A litigation existed between the appellants and the appellee
which was embodied in two bills, two cross-bills, their respective
answers, and the
other proceedings therein. A correspondence ensued which
resulted in a proposition for compromise and settlement on the one
side, which was accepted by the other. Subsequently it appeared
that the appellee intended and considered the agreement of
settlement to embrace a complete relinquishment and discharge of
all claims of either party against the other, while the appellants
claimed that they were to retain their disputed claims against the
appellee. The appellee thereupon filed a petition in each of the
causes, disclosing to the court the correspondence and agreement of
settlement and praying for a decree that all matters in controversy
"had been settled and compromised by the parties and are decreed
and adjudged to be finally settled, and ordering that all the cases
be dismissed." The court below, after hearing the parties, found
that there had been a full compromise and settlement by agreement
of the parties, and ordered each of the bills to be dismissed. A
motion to vacate these decrees and grant a rehearing was
overruled.
Held:
(1) That the parties intended to make a full compromise and
settlement of all claims and demands on either side, and that the
decree of the court below was right, and should be affirmed.
(2) That no objection having been raised, until after decision
rendered, to the proceeding by petition instead of by supplemental
or cross-bill, the decree should not be vacated or disturbed on
that account, especially as the appellants had appeared in answer
and opposition to the petitions, and had introduced affidavits to
support their contentions.
These cases, as stated in substance by counsel, may be described
as follows:
Page 138 U. S. 197
(1) On October 10, 1885, the Cedar Valley Land and Cattle
Company, Limited, an English corporation, filed its bill against
William N. Ewing and James M. Coburn in the Circuit Court of the
United States for the Western District of Missouri alleging that
Stewart and others, having ascertained that the defendants were
willing, in conjunction with them, to subscribe to the capital
stock of the corporation when formed, agreed among themselves to
become the promoters of a corporation for the purpose of purchasing
a ranch with the cattle and horses thereon, then the property of
one Munson, and situated in the State of Texas; that the name of
the corporation was to be the Cedar Valley Land and Cattle Company,
Limited, and that plaintiff is the identical corporation in
contemplation; that the corporation was formed January 7, 1885, and
in the preceding December, Stewart, Burnett, Campbell, and Fisher,
styling themselves plaintiff's directors and acting as plaintiff's
promoters, believing that defendants were willing to undertake and
assume the trust in behalf of the proposed corporation, directed
and requested defendants to buy the ranch, land, and cattle from
Munson for plaintiff at the very lowest terms, and defendants
accepted the trust; that on December 31, 1884, defendants, in the
name of Ewing, in pursuance thereof, concluded negotiations with
Munson for the ranch, and purchased it for plaintiff, and Ewing
entered into a written contract with Munson, which is set out at
length in the bill; that this contract was made for and in behalf
of plaintiff in contemplation of corporate existence, as was the
employment of Ewing by the promoters and the contract of purchase,
and with the intention that the contract should be adopted by the
corporation when formed and inure to its benefit; that said
contract was so adopted, and the corporation proceeded to carry the
same out, and complied with all the terms and conditions of the
contract, including the payment of the sums of money therein
provided, being $100,000 remitted December 31, 1884, $140,000 May
5, 1885, and $180,000, June 18, 1885, which moneys were entrusted
to the defendants to make such payments, and that Ewing, on the
31st of December, 1884, made a declaration of trust that the
$100,000 to be
Page 138 U. S. 198
paid on that day was the property of the plaintiff. Plaintiff
further averred that in August, 1885, it learned that in August,
1885, it learned that Coburn and Ewing had secretly agreed with
Munson for a commission for selling said property, and had received
about $40,000 from him on that account, which was retained out of
the moneys remitted, and that defendants agreed to pay Munson for
some of his cattle about $18,000 more than he had at first been
willing to sell for; and further that defendants, out of the cash
sent them by the company with which to pay Munson, had retained the
sum of $60,000, and in lieu thereof had conveyed to him a lot and
building in Kansas City belonging to them, worth not more than
$45,000. The bill prayed for a decree for such amount as defendants
might be found to have received, upon an accounting, etc.
The defendants answered, denying that they were promoters of
said corporation and alleging that all their agreements and
arrangements as to the character in which they should act in the
purchase of said ranch property were made with Burnett, one of the
persons named as a promoter and director in the bill, and that
Burnett knew that the defendants would be paid a commission by
Munson, and that the defendants were openly engaged in the business
of selling such property for a compensation, and that the services
rendered by defendants involved much labor, and were reasonably
worth a larger amount than was received. The answer also alleged
that plaintiff acquired said ranch for $100,000 less than its
actual market value, and that the only connection which defendants
had with said corporation was that after it had been organized,
Ewing subscribed to its capital stock, pursuant to a contract by
which he was appointed its manager for the term of five years.
Exceptions were filed to the sufficiency of this answer, which
were referred to a special master for examination and report. This
report was made and the exceptions set for hearing. The appeal in
this case is No. 139.
(2) On December 8, 1885, Coburn and Ewing filed a cross-bill
against the cattle company, by leave, which alleged that they for a
number of years had been partners in the business
Page 138 U. S. 199
of selling property as brokers and for a commission, and that at
all the times mentioned in the plaintiff's bill, they had the ranch
in their charge for the purpose of selling the same under an
agreement for a reasonable compensation to be paid them by Munson;
that Burnett, knowing this fact, made an agreement with them to
procure a purchaser for said property if they would share their
commission with him; that afterwards they were directed to Burnett
to buy the property upon terms and conditions and at specified
prices known to him; that they entered into the contract with
Munson pursuant to directions from Burnett, and expended a large
amount of time and labor in the transaction, a reasonable
compensation for which was alleged to be $50,000, and that some
months afterwards, the corporation, having been organized in the
meantime, entered into an agreement with Coburn and Ewing that if
they would subscribe $100,000 to its capital stock, it would
appoint Ewing its manager for the period of five years at a
stipulated salary, which proposition was accepted, the sum of
$50,000 paid on account of such subscription, and the appointment
accordingly made. The cross-bill further alleged that said
corporation had attempted to annul the contract so made with Ewing,
and without offering to cancel said subscription, or to return any
part of the money paid on account thereof, or tendering or offering
to pay the reasonable and expected profit arising from said
contract, had sought to sequester said stock, and had refused to
permit its transfer on its books, and that the market value of said
stock was $125,000, and the reasonable and expected profit arising
out of said contract was $20,000.
The cross-bill prayed for an answer to certain separate
interrogatories directed to matters peculiarly within the knowledge
of the corporation, and that upon it appearing to the court that
Coburn and Ewing were entitled to be paid a reasonable
compensation, and that it was the duty of the corporation to pay
the same, the court might decree it to Coburn and Ewing, and that
the corporation might be required to pay them the value of their
stock less any sum that might be unpaid thereon, and to pay to
Ewing the sum of $20,000 on
Page 138 U. S. 200
account of his contemplated profit out of the contract
appointing him manager of the corporation, and also for general
relief. To this cross-bill the cattle company filed a demurrer. The
appeal in this case is No. 142.
