MERRIAM V. LAPSLEY.
corporation in the administration of his trust, but hIs trust relates only to the corporate assets. As trustee for creditors he represents them in following the assets of the corporation, and can assert their rights in cases where the corporation could not have been heard. He is not a trustee for creditors in relation to assets which belong to them individually, or as a body. Bristol v; Sanford, 12 Blatchf.341. As is said in Curtis. v. Leavitt, 15 N. Y. 44:
"He is by law vested with the estate of the corporate body, and takes his title under and through it, It is true, indeed, that he is declared to be atrustee for creditors and stockholders; but this only proves that thllY are the beneficiaries of the fund in his hands, without indicating the sources of his title · or the extent of his powers."
The liability of the stockholders to creditors may be regarded I\.S a collateral statutory obligation of the stockholders for the benefit of the creditors, by which the former become sureties to the latter for the debts of the corporation. Hicks v. Burrts, 38 N. H. 145. It matters not whether it is an obligation to each creditor severally or to all jointly; in either case the oharacter of the obligation is the same. Neither a receiver, an assignee in bankruptcy, nor an assignee under a voluntary general assignment for the benefit or creditors, each of whom represents creditors as well as the insolvent, acquires any right to enforce a collateral obligation given to a creditor or to a body of creditors by a third person for the payment Qf the debts of the insolvent. The demurrer is sustained.
NOTE. See, generally, Shaw v. Boylan, 16 Ind. 384; Todhunter v. Randall, 29 Ind. 275; Carne v. Brigham, 39 Me. 35; Ochiltree v. RaiZ,'oad Co. 21 Wall. 249; Carey v. Galli, 94 U. S. 672, .As to the rights of cr!lditors, sea Winter v. Baker, 34 How. Pr.183.
(Circuit Court, W. D. Missouri, W. D. Ootober, 1880.)
CoNTRACT FOR EXCHANGE OF
LANDS. Where plaintiff, one party to a contract, acts with full knowledge 8S to his own property, as well as the other property for which he is bargaining, while be said defendant, the other party, on account of non-residence, can to know his own property, and knows nothing whatever of the property he ia trading for, the plaintiff is held. to the strictest and fullest disclosures.
ACCEPTANCE BY LETTERr-WITHDBA WAL-EQUITIEs.
Where defendant signifies by letter addressed to the plaintiff his willingness to exchange prbperty with plaintiff, and defendant, soon after mailing his letter, discovered his mistake as to the location of plaintiff's land, and wrote anothr letter withdrawing his proposition, but which letter did not reach plaintiff until after the latter had conditionally accepted the proposition also by letter, and who hastily and in a somewhat extraordinary manner took posscssion of the property of defendant., held, that the equity is with defendant, and judgment will be for restitution of possession of the premises, and an accounting in favor of defendant.
In Equity. Bill for specific performance.
KREKlIlL, D. J. This case comes here by change of venue from · Cass county, Missouri; and in a controversy between Merriam, a resident of Plesant Hill, Cass county, Missouri, and Lapsley, a resident of the state of Kentucky, plaintiff, Merriam, claims that he agreed with defendant, Lapsley, to exchange certain improved real estate in Pleasant Hill, Cass oounty, Missouri, owned by defendant, for improved real estate in the state of Kansas, owned by Merriam. The transaction commenced by Merriam writing to Lapsley, offering to exchange his Kansas lands for Lapsley's Pleasant Hill house and lot. A correspondence is thereupon had, and it is claimed- by Merriam in his bill that an agreement was reached under which he took, and now holds, possession of the Pleasant Hill property. All theinformation Lapsley ever had regarding the Kansas lands of Merriam came from Merriam through letters in evidence. It seems that Lapsley, under an erroneous impression regarding the location of the land as to railroad improvements, expressed himself at one time willing to exchange, and so. wrote Merriam, but soon after writing and mailing his letter discovered his mistake, and wrote withdrawing his proposition. This letter of withdrawal did not reach Merriam until after he, as he claims, had accepted Lapsley's proposition, and so 'advised Lapsley by letter. Had this letter of acceptance on part of Merriam been unconditional, the case, under all the evidence and the law as found in the adjudicated cases, would have been in favor of plaintiff. But the letter of acceptance is not an unconditional one, but in it occurs the following language:
.. I have some rails or posts, or both, which Mr. Sutton [the agent of Merriam] wrote me about selling, which I think were near the stable, which I reserve. He also wrote me there were a good many peach trees that would be wanted this spring, and I told him to sell them, where they were too thick, lor two cents apiece, and have them thinned out, but, of course, if any trees sold after this time, the sale will belong to you."
