, Varnum and Aspinwall,) it is agreed that they (Varnum and Aspinwall) should provide the funds necessary to complete the contracts made by Cowles, and that they were to hold the lands, (subject to their claim, to be reimbursed the costs thereof, and all expenses in relation thereto,) for the joint benefit of themselves and Cowles, in equal half parts, and to be disposed of in the manner directed by the agreement. They (Yarnum and Aspinwall) were to form a company un» der the general law of this State, passed in 1851, its capital stock to be fixed by them, and to be issued in their (Yarnum and Aspinwall’s) names. They were also, out of the stock so issued, to sell sufficient to reimburse them the cost of the land, and all charges and expenses to which they might be subject, and pay the sum of $15,000, and to raise not less than $200,000 to improve the property and furnish a working capital to said company. And that after making the sales and payments aforesaid, they should next transfer one-twentieth part of the whole of said capital stock to Charles M. Thruston, and the balance of said stock then remaining shall belong, one-half to Yarnum and Aspinwall, and the other half to Cowles. The company was organized and the stock .issued, and the same has been sold to various persons, and the proceeds of such sales are now held by the defendants, (Yarnum and Aspinwall,) as they insist, to be applied to the preferences and charges provided for in the agreement.
“J deem it proper to suggest, that by the original agreement it is provided that Yarnum and Aspinwall, after making sales and payments, &c., shall next transfer ‘one-twentieth part of the whole of the said capital stock to Charles M. Thruston,’ when in the answers of the defendants, The Ocean Steam Coal Company, William H. Aspinwall, Joseph B. Yarnum, are exhibited copies of the agreement, in which the words ‘whole of,’ in that part of the contract, are omitted, but are found in the exhibit made in the answer to James L. Graham. The discrepancy in the original agreement and copies exhibited in the answers, in regard to that part of it, is adverted to for the purpose of avoiding an impression that I have in this opinion improperly quoted its provisions and words, as such might be done by a reader who compares what I quote with the copies exhibited with the answers.
“This instrument is to be interpreted by me. What was the design and intention of that agreement in regard to Charles M. Thruston? Was he in all events to be entitled to “one-twentieth part of the whole capital stock?” or was the stock liable to be sold, and all right and title of Thruston to be devoted, &c., to reimburse the defendants, and raise the $15,000 and $200,000 provided for in the agreement?
“Much has been said in regard to matters and circumstances outside of the contract, and yet all must concede that it is to be decided and interpreted by the words and language-used in that instrument, if I were disposed', I could not indulge in conjectural designs and purposes of the parties. The-law has wisely environed judges with rules of construction upon which they cannot infringe. Rules that are to be regarded and esteemed of controlling influence in the interpretation of agreements, and when known and established,, cannot be impaired but by the use of legislative authority.
“On the part of the complainant, it is insisted that the duty to make the transfer to him is peremptory; that his right is= not dependent upon a contingency, and that the transfer was-postponed for reasons other than those assigned by the defendants; that it was unconditional, and that no part of the-agreement will authorize this court to determine that his-rights depended upon the amount of sales, &c. The de*fendants urge that the transfer was postponed until after making the sales and payments, and that the right of the* complainant is made dependent upon that event;-that notwithstanding this contingency is not expressed in terms, it is to be implied, in order to render the several clauses of the agreement consistent with each other, and the entire article consistent with the preceding articles; that the transfer was' to be made t©> Col. Thruston, in the event, and only in the event, that after making the sales and payments already directed, there should remain stock in the hands of Messrs. Yarnum and Aspinwall sufficient for that purpose. The argument on the part of the defendants is, that though the-contingency upon which the title of the complainant to the stock is to be defeated or denied to him, is not expressed, the law-will imply it, in order to render the several clauses of the-agreement consistent with each other.