(3) On October 6, 1885, Coburn and Ewing filed their bill
against the cattle company and George D. Fisher in the Circuit
Court of Jackson County, Missouri, which alleged that in March,
1885, Ewing proposed to the defendant company, on behalf and in the
name of Coburn and Ewing, to subscribe for 2,000 shares of its
capital stock of the par value of $50 each upon the condition that
Ewing should be appointed manager of the company for the period of
five years; that this proposition was accepted, and Ewing appointed
accordingly by the directors of the corporation, and thereupon
Coburn and Ewing subscribed for the 2,000 shares and paid $50,000
in full of all assessments or calls which had been made on said
stock, and certificates had been issued to them accordingly; that
Ewing entered upon the duty of manager and had been continuously
employed therein ever since, and that on September 7, 1887, the
corporation attempted to cancel and terminate the appointment of
Ewing as such manager by written communication, setting forth that,
"in consequence of the facts which have come to the knowledge of
the board of directors connected with your purchase from Mr.
Munson," they had decided to annul his appointment, and that Fiser
was authorized to take charge of the company's property, and
requested the delivery of the same to him accordingly. The bill
also alleged that there were peculiar reasons of fitness, etc., for
the employment of Ewing, and that Coburn and Ewing would not have
subscribed or taken any shares in the capital stock but for the
contract to appoint Ewing manager; that Ewing had faithfully
performed all his duties, and had at no time given the company any
just cause for terminating his appointment, and that the contract
was of great value of Ewing, and would yield him a sum aggregating
$20,500 for the unexpired portion thereof. And the bill further
alleged that Fisher was undertaking to prevent Ewing from
performing his functions as manager, and to take out of his
possession
Page 138 U. S. 201
all property in his hands as such without offering to pay or
refund the value of the stock to Coburn and Ewing or the reasonable
damages accruing to Ewing by reason of the refusal of the company
to further perform its contract with him, and without releasing or
indemnifying him for certain liabilities he had incurred and for
which he was personally liable on account of the company, to all of
which compensation, reimbursement, and indemnity Coburn and Ewing
alleged themselves entitled before Ewing could be discharged from
said appointment and an injunction was prayed accordingly.
This cause was removed to the United States Circuit Court for
the Western District of Missouri, and the corporation answered,
alleging that no such contract was made for the appointment of
Ewing, but that the subscription of Coburn and Ewing to the capital
stock was unconditional, and that Ewing was appointed as manager,
but as an entirely separate and distinct transaction. It was
admitted that said appointment was cancelled and terminated by the
notice mentioned in the bill, and the grounds for such action were
set forth as resting practically on the same facts alleged in the
bill of the company in No. 139. The appeal in this case is No.
140.
(4) On November 23, 1885, the cattle company filed a cross-bill
setting forth the alleged employment of Coburn and Ewing on behalf
of the intended corporation; the making of the contract with
Munson; that Coburn and Ewing had received a commission from Munson
secretly; the transactions as to the property in Kansas City, and
the alleged overpayment in the purchase of cattle; the cancellation
of Ewing's appointment by reason of the premises, and alleging that
Ewing had done acts in hostility to the interests of the
corporation, which would be imperiled if he were allowed to manage
the same. An injunction was prayed restraining Ewing from acting as
such manager and in any wise interfering with the property of said
corporation. Coburn and Ewing answered, averring substantially the
same facts disclosed in their answer in No. 139, their cross-bill
in No. 142, and their original bill in No. 140. The application of
Coburn and Ewing and of the cattle company for temporary
Page 138 U. S. 202
injunctions came on for hearing in December, 1885, and the
circuit court made an order granting the temporary injunction
prayed for in the cross-bill of the cattle company. The appeal in
this case is No. 141.
The record in No. 141 discloses that upon the cross-bill there
was filed an affidavit and exhibits, which showed that a suit had
been commenced by Coburn and Ewing against the cattle company in a
state court of Texas, and an injunction obtained, which, upon the
removal of the cause to the Circuit Court of the United States for
the Northern District of Texas, was dissolved by Judge McCormick
upon the ground that where it appeared that plaintiffs had been
employed to purchase a ranch and cattle, and had secretly received
from the seller a commission, and where one of them had afterwards
obtained employment from the company as the manager of the ranch
and herd without disclosing the facts, the company had good cause
for removing him from a position obtained under such circumstances.
The opinion is reported in 25 F. 791.
June 19, 1886, the cattle company filed in each of said causes
the following "petition for a decree:"
"Now comes the Cedar Valley Land and Cattle Company, Limited, a
party to the above-mentioned suits, and petitions as the court to
enter an order or decree in each of said cases showing that the
matters in controversy therein have all been settled and
compromised by the parties, and are decreed and adjudged to be
finally settled, and ordering that all the said cases be dismissed,
the plaintiff in each to pay costs therein, and that the sureties
on the injunction bond given by this petitioner be discharged. And
in support of this application the petitioner files herewith true
copies of the written correspondence between the parties, embodying
their agreement of compromise, and on the hearing of this petition
will produce the originals thereof; also affidavit of George Dixon
Fisher."
The correspondence was as set forth in the margin.
*
Page 138 U. S. 203
The affidavits of Messrs. Fisher, McCrary, and Field were also
filed on behalf of appellees.
Page 138 U. S. 204
Fisher stated that about the 29th of April, 1886, he called upon
Coburn, and submitted to him the form of a bond to be
Page 138 U. S. 205
given by Coburn and Ewing in pursuance of the terms of the
compromise, to bind said firm not to buy up or otherwise
Page 138 U. S. 206
molest any of the range privileges of the company. The form of
the bond had been changed by striking out the words "as
Page 138 U. S. 207
part and parcel of the" in the second line, and inserting in
place thereof, "in accordance with the terms of our letter of
Page 138 U. S. 208
date February 27, 1886, accepting terms of compromise," and
Coburn added the following words: "of all pending litigation."
Page 138 U. S. 209
The first sentence of the proposed bond was therefore amended so
as to read as follows:
"That for a good and valuable
Page 138 U. S. 210
consideration, and in accordance with the terms of our letter of
date February 27, 1886, accepting terms of compromise
Page 138 U. S. 211
of all pending litigation between us and the Cedar Valley Land
and Cattle Company, Limited,"
etc. Affiant added that
Page 138 U. S. 212
he was present as a member of the board of directors of the
cattle company when the proposition of compromise was
Page 138 U. S. 213
agreed upon, and that it was intended that the same should be a
full and final settlement of all pending litigation between the
parties. The original paper referred to was attached.
