Volume 11 — Delaware Chancery

<p>Motion to Strike from the Record an amendment to the Information, which was in the nature of a new Information. The facts, in addition to those appearing in the report of the case 10 Del. Ch. 384, 93 Ail. 364, are stated in the opinion of the Chancellor. See also post p. 15, 95 Ail. 303.</p>

Bill to Enforce an Equitable Assignment to the complainant of two insurance policies on the life of Isaac J. Gilkey, deceased. The facts are stated in the opinion of the Chancellor.

Information to Restrain Payment of Money. A demurrer to the original information was overruled (10 Del. Ch. 384, 93 Atl. 364), and all the defendants, except one of the Board of Assessment, Revision and Appeals, who had died, filed answers.

Statement. The testator directed the payment of his debts, devised one parcel of land to the defendant, Carrie S. Sharpe, devised two others to a life tenant (now dead) with remainder to Daisy Edna Christy, made a few specific legacies of personal property, and gave “all the residue and remainder” of his property to Daisy Edna Christy above mentioned. His personal estate was appraised at $37.47.

The facts alleged in the original bill are set forth in the report of the opinion rendered on the rule requiring the defendants to show cause why a preliminary injunction should not be issued, 10 Del. Ch. 195, 87 All. 1006, and the additional facts alleged by amendments and the answer of Rosenheim and Son, (the other defendants being formal parties,) as well as the allegations of the cross-bill, amendments and answer thereto, are sufficiently stated in the opinion.

Petition for Set-Off. The Securities Company of North America was incorporated under the laws of this State in 1904 for the purpose of collecting and investing savings of individuals who desired to participate in the plans of the company, and engaged in business until August 25, 1915, when pursuant to action of two-thirds of all the stockholders it was dissolved, and on September 22, 1914, the Wilmington Trust Company was appointed receiver to wind up the affairs of said…

Statement of the Case. Receivers having been appointed for the United Leather Company on the ground of its insolvency, it was found that certain book accounts representing sales-made by the company of leather had been assigned by it as collateral security for notes made or indorsed by it and held by the Security Trust and Safe Deposit Company.

Statement of the Case. The receivers of the Horrigan Contracting Company filed a petition setting forth that at the time of their appointment the Levy Court of New Castle County held $3,710.85 pursuant to five contracts under which the company had built certain County roads, and by which contracts five per cent, of the contract price was withheld to cover any repairs which were required to be made within a year from the completion of the road.

Information to Restrain a Nuisance. This was an information by the Attorney General of the State, on the relation of two persons, against certain named persons as officers and members of the club and against the unnamed members of the club. An appearance was entered not only for the persons named, but also for the club as an organization, and a sworn answer was filed by the defendants.

Bill to Set Aside a Conveyance. The complainants, John W. Killen and his wife, by the bill allege that Mr. Killen, •owning a farm of about three hundred acres with a mill and mill pond thereon, on March 1, 1913, leased in writing to one of the defendants, William B. Purdy, and others, for ninety-nine years, all the water rights and the exclusive right to fish in the pond, the annual rent being one dollar.

Petition for the Reclamation of Machinery. The Turner Tanning Machinery Company filed, a petition of reclamation of an _ oiling off machine delivered to the United Leather Company in November, 1913, and it was claimed that there was a misunderstanding as to the price of it, as shown by' the correspondence; and further that it was sent on trial; was never accepted by the buyer; and all the. bills rendered by the seller to the company showed on the face thereof that the…

In the matter of the petition signed “Kehoe Stenograph Company, by H. C. Dunlap, President,” praying that the answer heretofore filed in the cause, signed “Kehoe Stenograph Company, by Julius Strauss, President,” be stricken from the records of said cause, and for permission to file in place thereof an answer accompanying the petition, signed “Kehoe Stenograph Company, by H. C. Dunlap, President.” The cause was heard on petition, answer, affidavits, oral testimony of…

Motion to dismiss the Bill of Complaint. The bill was filed. May 27, 1915, by Sill, alleging himself to be a creditor of the company based on a promissory note made by it, but not then due, and also a stockholder of the company, the object of the bill being the appointment of a receiver based on insolvency.

Exceptions to Claims. The Securities Company of North America was incoprorated in August, 1904, under the laws of Delaware for the purpose of engaging in the business of making contracts with individuals, which were evidenced by bonds or certificates of three classes.