“1 have with much care investigated the question, whether the law will authorize such an implication, and I cannot hesitate to believe the rule of. construction, ‘that the express mem-lion of one thing implies the exclusion of another,’ or, as is otherwise worded, expressum facit cessare taciturn, annunciates one of the first principles applicable to the construction of deeds, and that when there is an expressed contract between parties, none can be implied, (4 Law Lib., 1S3;) that there cannot be an implied contract, contradictory of express covenants, but there may be implied covenants which are consistent with those expressed in the deed, and express covenants always qualify and restrain those that are implied within the import and effect of the express covenants, so that the former shall never be broader than the latter; Kent vs. Welch, 7 Johns., 259; Gates vs. Caldwell, et al.,7 Mass., 69; and that an implied covenant will be regarded as sufficient, but not when there is an express one on the same subject, for then the parties are restrained by the letter. Archibald’s Landlord and Tenant, 39. Morris vs. Harris, 9 Gill, 19-. West vs. Flannagan, 4 Md. Rep., 58.
“In the answers, no averment is made of fraud, surprise or mistake in the agreement, or in any part of it. Much doubt might be indulged in, if I were unaided by authority as to the principles controlling this court. The law is well understood to be, in this State, that ‘whatever may be the doctrine elsewhere1, we are to consider the law well settled in Maryland, that parol evidence is inadmissible in a case like ■the present one, to contradict, add to, or vary the terms of written instruments; and although a court of chancery will, upon proof of fraud, mistake or surprise, raise an equity by which the agreement will be rectified, according to the intent of the parties, it will not interfere when the instrument is; such as the parties designed it to be. For if they voluntarily choose to express themselves in1 the language of the deed,. they must be bound by it.’ Wesley vs. Thomas, 6 H.Sp J., 24. Watkins vs. Stocket, 6 El. Sp J., 435. Bend vs. Susquehanna Bridge Co., 6 H. Sp J., 128, Jones vs. Hardestyr 10 G. Sp J., 404. It is also well understood to be the law of this State, ‘that our courts must regard it as a sound rule of. construction, that if possible, unless it contravenes some rule ©flaw, every part of a deed, and the intention of the parties»shall prevail; George's Creek Coal S¡' Iron Co. vs. Detmold, 1 Md. Hep., 239; Waters vs. Griffith, 2 Md. Rep., 326; that contracts arc to be interpreted and enforced according to the fair import of the terms, without reference to the hardships that may fall on the parties; if persons voluntarily express' themselves in writing, they must be bound by the language employed. Abbott vs. Catch, 13 Md. Rep., 315. Nor can a court be aided in the construction of a written contract by acts which the party may have done under it, nor is a party bound by any construction which he may have put upon the' instrument. Ringold vs. Ringold, 1 II. iff G., 74.
“In the agreement, there is an express covenant, that after’ making the sales and payments, &c., Varnum and Aspinwall shall next transfer one-twentieth part of the whole of the said capital stock to Charles M. Thruston. The effort on the part of the defendants, is to show that the words ‘shall traos-' fer one-twentieth part of the whole of said capital stock,’ must be dependent upon the right to sell for the purpose of reimbursing the advances on the part of the defendants; and that the transfer of such stock is contingent, being postponed to a period of time (after sales) which, irresistibly and necessarily,must mean that the whole of the stock was charged with its' payment; that the whole instrument is to be construed, and every one of its provisions is to be considered, and so interpreted as to accomplish tlie intention and design of the respective parties executing it, and that that intention is, that the whole was liable to be sold to reimburse, &c. It is no doubt the general rule, that every part of an agreement is to be considered, in order to arrive at the meaning of the parties to it. It may be observed, however, that it will be found impossible to lay down one fixed and uniform rule, comprising all the cases which may arise. Tt is always a question of intention, and Courts have announced the rule of law to be, -‘that though it may be hard that the use of a certain form of expression should fasten upon a party a liability, when there are other expressions which raise a doubt as to whether he intended that such should be the case; and, on the other hand, it would be dangerous if judges were to permit themselves (which they have no right to do) to indulge in vague conjectures about the hardships of cases, and to consider, ingeniously, what the parties must have meant, when the word® used are clear and precise, admitting of no ambiguity at all.” Words of a covenant may be restrained by other words in the deed, if we can see a clear intention to restrain them from the other parts of the deed; but it would be a very dangerous rule, if it were to be applied to every case where ingenuity can show that by giving the natural meaning to the words of the general covenant, other words in other parts of the deed might be rendered nugatory. Raiole on Covenants for Title? 383.