Mr. McCrary testified that he had principal charge on behalf of
the company of the negotiations for compromise and settlement
between the parties; that the company and its counsel throughout
the negotiations insisted that any settlement made should end the
litigation, and the final proposition made by the company February
11th and 12th was not intended to be any departure from this
condition, but, on the contrary, was submitted by this affiant as a
proposition "to end the litigation," as appears by the letter
transmitting the same; that neither he nor the company ever for a
moment intended to settle the claims of the company against Coburn
and Ewing, leaving their claims against it to be further litigated,
and if Coburn and Ewing or their counsel had such an intention, it
was unknown to this affiant at the time the settlement was entered
into; that as soon as affiant heard an intimation that it might be
claimed that the settlement did not cover all the matters in
litigation, he wrote Coburn and Ewing the letter of February 27,
1886, which was written the same day the acceptance of the
proposition of compromise was received and before any steps were
taken on behalf of the company by affiant to carry the same out;
that if affiant had then been notified that Coburn and Ewing would
insist that only one side of the controversy was settled, he would
have tendered back the stock certificate and declined to go on with
the compromise, and that, receiving soon after the paper, filed
with Mr. Fisher's affidavit, in which Coburn described the
proposition accepted as one to settle "all pending litigation,"
affiant felt free to go on and perfect the compromise, believing
that if Coburn and Ewing intended to attempt to reserve any right
of action against the company, it must be on some cause of action
not involved in the present litigation.
Mr. Field said that he was one of the attorneys of the cattle
company, and on the 27th of February, 1886, presented to Mr. Karnes
a paper prepared after consultation with his associate counsel,
which was destroyed or misplaced by affiant
Page 138 U. S. 214
after Mr. Karnes declined to sign the same; that the principal
purpose in presenting such writing was to obtain the speedy and
formal discharge of the sureties on the injunction bond, which
purpose was explained to Karnes, though such paper did contain
stipulations as to dismissing the bills and cross-bills at the
costs of each party, respectively, all of which counsel for the
cattle company understood was already included in the settlement,
and that when such paper was presented to Mr. Karnes, he replied
that Mr. Coburn had gone to St. Louis, and that he would make no
other agreement of settlement for Coburn and Ewing, but he assured
affiant that the sureties on the injunction bond were not to be
harmed or disturbed, and affiant dropped the matter, and did not
further urge Mr. Karnes' signature to such writing.
On behalf of appellants, the affidavits of Karnes and Coburn
were filed. Mr. Karnes stated that on the 27th of February, 1886,
Mr. Field brought to his office a statement to the effect that the
settlement of that day was to be in full of all claims or demands
between the parties, and he distinctly told Mr. Field that such
paper would not be signed, but that Coburn and Ewing had settled
their matters with the cattle company on the propositions of
February 11th and 12th and the unconditional acceptance of these
propositions by Coburn and Ewing, and that this settlement would
not be supplemented by any further agreement. He further said the
letter of acceptance had been prepared with the understanding that
the terms of the compromise would be accepted only just in the way
they were proposed, and to cover nothing more, and that every
letter and paper since, so far as his knowledge extended, had been
prepared with the understanding that the settlement of February
27th spoke for itself, and that nothing was to be added thereto or
subtracted therefrom. Coburn testified that when the propositions
of February 11th and 12th were considered, all previous
propositions had been rejected; that the compromise proposed by the
company would not have been accepted had it not been supposed that
it was left open to Coburn and Ewing to assert any claim they had
for services rendered in the purchase of the ranch; that in
Page 138 U. S. 215
the early correspondence, this matter was referred to, but no
mention was made in the later correspondence of this compensations,
and consequently, to avoid any misunderstanding, the terms proposed
were unconditionally accepted; that the letter of Mr. McCrary of
February 27, 1886, was received, and submitted to affiant's
counsel, who advised him that he had distinctly informed Mr. Field
that receipts in full were not to be passed, and that there was
therefore no necessity of making any reply to Mr. McCrary's letter,
for which reason he did not answer the same; that in every step
taken in closing up said compromise, Coburn and Ewing had
distinctly refused to sign any receipts in full, or acknowledge any
settlement in full, and that in the many receipts passed, language
indicating a settlement in full was in each case stricken out, and
in lieu thereof it was inserted that the receipt was given on the
basis of the letters of February 11th and 12th and the acceptance
of February 27th; that affiant had no recollection concerning the
interlineation of the paper attached to Fisher's affidavit, but he
knew that there was no intention to convey the impression that
Coburn and Ewing intended to abandon their claim for services, and
that every step taken in the purchase of the ranch was in the
utmost good faith, and with strict regard to the interests of the
company, and Coburn and Ewing had paid to it more than they ever
received from Munson, and had received no compensation whatever for
their services in the purchase of the ranch.
A hearing having been had, the court rendered a decree in each
of the four cases, finding that there had been by the agreement of
the parties a full compromise and settlement of all the matters in
controversy in the case, and ordering, in pursuance of the
agreement, that each of the bills be dismissed at plaintiffs'
costs, to be taxed. The opinion of Judge Brewer will be found in 29
F. 584.
On the same day, Coburn and Ewing moved the court to set aside
and vacate the decree entered in each of said causes and to grant
them a rehearing, which motions were overruled, the circuit court
delivering an opinion reported in 29 F. 586. Thereupon the cases
were brought to this Court by appeal.
Page 138 U. S. 216
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
We are entirely satisfied with the conclusion of the circuit
court, upon the evidence, that all the matters in controversy
between the parties had been fully compromised and settled. The
litigation was being prosecuted upon two bills and two cross-bills
when the negotiations commenced, and involved the claims of the
company against Coburn and Ewing and the claim of Coburn and Ewing
for compensation for services rendered in the purchase of the
ranch. No reason appears for the severance of claims so intimately
connected and the reservation of the latter while the former were
settled. The proposition from Coburn and Ewing's solicitors of
November 12th embraced three distinct offers, and each offer
included compensation for services in and about the purchase. The
response to this proposition stated what the counsel for the cattle
company would recommend, the settlement so recommended "to be a
full and final adjustment of all the controversies between the
parties, and of all claims of either party against the other," and
that counsel would under no circumstances "advise the payment of
commissions to C[oburn] and E[wing,] or any waiver of the company's
right to defend against any claim that they may make on this
account." It is ingeniously argued by appellants' counsel that by
this last clause, it was intended to so exclude from the settlement
this claim for compensation as to leave it outstanding to be
litigated. But we think, on the contrary, that it was expressed
with sufficient clearness that the company would not be advised to
consider any offer of settlement except upon the condition of the
surrender of this claim, and that it was for this reason that the
negotiations were at that time terminated. Upon the 28th of
December, the negotiations were renewed
Page 138 U. S. 217
upon the basis of the terms suggested by the cattle company, and
the first letter of appellants' solicitor of that date declares
that "the terms then proposed contain substantially the correct
basis of settlement," and expresses the desire "again to move in
the direction of ending all this interminable litigation."
Appellees' counsel at once replied that, "if you can bring your
clients to agree to the terms proposed by us, let me know."