<p>Statement of the Case. At the time receivers were appointed by this court for the United Leather Company, based on its insolvency, there were on the premises of the company twelve boxes containing leather, each box being marked “Property of Security Trust and Safe Deposit Company.” There being a dispute as to ownership of the leather, it was not appraised as part of the assets of the company; but afterwards by agreement of the trust company and the receivers the Chancellor made an order for the sale of the leather, all rights to the leather to be transferred to the proceeds of sale. Pursuant to the order the receivers sold the leather for $5,810.60, and by its petition the Security Trust and Safe Deposit Company claims all of the money, the receivers by their answer thereto also claiming it.</p> <p>From the testimony produced at the hearing of the petition it was shown that the leather in question was made by the United Leather Company and sent at various times to two of its factors, or agents, one in London and the other in Cincinnati, to be by them sold on commission, and later, and before the receivers were appointed, the unsold leather was returned to the principal and constituted the contents of the twelve boxes, five from the London factor and seven from the Cincinnati factor. It was also shown that the Security Trust and Safe Deposit Company in 1912 agreed to give to the United Leather Company a line of credit not to exceed $40,000, loaning to it money from time to time, for which notes were given payable on demand, the borrower giving as collateral security assignments of the invoices for leather sold and leather shipped to factors. A large number of such accounts were at various times so assigned as collateral for the several notes (about twenty in all) made at different times. With each- note was a list of consignees of leather and to the list was added an assignment of the several invoices as collateral for the particular loan, stating the date and amount, and that it was a demand loan. As the moneys were received from the consignees for the leather sold they were paid to the Security Trust and Safe Deposit Company on account of the advances made by it on the leather. At the outset these moneys were credited as payments on the particular notes for the payment of which they were severally and respectively assigned. But later it was found difficult to do so, and it was verbally agreed that the moneys received from the consignees should be credited generally on the indebtedness of the United Leather Company to the Security Trust and Safe Deposit Company and be applied to the payment of the oldest note and the balance applied to the later ones, though all the notes were payable on demand. In 1914, long before the appointment of the receivers, the United Leather Company receivéd back from the two factors the leather in question, being leather which had been shipped to them at various times, and represented by several invoices assigned with other" invoices to other persons as collateral for notes. The leather was the unsold leather belonging to the United Leather Company in the hands of the two factors. By direction of the president of the United Leather Company, when and as received, the boxes were marked as being the property of the Security Trust and Safe Deposit Company, and on each of the invoices for the leather returned a notation was made that it was an invoice of leather assigned to the Security Trust and Safe Deposit Company. It was explained by the president of the United Leather Company that the leather and the invoices therefor were so marked because it was considered that the Security Trust and Safe Deposit. Company had a right to the leather, by having made advances on account thereof, and when returned unsold its right therein should be preserved, the leather standing in place of the invoice therefor which had been assigned to the Security Trust and Safe Deposit Company.</p> <p>Testimony was taken orally before the Chancellor, and the cause was argued by counsel.</p>

Bill for Specific Performance. The bill in this case is one to enforce specific performance of a written contract for the sale by the complainant to the defendant of ¿ tract of land situate in the City of Wilmington, with a front of ninety feet on Market street and King street and about two hundred and ten feet on the south side of Tenth street, together with an easement of light and air over a strip of land on the south fifteen feet wide, the consideration being two hundred…

Petition by Trustee to Surcharge former Trustees with alleged losses on investment securities. Martin Lane and Huxley Harvey were appointed trustees of the sum of $100,000 by item ten of the will of Jesse Lane, deceased, and performed their duties as such until the death of Huxley Harvey. Thereupon, Martin Lane, the surviving trustee, resigned and the Security Trust and Safe Deposit Company was appointed by the Chancellor trustee under said item ten of the' will.

<p>Bill to Enforce Specific Performance of a contract to sell land. On September 28, 1914, William B. Chandler and wife conveyed to Joshua B. Chandler a lot of land in the town of Dagsboro, Sussex County, Delaware, with full, knowledge on the part of William B. Chandler and Joshua B. Chandler of the suit brought by the complainant against William B. Chandler for the specific performance of a contract entered into between the complainant and William B. Chandler for the sale of the same lot of land (10 Del. Ch. 339, 92 All. 256), a decree requiring William B. Chandler to specifically perform said contract having been entered in that suit on September 26, 1914. After the conveyance above referred to had been made, Long, the complainant, tendered to William B. Chandler the balance of the purchase money and requested a deed for the premises, which was refused, and this bill was filed for the purpose of having Joshua B. Chandler convey the premises to Long and to have the deed from William B. Chandler and wife to Joshua B. Chandler declared invalid.</p> <p>The cause was heard on bill, answer, depositions and exhibits.</p>

Statement of the Case. William L. Williams by deed duly executed, dated January 22, 1884, conveyed to the complainant, then his wife and now-his widow, for the consideration of seven hundred dollars, as stated therein, a tract of land in Sussex County.

Statement of the Case. The Arlington Hotel Company, contracted with the Thompson-Starrett Company for the erection of a hotel in Washington, D. C., and among the materials to be used therein was .certain structural steel, which was billed by the American Bridge Company to the Arlington Hotel Company and consigned to the Thompson-Starrett Company via. Philadelphia, Baltimore & Washington Railroad Company during the latter part of 1912 and early part of 1913.

Bill for Specific Performance. The bill is to enforce specific performance of a contract for the sale by the complainants to the defendant, Crosson, of the premises No. 816 Van Burén Street, in Wilmington, which Mary E. Adams, the grandmother of the complainants owned at the time of her death.

Bill for Specific Performance. In this case there was a valid agreement in writing for the sale by the complainant, Nathan Barsky, to the defendant, Albert W. Posey, of a lot of land and dwelling house No. 402 East Fourth Street, in the City of Wilmington, and a refusal by the defendant to accept the title based on certain alleged defects in the title of the complainant, and that there was of record a certain unsatisfied mortgage on the premises.