“By the authorities to which I have referred, it will be-seen that the established rule of law is, that an express covenant cannot be limited or enlarged by the operation of implied covenants contained in the same instrument. Thh agreement in this cause is express, that the complainant ‘shall have the twentieth part of the whole of said capital stock.” To charge it (the stock) with the right of Varnum and Aspinwall to sell, to pay the purchase money, to reimburse them, can only be determined by an implication of the meaning of the parties. Can I, therefore, construe the agreement to mean that ‘the one-twentieth part of the whole of said capital stock’ was not to be transferred, but upon a contingency? was dependent upon the fact or event that th.e stock was to bring, by a sale, the sum necessary to reimburse the defendants, Varnum and Aspinwall? If such were done, I would have to divest the words ‘the one-twentieth part of the whole of the said capital stock,’ of all meaning.; I would have to interpolate by conjecture (which judges are not permitted to do) or by implication, which th.e authorities forbid, words restraining and qualifying the express covenant of the parties. They have agreed, in language by no means susceptible of misinterpretation, that at a specified period, he (Thruston) should have‘one-twentieth part of the whole capital stock; ft is not that after the sale, if sufficient remains, he is to have that part,, but the time of its transfer is limited.,, not the.qammt...
'“It is also insisted, that because the agreement limits the lime of the transfer of the stock to a period after the sale, the conclusion is irresistible, that it means, if enough or sufficient remains to fulfil that' intention, that then it is to be transferred. The answer to be given to this is, that the agree»menc contains an express covenaut to give the one-twentieth of the whole of said capital stock to the complainant, and that that cannot be qualified or restrained but by implication, which implication the rales of law will not authorize this tribunal to indulge in. The agreement is so worded that much may be urged on either side. One thing, however, is very apparent to me, that is, that all parties contemplated that, more slock would be in the hands of Varnum and Aspinwall than was necessary to pay Cowles and reimburse themselves; and that they believed that there would be stock in their {Varnum and Aspinwall’s) hands, after the sale, &c., sufficient to fulfil the covenant in favor of the complainant. Under •such circumstances, can I do violence to that apparent intention, and determine that such was not designed by the agreement? Gan I give a meaning which requires language other ■than that which has been used ? In other words, that 1 will, by implication, by conjecture, say, that though they have covenanted for the transfer of rihe twentieth part of the whole of said capital stock,’ they meant such should be the case, provided and upon the condition that the sales would pay the defendants, Varnum and Aspinwall, and leave sufficient surplus. When parties use language of a known and undoubted meaning, conveying and purporting designs which are unequivocal, would not a court be violating the law, by giving to that language a sense other than that which is conveyed by it, unless fraud or mistake is alleged, and is shown to exist?
“It is true that much may be said in regard to what might be intended by postponing the transfer until the sales, payments, &c. But, as suggested, it may be that such was intended to prevent competition in the sale of the stock by Varnum and Aspinwall, as a.sale by them was contemplated, and by the agreement was to be made, to raise funds to reimburse and provide- them a working capital, &c. It is not for me to regard the agreement as giving to the defendants a right to sell., because of that postponement. The parlies, so far from having agreed to that, have covenanted, in the plainest words, that at a certain time or period the complainant should have the ¿one-twentieth part of the whole of said capital .stock;’ the postponement to that time does not irresistibly and necessarily carry with it the conclusion, the inference that it should be sold to raise the amount of money required to reimburse the defendants, Yarnum and Aspinwall. I have shown the law to be, that an express contract cannot be changed by implication; that judges, if possible, musí gjve effect to every word of an agreement; that all the covenants are to be esteemed binding. I cannot, therefore, give the construction asked for on the part of the defendants; some distinct meaning must, if possible, be given to every word in the contract. Waters vs. Griffith, 2 Md. Rep., 326.