On the same day, appellants' solicitor, after going over the
matter carefully with Mr. Coburn, wrote, proposing:
"(1) That the stock of Coburn and Ewing be taken at $50,000; (2)
that Coburn and Ewing pay back to the company the $40,000 received
from Munson; (3) that the company, with American securities,
indemnify Coburn and Ewing against any claim of the representatives
of Burnett as to the $16,800; (4) that all suits be dismissed, each
party paying his own costs, all claims for damages or compensation
be waived, and full receipts passed; (5) that the salary of Ewing
up to the time of his discharge be paid to him, amounting to about
one month's pay, and that there be paid a few small items of
expenses, amounting in all to a very small sum. As I understand,
this is substantially your proposition to us."
To this, appellees' counsel responded, on January 5, 1886, that
London counsel had advised that the company could not purchase or
provide for the cancellation of the stock held by Coburn and Ewing,
and therefore that Fisher did not feel at liberty to conclude the
settlement upon the basis of taking back the stock, though he
would, if a settlement could be agreed on which would leave the
stock in the hands of Coburn and Ewing, or which would not require
the company to take it, and that he had advised Fisher, who was
leaving for London, to lay the whole matter before the board for
instructions, which he hoped would enable "us to agree with you
upon some disposition of the stock, and upon a final satisfactory
adjustment of the matters between the parties." On the 26th of
January, appellants' solicitors wrote that Coburn and Ewing would
settle
"the controversy with the company (1) by returning the $40,000
commission, and the company taking their stock at the actual price
paid by them; or (2) they will
Page 138 U. S. 218
turn over to the company 1,600 shares and retain 400; (3) in any
event, C. and E. are to be protected against any claim by Burnett's
estate, either by a release or indemnity. (4) Mess. C. and E. agree
not to buy up or otherwise molest any of the range privileges now
enjoyed by the company. (5) This settlement in no way to affect the
arrangements heretofore made concerning the W. and L. cattle, but
the same to be carried out by both parties in good faith as agreed
upon, but not to enter into this arrangement in any other way
whatever. In other words, the W. and L. cattle are in no way taken
into consideration in this settlement. (6) The balance of salary as
compensation to be paid to Mr. Ewing."
This letter should be read in connection with that of December
28th, for its apparent object was to accommodate the objection in
relation to the stock, as well as to except the W. and L. cattle.
The language in respect to the waiver of all claims for damages or
compensation and the passing of full receipts was not repeated,
but, taken in connection with the original response of the cattle
company and what had followed thereon, the cattle company and its
counsel could not have understood that there was an intentional
reservation of the question of compensation. The controversy
referred to on January 26th was the same controversy referred to in
the letter of January 8th of the same counsel, and must be held to
have covered the entire controversy in respect to which the parties
were treating.
On the 2d of February, appellees' counsel enclosed the letter
received from Mr. Fisher from New York, in answer to which
appellants' counsel, referring to the suggestions of Fisher in
relation to certain details of the settlement growing out of the
difficulty in dealing with Coburn and Ewing's stock in the company,
replied, saying, among other things, that Coburn and Ewing ought to
repay the $40,000, but, "on the other hand, this company has
received the benefits of their labor without any expense." Fisher
carried with him to London, as appellants were informed, "the
several propositions of settlement which have been under
discussion" and which bore upon their face the concession that
Coburn and Ewing no longer claimed to be entitled to
compensation.
Page 138 U. S. 219
Upon the 24th of February, the copy of the letter from the
secretary of the cattle company was sent to appellants, stating
that the board of directors had had under consideration the two
alternative offers of the 26th of January for the settlement of the
claims made by the cattle company, and that neither of these
propositions was acceptable. These alternative offers related to
the company's taking Coburn and Ewing's stock at the actual amount
paid by them, or taking 1,600 shares and retaining 400. The
secretary then proceeded to state "the only terms upon which the
board can agree to compromise the claim of the company," which
terms required the payment by Coburn and Ewing of �10,000,
�4,000 in cash or in L. and W. cattle and the remainder by a
sufficient number of shares on the basis of par value, and the
giving of security by Coburn and Ewing not to interfere with the
company's range privileges, and agreed to the indemnifying of
Coburn and Ewing against any claim from Burnett's or his partner's
executors. And the letter says that in view of the facts "that the
issue has practically been decided against Mess. Coburn and Ewing
by the same judge before whom the case will ultimately be tried,"
the amount of money received by them from Munson, and the
difficulty in placing any of the shares, etc., the board is of
opinion that the offer is favorable to Coburn and Ewing, but "is
induced to offer these easier terms with the object of settling the
matter before the general meeting of the 4th of March." This would
repay the company $50,000, instead of $40,000, but only $20,000
would be paid in cash or cattle, and the remainder in shares.
The contention seems to be that as the terms of compromise
mentioned in the secretary's letter addressed to the cattle
company's attorney did not specifically allude to the claim for
compensation, both parties had made and received propositions in
which that claim was left open to litigation, and therefore
appellants could accept the proposition contained in the
secretary's letter and at the same time reserve the objectionable
claim. But we do not agree with that view, as already indicated,
and are of opinion that Coburn and Ewing must have known that the
intention of the company was to
Page 138 U. S. 220
settle the entire matters of difference between them, and that
in no event would the company entertain any claim for compensation
on their part. This must be so, since the whole theory of the
negotiation renewed December 28th conceded the terms of the
company's solicitors in response to the proposition of November
12th as the correct basis of settlement, and those terms embraced
the rejection of the item of commission, which was so well
understood that appellants' letter of December bath expressly said
that all claims for damages or compensation were to be waived, and
full receipts passed. What the board was considering, as appellants
must be held to have known, was what appellants should pay and how
they should pay it, and it was only in regard to the disposition of
their stock that any difficulty arose in substantially arriving at
a final conclusion before Fisher went to London.
It was claimed by the company that the stock was not worth its
par value, on account of certain action on Ewing's part, which
turned out to be ill-advised, and the directors considered that
although they asked Coburn and Ewing to pay $50,000 instead of
$40,000, as offered, yet as the larger part of this was to be taken
in their stock at par, it was a liberal offer on the company's part
in view of all the other facts and circumstances surrounding the
transaction. And to this Mr. McCrary alludes in his letter of
February 24th, when he says:
"The sum demanded is nominally larger than that offered by you,
but, as it is proposed to receive payment in cattle and the stock
of the company now held by C. and E. at par, I am in hopes your
clients will consider it better to accept than to continue the
litigation."
The secretary assumed, as we think he had a right to do, that
the claim for compensation on the part of Coburn and Ewing had been
dismissed as inadmissible, and that his letter to the counsel of
the company need only name the terms upon which the company's claim
was to be compromised. The attempt, by the letter of February 27,
1886, reciting the secretary's letters, to so limit the compromise
as to reserve the right to litigate the question of compensation is
not commendable. Appellants could not in good faith restrict their
settlement in
Page 138 U. S. 221
this way, nor attribute the courtesy with which Mr. McCrary had
acted as extending to a concession which he had refused to make at
the very threshold. And when he notified Coburn and Ewing on the
27th of February that "it is understood that the settlement
embraces all the matters involved in the pending litigation in the
several suits between the parties," it was their duty, if that were
not so, to have so advised him at once.