Thus it appears that Merriam, not only makes reservations not mentioned in any of his former correspondence spoken of, but seem2 not to have known even himself what had been done under his instructions regarding the sale of peach trees, a matter which Lapsley was entitled to know in order to determine for hil;llself whether he would take the land after he had been advised of the condition of things. These may appear slight deviations or conditions, but are proper to he seized upon by the chancellor to prevent injustice. The whole case, under the evidence, presents one in which one party acts with full knowledge as to his own property as well as the other property for which he is bargaining, while the other, on account of nonresidence, can scarcely be said to know his own property, and who knew nothing whatever of the property he was trading for. Under such circumstances Merriam is held to the strictest and fullest disclosures. While it cannot be said that plaintiff made direct misrepresentations, (for the value put upon his Kansas land, and the value thereof testified to by others, may be said to be within the range of allowance by one who estimates t·he value of his property in a trade,) yet the description of the land, and especially of the improvements, when examined under the testimony in the case, is well calculated to impress the mind more favorably than the facts testified to would do. The hasty and somewhat extraordinary manner in which plaintiff took possession of the property of defendant, without awaiting a reply to his conditional letter of acceptance, is "\'Vell calculated to leave the impression that he largely relied on getting hold of the property in overcoming any obstacles to the consummation of the trade which might be imposed, thus anticipating, as it were, what has occurred. On the whole, I am well satisfied that the equity is of the court will be that plaintiff with defendant, and the deliver up the possession of the premises to Lapsley on or before the first of June next; that an account of the rents, repairs, and payment of taxes be taken, so that judgment may be rendered in this regard for a specifio and proper amount.
BIioWNING and others
(Circuit Court, E. D. Missouri.
INJUNCTION BOND-WHAT NOT COVERED BY.
January, 1881. )
An injunction bond conditioned to "abide the decision which shall he made thereon, [the original suit,] and pay all sums of money, damages, and costs that shall be adjudged against them if said injunction shall be dissolved," does not and its costs, nor the attorney's cover the amount of the original fees.
2. DISSOLUTION OF INJUNCTION-REMEDY ON THill BOND.
Whcther a court of chancery in dissolving an injunction will itself proceed to assess damages resultlDg therefrom, or drive the defendant to an actlOn at law on the bond, not decided.
In Equity. John H. Overall, for the motion. Edwaril McCabe, contra. TREAT, D. J. A suit in equity was instituted by plaintiffs, and on their motion a provisional injunction issued to restrain proceedings at law on a judgment in a state court. . An injunction bond was given as required, with sureties conditioned to "abide the decision which shall be made thereon, [the original suit,] and pay all sums of money, damages, and costs that shall be adjudged against them, if said injunction shall be dissolved." Said injunction was dissolved and the bill dismissed. A motion is now made for the assessment of damages, to-wit: the amount of the judgment in the state court, $619; costs in state court, $25; attorney's fee in injunction suit, $200. It is clear that the bond did not cover the amount of the original fee. Bein v. Heath, 12 judgment and its costs, nor the How. 176; Oelrichs Spain; 15 Wall. 230.. To the same effect are the Missouri cases cited. Another question was suggested in the light of the authorities produced, viz.: whether a court of chancery, in dissolving an injunction, would itself proceed to assess damages resulting therefrom, or drive the defendant to an action at law on the injunction bond. The motion before the court does not call for a decision on that point, although nothing is seen in the cases cited to deprive the chancery court of its power to finally determine the controversies between the parties before it. The case of Bein v. Heath was an action on an injunction bond, and the dicta in the opinion are very strong. In that case the cou!"t