¿•¿Feeling myself bound by the principles of law, I must construe the agreement as 1 hav.e suggested; otherwise this court would have to disregard the covenants of the parties; would have, by implication, so to interpret the contract as to qualify, indeed destroy, the plain language of the agreement. In other words, determining that it is not possible to give some distinct meaning to every word in the contract, deciding that they have used language which, by the rules of law, impels courts to say they do not mean that which the words used manifestly import, though no fraud, mistake or surprise is alleged; that liability shall'not be fastened upon a party because he has used a certain form of expression; and that this court will look at other expressions, so as to raise a doubt and relieve the party from responsibii¡ty-^-relieve him because of probable hardship. This, according to the authorities to which I have adverted, ought not to be done by courts.
“In conclusion, I will say, it is conceded on the part of the defendants to be quite clear that the parties anticipated general profits, expecting that the land, or its representative, stock, would yield largely, more than the sums necessary to set the company in operation, and that their expectations were not made the subject of covenant on any side. And it is urged that the agreement was entered into by all parties, subject, to all the casualties of such adventures, and that the complainant should share in the general disappointment,, and loose his entire interest in the stock, <fcc. If no covenants were made for such an event,, how could a court make them? Is it the province of a court of equity to provide for such contracts as may be supposed the parlies would have made, if they had foreseen events which it is admitted they did not anticipate; indeed it is quite clear that they expected the land, or its representative stock, would yield largely more than the sums necessary to set the company in operation, &c. To give to the agreement a construction different from that which 1 have indicated in this opinion, must necessarily be upon the hypothesis that the parties intended to sell the entire stock to reimburse the defendants, Varnum and Aspinwall, if necessary for that purpose. And yet it is quile clear that all parties anticipated general profits, which could only be because a large amount of stock would remain unsold, not only the one-twentieth, but more than that; otherwise all the parties could not have expected profits. For without the possession of stock, they could not have received profits, and such was indispensable to enable any of the parties to have realized such an event. It is only by being stockholders they could have been influenced to anticipate the receipt of profits from the adventure.
“It is unnecessary for me to decide the question in regard to the legality of the sale of stock, as the opinion I entertain gives the complainant an undoubted right to the Tne-twentieth part of the stock of the Ocean Steam Coal Company.’ And as the defendants, Varnum and Aspinwall, received the whole stock, and were, by the terms of the agreement, to transfer to the complainant, that part, I will pass a decree to compel them to carry out the contract, and give the complainant that which is secured to him by that instrument. I liave, under the circumstances of this case, determined, in the exercise of the discretion vested in me, that each party shall pay his own costs,”
A decree was then passed, on the 21st of November 1859, that the defendants, Varnurn and Aspinwall, account with the complainant for the value of 500 shares of the capital stock of The Ocean Steam Coal Company of Allegany county, sold by them on the 1st o£July 1856, with interest, but if they or either of them, on or before ¿he 1st of January next, shall elect to transfer to the complainant 500 shares of the stock of said company, and shall actually transfer or cause the same to be transferred to him on or before that day, or if they shall on or before that day, in due form of law, tender a transfer of said shares, and the complainant shall refuse to accept the same, then so much of the decree as requires them to account as aforesaid, will be rescinded.
From this decree both the complainant, and Varnum and Aspinwall, appealed. The appeal of (he complainant is still pending, the present appeal being that of Varnum and Aspinwall.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