What passed between Mr. Karnes and Mr. Field is in dispute, but
it is clear enough that it could not control so important a
difference, if it really existed. The letter of Mr. McCrary
informed Coburn and Ewing that he should wire the company of its
acceptance of the proposition, and his affidavit shows that this
letter was written before he had taken any steps to carry out the
compromise on behalf of the company. The subsequent letters in
March of Mr. McCrary and of the company demonstrated their
understanding that the entire controversy was settled, which indeed
was the only motive of any negotiations at all.
The grounds upon which the cattle company resisted the claim for
compensation are too obvious to require comment, and were the same
which justified the removal of their agent from his agency. We do
not doubt that the compromise covered all the matters in
controversy, that this was understood by the parties with whom they
were dealing, and that the latter were bound, as the court held in
the premises.
But although the decision of the court was correct upon the
merits, it is objected that the decrees in question were improperly
rendered for want of jurisdiction to proceed upon the petitions.
Undoubtedly the ordinary rule would have required the matter of the
settlement to be presented by a supplemental bill or cross-bill, or
a bill in that nature, and these decrees were rendered upon
petition only. But this objection was not raised until after a
decision rendered. Appellants appeared in answer to the
petitioners, and introduced affidavits to support their views of
the meaning to be attached to the correspondence, and they insisted
that their claim for compensation was not embraced in the
compromise, and therefore that the dismissed of the bills should be
without prejudice.
Page 138 U. S. 222
The case of
Kelsey v.
Hobby, 16 Pet. 269,
41 U. S. 277,
is decisive against this objection. A release was filed in a
chancery suit by the defendant, who moved to dismiss the bill,
which motion was opposed upon the ground that the release was
obtained by duress. The parties went on to take testimony as to the
circumstances under which the release was given, and it was held by
the Court, speaking through Mr. Chief Justice Taney:
"Some objections have been made as to the manner in which the
release was introduced into the proceedings. It was filed in the
cause, and a motion thereupon made to dismiss the bill, and it is
said that, being executed while the suit was pending and after the
answers were in and the accounts before the master, it should have
been brought before the court by a cross-bill or supplemental
answer, and could not in that stage of the proceedings be noticed
by the court in any other way. It is a sufficient answer to this
objection to say that it was admitted in evidence without
exception, and both parties treated it as properly in the cause,
and the complainant proceeded to take testimony to show that it was
obtained from him by duress, and the defendants to show that it was
freely and voluntarily given. It had the same effect that it would
have had upon a cross-bill or supplemental answer, and the
complainant had the same opportunity of impeaching it, and there is
no propriety in requiring technical and formal proceedings, when
they tend to embarrass and delay the administration of justice,
unless they are required by some fixed principles of equity, law,
or practice which the court would not be at liberty to
disregard."
In
Gilbert v. Endean, 9 Ch.D. 259, 267, Sir George
Jessel, Master of the Rolls, uses this language:
"I think a court of appeal cannot refuse to decide on the merits
where the parties in the court below argued the case on the merits
without objecting to the evidence. They must be taken to have
assented to having their rights decided on the motion according to
the usual rules governing interlocutory motions. If they wished
them to be decided otherwise, they should have objected to the
reception of the evidence. I think it is impossible for the
appellant to succeed upon that ground, not having taken that course
in the court below. "
Page 138 U. S. 223
These cases are cited by appellees, together with
Pryer v.
Gribble, L.R. 10 Ch. 534;
Tebbutt v. Potter, 4 Hare
164;
Askew v. Millington, 9 Hare 65;
Forsyth v.
Manton, 5 Madd. 78;
Wood v. Rowe, 2 Bligh 595, 617;
Rowe v. Wood, 1 Jac. and Walk. 315, 337;
Tebbutt v.
Potter, 4 Hare 164; were referred to in
Askew v.
Millington, and Vice-Chancellor Turner held, where the
agreement of compromise went beyond the ordinary range of the court
in the existing suit, and the right to enforce the agreement in
that suit was disputed, that the proper course for proceedings to
enforce it was by bill for specific performance, and not by motion
or petition in the original suit to stay the proceedings, and he
thought this must necessarily be so where the agreement itself was
disputed. But, under the circumstances, we have already held that
the petitioners' case did not fail upon the merits, and as all
parts of the agreement fell within the range of the suits and
appellants did not dispute the form of proceeding, we are of
opinion that the decrees cannot be reversed upon this ground. They
are therefore
Affirmed.
*
"Received November 12, 1885."
"Karnes and Waters will recommend anyone of the following
compromises:"
"(1) C. and E. to be paid back the money for their stock, say
$50,000."
"C. and E. to pay back the sum of $40,000."
"The company to enter its appearance in a suit to be brought by
C. and E. to determine the value of their services and commission
in purchase of property, leaving out all transactions between C.
and E. and W. B. M."
"2. The company to allow C. and E. $25,000 as their commissions
for the purchase of the ranch, C. and E. to pay balance of $40,000,
company to pay back amount of stock, each party to pay costs made
by themselves."
"3. Arbitrate by three persons, the impression that Burnett was
not connected what their services shall be, and the company then to
pay the amount set, C. and E. to pay $40,000 and company to pay
amount of stock."
"Either proposition to be finality as to all the matters
embraced in the bill filed by the Company vs. C. and E."
"
Response to the proposition of Waters and
Karnes,"
"
attorneys for Coburn and Ewing"
"Adams and Field and Geo. W. McCrary will recommend to their
client, the Cedar Valley Land and Cattle Company, a settlement with
Coburn and Ewing as follows:"
"1. C. and E. to be allowed for their stock what they have paid
on it."
"2. C. and E. to pay back to the company the sum of
$40,000."
"3. Ewing to surrender management."
"4. This settlement to be a full and final adjustment of all the
controversies between the parties and of all claims of either party
against the other."
"5. No delay of legal proceedings in consequence of these
negotiations, unless by an agreement the controversies are
ended."
"This proposition involves the surrender of the company's claim
for the profit on the sale of the Delaware Street property, to
which we think it entitled, and which will, we suppose, amount to
about the sum of $15,000, as well as other claims set forth in its
bill."
"And it involves also the allowance for the stock of C. and E.
of about $10,000 more than its present value."
"These are therefore the most favorable terms we can recommend,
and under no circumstances can we advise the payment of commissions
to C. and E. or any waiver of the company's right to defend against
any claim that they may make on this account."
"
From appellants' to appellees' counsel, December 28,
1885"
"In the matter of controversy between the Cedar Valley Land and
Cattle Company and Mess. Coburn and Ewing, it must have been
observed that I have not seemed quite in accord with those
associated with me. I have always felt inclined to some amicable
adjustment, and regretted when I was directed to terminate rather
summarily the negotiations to that end undertaken a few weeks ago.
I have now taken the liberty of addressing you this not entirely
upon my own responsibility, and I am induced to do so by a
statement made to me by Mr. Gage, a mutual friend of both parties,
to the effect that he understood Mr. Fisher that the terms proposed
by you in our former negotiation were still open for acceptance. If
such be the case, I say frankly to you that, in my judgment, the
terms then proposed contain substantially the correct basis of
settlement, and I would like again to move in the direction of
ending all this interminable litigation. I do not wish to trespass
on your valuable time, and hence I have not called to present these
views in person, but if this letter receives a favorable response,
I will see my clients and at some time when agreeable to you will
call at your office to canvass the matter more in detail. If it is
thought best by you not to negotiate further, I would be glad that
no mention be made of this letter."
"
From appellees' to appellants' counsel, December 28,
1885"
"Yours of this date received. Mr. Fisher is out of town, and
will not return until the last of the week. I think, however, he is
still disposed to settle, and if you can bring your clients to
agree to the terms proposed by us, let me know, and as soon as he
returns I will see him and advise you."
"P.S. I will not mention the matter to anyone until I hear from
you further."
"
From appellants' to appellees' counsel, December 28,
1885"
"Upon the receipt of your communication of today, I at once
sought an interview with my clients. Maj. Ewing is out of the city,
and I only saw Mr. Coburn, who thinks Maj. Ewing will agree to any
arrangement that he may make. He has much to say of the company's
injustice to them in seeking to appropriate without compensation
the result of their labor and skill in the purchase of this
property. He contends that Munson was taken at a time when for
several reasons he was very anxious to sell, and that they drove an
unusually good bargain with him. Of course, I have sought to
impress upon him that the case must be tried squarely upon the law.
I have brought myself to believe that there is not much probability
of your recovering on account of the house and the bulls, but as to
the commission of $40,000, I have frankly said that I believed the
chances were against my clients. This amount represents the whole
sum your company has lost, while it has received the benefit of
valuable services at no expense whatever. Any settlement made must
involve an entire withdrawal of the interests of Coburn and Ewing.
They insist that their stock is worth a premium, while, on the
other hand, Mr. Fisher claims that it has depreciated. I am aware
that you have the impression that Burnett was not connected with
this sale, but in this it is more than probable that you are in
error, and Coburn and Ewing have in their possession the
proportional part realized coming to Burnett, amounting to $16,800.
All these phases of the case I have gone over carefully with Mr.
Coburn, and he has become willing to settle in a way approximately
as follows:"
"(1) That the stock of Coburn and Ewing be taken at
$50,000."
"(2) That Coburn and Ewing pay back to the company the $40,000
received from Munson."
"(3) That the company, with American securities, indemnify C.
and E. against any claim of the representatives of Burnett as to
the $16,800."
"(4) That all suits be dismissed, each party paying his own
costs, all claims for damages or compensation be waived, and full
receipts passed."
"(5) That the salary of Ewing up to the time of his discharge be
paid to him, amounting to about one month's pay, and that there be
paid a few small items of expenses, amounting in all to a very
small sum. As I understood, this is substantially your proposition
to us. In a conversation with you I think you stated that you would
favor the indemnity for the $16,800. I believe there is a
controversy between Mr. Ewing and Mr. Fisher as to whether the
company owes Ewing about a month's balance on salary. This,
however, of course, can be settled by the books. If I have not made
my proposition clear I will be glad to state it more fully, and
upon Mr. Fisher's return I much hope a satisfactory adjustment can
be made."
"
From appellees' to appellants' counsel, January 5,
1886"
"We were advised by the counsel of the Cedar Valley Land and
Cattle Company in London that the company has no right either to
purchase or provide for the cancellation of the stock now held by
Coburn and Ewing. In view of this advice, Mr. Fisher does not feel
at liberty to conclude the settlement upon the basis of taking back
the stock. If we could agree upon any settlement which would leave
the stock in the hands of Coburn and Ewing, or which would not
require the company to take it, Mr. Fisher would feel at liberty to
act in the matter; but, as I assume that this cannot be
accomplished, I have advised Mr. Fisher, who leaves for London in a
few days, to lay the whole matter before the board and give us
instructions which will, I hope, enable us to agree with you upon
some disposition of the stock and upon a final satisfactory
adjustment of the matters between the parties."
"
From appellants' to appellees' counsel, January 8,
1886"
"Your note of the 5th instant was duly received, stating that no
further action could be taken in the matter of settling the dispute
between the C. V. L. & C. Co. and Mess. Coburn and Ewing until
Mr. Fisher had additional instructions from his company. I have
delayed answering until I could confer with Mess. C. and E., which
I now have done. They greatly regret the delay that will be
necessarily occasioned, as they hoped for a speedy termination of
the controversy. I have urged upon them that they allow me to
continue my efforts for an adjustment. This they have done with the
understanding that I request you to ask Mr. Fisher to report by
cable at the earliest possible moment whether the proposition will
be accepted. This is a matter involving so large an amount and
requiring the taking of testimony at so many and such remote points
that I assume that we are agreed as to the importance of
determining this negotiation one way or another as soon as the same
can be reasonably done."
Awaiting your further advice, I am, very truly.
"
From appellees' to appellants' counsel, January 11,
1886"
"I have arranged with Mr. Fisher to cable me instructions from
London as to compromise of the controversy between Coburn and Ewing
and the C. V. L. and C. Company. I will advise you promptly when
instructions are received."
"
From appellants' to appellees' counsel, January 26,
1886"
"Mess. Coburn and Ewing have 2,000 shares in the C. V. L. and C.
Co., �5 each paid, amounting to about $48,800. They will
settle the controversy with the company"
"1. By returning the $40,000 commission and the company's taking
their stock at the actual amount paid by them; or"
"2. They will turn over to the company 1,600 shares and retain
400."
"3. In any event, C. and E. are to be protected against any
claim by Burnett's estate, either by a release or indemnity."
"4. Mess. C. and E. agree to buy up or otherwise molest any of
the ranch privileges now enjoyed by the company."
"5. This settlement in no way to affect the arrangements
heretofore made concerning the W. and L. cattle, but the same to be
carried out by both parties in good faith as agreed upon, but not
to enter into this arrangement in any way whatever. In other words,
the W. and L. cattle are in no way taken into consideration in this
settlement."
"6. The balance of salary as compensation to be paid to Mr.
Ewing."
"
From appellees' to appellants' counsel, February 2,
1886"
"I enclose herewith a letter just received from Mr. Fisher from
New York, which explains itself. Mr. F. carries with him to London
the several propositions of settlement which have been under
discussion. Will you kindly advise me what response Coburn and
Ewing have to make to the terms suggested in this letter? If
possible, I should like to be advised in time to write Mr. Fisher
tomorrow, as requested. Please return Mr. Fisher's letter."
"
From Fisher to appellees' counsel, 29th January,
1886"
"As I wired you yesterday, I am unfortunately here till tomorrow
at 2 P.M., in consequence of the steamer I intended sailing with
yesterday being disabled. I am sorry at this, as I am anxious to
get to London to consult with my co-directors. I have been thinking
a good deal over the best way to arrange a compromise with C. and
E., but in every shape I take it, it is always saddled with the
difficulty of dealing with their stock. No one, of course, would be
fool enough to take their shares at par when it is so generally
known, and by none better than by C. and E. themselves, that the
value of all cattle shares are not within 20 percent of what they
were, and, as the company itself can neither buy nor cancel, it is
most perplexing. The following is a proposition that has occurred
to me that C. and E. might submit to the board: C. and E. agree to
pay Co. the $5,000 commission, with interest thereon at the rate of
eight percent per annum for the time they have had it; C. and E. to
retain their stock in company by the directors getting for them an
advance on it for $40,000 at the rate of interest of ten percent
per annum, said advance to go to liquidate the debt to the company,
C. and E. besides paying the company's expense in connection with
this litigation. This arrangement would enable C. and E. to hold
their stock, which they appear to value so highly, until such time
as they could sell it at par, or possibly in two years at a
premium, and at the same time refund the $40,000. The company would
in this case not commence proceedings for damages caused by turning
back the cattle. If you think well of this project, you can see
Karnes about it, and, if C. and E. are disposed to make the above
proposition, cable the word 'consent' on 8th February, the day I
expect to get to London. Frankly, I must say this is a more
favorable settlement than I would give them, as I am satisfied
there is more in the real estate than $15,000, but under the
circumstances might be accepted by the board. Of course, if there
is no cablegram, I will understand they will not make this
proposition; in any case, write not later than Wednesday."
"
From appellants' to appellees' counsel, February 2,
1886"
"I am just in receipt of your letter of today, including a
letter from Mr. Fisher from N.Y. which I herewith return to you.
You have heretofore seen fit to express your appreciation of what I
had done and was doing to get this controversy settled, and hence I
need not restate my endeavors in the matter. I am only sorry to see
Mr. Fisher taking the position indicated by his letter. I am
convinced that Mr. Gage was correct in his opinion that he, F. was
unfavorable to any settlement. The terms proposed in his letter I
have not submitted, nor will I submit, to my clients. I have been
satisfied from the beginning, and am still satisfied, and have so
stated to Mess. C. and E., that they are liable in law for the
return of the $40,000, but I don't believe they are liable any
further. This they ought to repay. On the other hand, this company
had received the benefits of their labor without any expense. There
ought to be some recognition of the equities of the case. On such a
basis, I have tried to have an adjustment made; but if it is the
determination of Mr. Fisher to drive these men to the wall, then
there is no alternative left but to fight. I shall still hope,
however, that through the cooperation of yourself and Mr. Gage, a
fair and just settlement may be made, and that the damage to the
interests of all concerned, to which Mr. Fisher's rashness will
lead, may be avoided. As Mr. Fisher mentioned my name in his
letter, I would be glad to have him furnished a copy of this."
"
Cablegram"
"From London Kansas City"
"Ewing's proposals declined. Letter posted today, enclosing
complete answer to cross-bill, and conveying the only terms which
will be accepted. Inform Ewing."
"
From appellees' to appellants' counsel, February 24,
1886"
"I enclose copy of letter, just received from the secretary of
the Cedar Valley Land and Cattle Company, submitting the only terms
upon which the company will settle with Coburn and Ewing. The sum
demanded is nominally larger than that offered by you, but as it is
proposed to receive payment in cattle and the stock of the company
now held by C. and E. at par, I am in hopes your clients will
consider it better to accept than to continue the litigation."
"If this proposition is accepted, please advise me before March
4th."
"
From Coburn and Ewing to appellees' counsel, February
27, 1886"
"On February 4th, 1886, you handed to J. V. C. Karnes, Esq., one
of our counsel, a copy of a letter which you had just received from
the secretary of the Cedar Valley Land and Cattle Company, which is
as follows:"
"The Cedar Valley Land and Cattle Company, Limited"
"Moorgate Street Chambers, London, E. C., Feb. 11, 1886"
" Dear Sir: The board have had under their very careful
consideration Mess. Karnes and Waters' letter, dated the 26th of
January, 1886, containing two alternative offers by Mess. Coburn
and Ewing for the settlement of the claims made by the Cedar Valley
Land and Cattle Company upon them."
" I am instructed to inform you that neither of these
propositions is acceptable, and that the action against Mess.
Coburn and Ewing must proceed. With that view, the answer to Mess.
Coburn and Ewing's cross-bill has been forwarded to Mess. Adams and
Field, along with a letter from the solicitors of the company."
" The company being liable in a large sum of costs, which will
not be recovered from Mess. Coburn and Ewing, the only terms upon
which the board can agree to compromise the claim of the company
are as follows:"
" 1. That the amount payable to the company by Mess. Coburn and
Ewing be 10,000, the amount paid by them for the 2,000 shares now
standing in their names."
" 2. That this amount, �4,000, shall be paid in cash, or,
in lieu thereof, that the cattle of the L. & W. herd now upon
the Cedar Valley ranch shall be accepted as cash, when counted over
this spring, upon a valuation to be made by two valuers, one chosen
by Coburn and Ewing and one by the company, the valuers appointing
a referee."
" 3. That the balance then remaining due to the company will be
discharged by the transfer to such person or persons as may be
named by the board of a sufficient number of Mess. Coburn and
Ewing's shares on the basis of a par value, the shares then
remaining in the hands of Coburn and Ewing to be held by them for a
period of not less than two years."
" 4. Mess. Coburn and Ewing to give security that they will not
buy up or otherwise molest any of the range privileges now enjoyed
by the company."
" 5. That the company agree to protect Coburn and Ewing against
any claim from the executors of the partner of the late Geo.
Burnett. When the board consider (1) that the issue has practically
been decided against Mess. Coburn and Ewing by the same judge
before whom the case will ultimately be tried; (2) that Mess.
Coburn and Ewing have received from Mr. Munson the sum of $75,000
for a property which, in the written estimate of six of the eminent
valuers in Kansas City, is worth from $45,000 to $50,000; (3) the
almost insuperable difficulty which the board will have in placing
any of the shares transferred by Mess. Coburn and Ewing, in
consequence of the nonpayment of a dividend, resulting from Mr.
Ewing's vindictive or ill judged action in ordering the beeves back
to the ranch, and (4) the interest upon the amount of commission
obtained in various ways from Mr. Munson from the period of its
receipt up to the present date, which, we are advised, would be
recoverable from them by an action at law, the board is of the
opinion that the foregoing offer is more favorable to Mess. Coburn
and Ewing than the latter had any right to expect. The board,
however, is induced to offer these easier terms with the object of
setting the matter before the general meeting of the 4th of March.
It is therefore to be distinctly understood that this proposal only
remains open until the 3d of March, and that failing the receipt on
or before that date of a telegram announcing that Mess. Coburn and
Ewing have signed an agreement embodying the above terms, the offer
now made by the board is withdrawn on that day. It will suit the
company infinitely better to receive the amount of their claim in
cash, as would be the case when a judgment has been recovered in
their favor, than to have to deal with any large number of shares
transferred by Mess. Coburn and Ewing. It is to be understood that
the offer is to be made without prejudice to any claim for damages
which the board may have against the executors of the partner of
the late George Burnett. The directors desire me to add that in the
event of the foregoing offer being refused, they will feel it their
duty in the interests of the shareholders to claim full
compensation for damages which the company have sustained under
various heads, which are clearly attributable to the account of
Mess. Coburn and Ewing."
" I am, dear sir, yours truly,"
" JAMES E. WEBB,
Sec'y"
" Geo. W. McCrary, Kansas City, Mo. U.S.A."
"And on February 26, 1886, you sent to Mr. Karnes the original
letter you had on that day received from the same party, and which
was as follows:"
" The Cedar Valley Land and Cattle Company, Limited"
" Moorgate Street Chambers, London, E. C., 12th Febr., 1886"
" Dear Sir: In reading over the letter which I had the pleasure
to address to you yesterday I noticed two points in reference to
which I would like to make some observations."
" The sum of �10,000 is fixed as the damages to be paid
by Mess. Coburn and Ewing, and it is added that this sum was the
amount paid by Mess. Coburn and Ewing for their shares. Seeing that
there is no connection whatever between the claim for damages and
the payment of shares, it is advisable that the words 'the amount
paid by them for the 2,000 shares now standing in their names' be
eliminated from the letter if you think advisable to read it or
give a copy of it to Mess. Coburn and Ewing."
" The words 'vindictive or ill judged,' on page 3 of the letter,
should also be eliminated, as Mr. Ewing, in his letter of 24th
October last, stated that he was acting for the best interests of
the stockholders in turning back the beeves. These words are
unnecessary, although the directors could not possibly approve a
step which precluded the possibility of paying a dividend, the
nonpayment of which would have, as had been fully explained to Mr.
Ewing, such an injurious effect on an English company. If Mess.
Coburn and Ewing should prefer to deliver the cattle of the L.
& W. herd, now on the Cedar Valley ranch, the transfer of the
�12,000 would be accepted by the board at present, leaving
the balance of �4,000 to stand over in the meantime."
" If the valuation of the L. W. herd shall eventually fall short
of that sum, the balance of such valuation to be made up to the
company by the transfer of an equivalent number of shares in the
company on the basis of a par value, the boarding of the above
cattle to be paid for at the time of transfer at the agreed-on
rate, $1.50 per head."
" The board is quite ready to agree to Mr. Ewing's stipulation
that he shall be paid his salary during such time as he remained in
the service of the company, whatever amount may be found to be due
to him upon a proper adjustment of accounts. Will you kindly bear
these points in mind in dealing with the other side?"
" I am, dear sir, yours truly,"
"JAMES E. WEBB,
Sec'y"
" Geo. W. McCrary, Esq., Kansas City, Mo. U.S.A."
"Both of these communications, together with your two letters
forwarding them to Mr. Karnes, he has placed in our hands. In
connection with both our counsel, we have fully considered the
terms of this proposition. We wish to state emphatically that we
regard the proposition as unjust and oppressive, but we have so
much involved in this litigation that we agree to and accept the
terms of the offer made. The �4,000 will be arranged for
with the L. W. cattle, as suggested in the letter of February 12th,
and the 1,200 shares of stock therein mentioned we herewith hand
you, to be transferred to such parties as may be named. We have
only two certificates of one thousand shares each, and we deliver
both to you, and the company can return us a certificate for 800
shares. The bond called for by the fourth section of the
proposition in the letter of February 11th we will give at any
time. It will now soon be the season when the L. W. Cattle can be
counted, and we will be ready at once to name valuers. Now that a
settlement has been effected, we hope there will be no delay in
carrying it out in all respects as agreed upon."
"We desire to express to you our thanks for the uniform courtesy
with which you have treated us throughout this unpleasant
matter."
"We are, dear sir, very truly,"
"W. N. EWING"
"JAMES M. COBURN"
"COBURN and EWING"
"
From appellees' counsel to appellants, February 27,
1886"
"Mr. Karnes has handed me your letter accepting the terms of
compromise proposed by the Cedar Valley Land and Cattle Company,
and has also placed in my hands the certificates for the two
thousand shares of stock held by you in the company. I will wire
Mr. Webb, secretary of the company, that you have accepted in
writing the company's proposition and have written him requesting
that the company take immediate steps to choose a valuer, and
proceed with as little delay as possible to close up the matter of
the compromise. Of course, it is understood that the settlement
embraces all the matters involved in the pending litigation in the
several suits between the parties. The matter of costs and the
balance due you on salary can easily be adjusted hereafter. Col.
Karnes and I agree that each party pay its own costs."
"
From appellees' to appellants' counsel March 18,
1886"
"I am just in receipt of a letter from James E. Webb, secretary
of the Cedar Valley Land and Cattle Company, Limited, of date March
6th, of which I enclose you a copy. Mr. Webb sends me with this
letter an assignment to be executed by Messrs. Coburn and Ewing,
transferring to him 1,200 shares of their stock in said company.
When Mr. Webb wrote this letter, he had not received my
communication written on the 27th of February, informing him that
Messrs. Coburn and Ewing had placed in my hands their certificates
for the whole 2,000 shares, and had requested that the company
would issue to them a new certificate for 800 shares. That letter
would reach London about the 7th inst, and an answer may be
expected very soon. Probably it would be better to take no further
action until it is received."
"
From Webb, secretary, to appellees'
counsel"
"London, E.C., 6 March, 1886"
"Dear Sir: I have to acknowledge the receipt, on the 27th
February, of your cablegram of that date reading: 'Terms proposed
accepted by Coburn and Ewing today in writing.' That telegram was
laid before the board at their meeting on the 3rd inst., and I am
directed to inform you that they are glad that a settlement has
been arrived at upon terms which they believe will be found upon
consideration to be satisfactory to all parties. The board is
prepared to find that all the obligations entered into by Mess.
Coburn and Ewing will be faithfully and honorable carried out by
these gentlemen, and they trust that amicable relations will be
resumed and will continue uninterruptedly for the future. With a
view to the carrying out of the provisions of the agreement with
Mess. Coburn and Ewing, I now enclose a transfer of 1,200 shares,
to be executed in my favor, and the company undertake that if the
value of the L. W. herd shall exceed the sum of �4,000, the
difference shall be adjusted by their transfer to Mess. Coburn and
Ewing of shares to an equivalent value."
"Awaiting confirmation by letter of your cablegram of the
27th."
"
From appellees' to appellants' counsel, March 27,
1886"
"I am now advised that the Cedar Valley Land and Cattle Company
cannot issue the new certificates for eight hundred shares of stock
to Coburn and Ewing, as per terms of compromise, until the latter
have assigned the twelve hundred shares. They therefore wish Mess.
C. and E. to execute the enclosed assignment, to be sent by me to
London. This done, they will immediately execute and send over the
new certificate for eight hundred shares."
Please have the assignment executed, and return to me at the
earliest time practicable, as I wish to forward it without
delay.