Bill for Instructions to Trustee. Sallie A. Pennypacker died November 29, 1914, and by her wifi, probated January 13, 1915, after making sundry gifts directed that the residue of her estate be divided into three parts, gave one part to each of two sons, and gave the remaining third part to The Equitable Guarantee and Trust Company in trust, as follows: “* * * That it shall put and place the money and other personalty that may be included in said third part, out at interest,…

Bill for Construction of Will and instructions to executors.

Injunction bill. By the bill of complaint William R. Messick alleges that he is the owner of a lot of land in Georgetown, conveyed to him December 16, 1915, by one EcLwin C. Baker, who acqtdred title by deed of John W. Messick dated May 25, 1915, and that Hettie A. S. Kollock by deed dated January 17, 1905, conveyed the land to John W. Messick. All the deeds are of record.

Bill for Construction of Will and order of sale of real estate. Anna M. Ferris by will directed her executors to pay her debts, made several specific bequests, and “all the rest and residue” of her estate she gave, devised and bequeathed to her two sisters, Deborah Ferris and Martha Ferris, and the survivor, for life.

Bill in Equity. By the amended bill it is alleged that in September, 1913, the complainant reached an oral agreement with the officers and directors of the defendant corporation at a meeting held for the purpose of making the contract, whereby the complainant should secure the right to extract gasoline from the gas controlled by the corporation.

Motion to Dissolve Restraining Order made respecting securities owned by the defendant company. The facts are sufficiently stated in the opinion.

Statement of the Case. The purpose of the bill is to permanently enjoin the sale and transfer on the books of the company of three shares of stock of the Kehoe Stenograph Company, the ownership of which shares is claimed by the complainant as the assignee thereof from Abraham M. Ackerman. The stock was advertised for sale by certain persons claiming to be officers of the company for non-payment to the company of the par value thereof.

Bill in Equity. The complainant seeks the appointment of a receiver on grounds of insolvency, and among other things alleges mismanagement by certain officers of the affairs of the company. A demurrer on behalf of the defendant was filed, in which it was claimed that the bill was multifarious, and the cause was heard on bill and demurrer. The facts are sufficiently stated in the opinion of the Chancellor.

Injunction Bill. Edward F. Conner, the owner of a lot of land situate on the westerly side of duPont Street, between Fourth-and Fifth Streets, in the City of Wilmington, applied to the Building Inspector of the City of Wilmington for a permit to erect on said lot a building for use ajs a public garage.

Bill for the Appointment of Receiver. The bill is filed by a stockholder for the appointment of a receiver to wind up the affairs of the company, based on its insolvency, and for the appointment of a receiver pendente lite. This interlocutory application has been heard on the bill, the answer and numerous and volmninous affidavits and exhibits.

Injunction Bill. • The cause was heard on bill, answers of all the defendants (except the Real Estate Title Insurance and Trust Company), affidavits and exhibits at the return of a rule requiring the defendants John W. Cross and Albert Cross to show cause why they should not be enjoined and restrained from alienating or in any way disposing of the shares of the capital stock of the International Import and Export • Company held by them, and from Voting any of said shares at…

Statement of the Case. The Securities Company of North America'having been dissolved by action of the directors and stockholders, and a receiver appointed therefor to wind up its affairs, and the liabilities of the company having been adjudicated and its assets converted into money, the receiver has by its petition represented that it will be necessary to call on the shareholders to pay the whole of the amount' of money unpaid on the capital stock up to par value' thereof,…

Injunction Bill. The complainant, being one of several defendants in a judgment obtained m the Superior Court by the assignor of Harriet I. Newlin, administratrix d. b. n. c. t. á. of James B. Newlin, deceased, filed the bill of complaint for the purpose of restraining the sheriff from selling real estate of the complainant under a writ of execution issued upon the judgment.

Bill for Foreclosure of a Mortgage. This cause was heard on bill, answer, depositions of witnesses and stipulation of the solicitors for the respective parties; the facts being stated in the opinion. .

Exceptions to Answer. In this case the bill contained a' prayer that the company and the president and secretary and treasurer of the company, naming them, be required to answer all of the interrogatories appended to the bill. The persons named as president and secretary and treasurer were not made parties defendant. An answer was filed by the company, and in it some of the interrogatories were answered and reasons assigned why the others were not answered.

Bill by Shareholders of an insurance company to. annul contracts made by the company and to correct irregularities and unlawful acts of officers and directors. The cause was heard on the bill, the joint answer of the two defendants and testimony and exhibits. The facts appear in the opinion of the Chancellor.

Information in the nature of an injunction bill to restrain the shooting at targets on the grounds,occupied by the DuPont. Trapshooting Club. The cause was heard on the information, answer, testimony “of witnesses produced before and heard orally by the Chancellor and exhibits. . The facts sufficiently appear in the opinion of the Chancellor.

Bill for Specific Performance. ' The bill was filed to enforce the defendant to transfer to the complainant an undivided one-half interest in a certain horse in the possession of the defendant, which by training, it is alleged, could be developed into a valuable race horse. The cause was heard on bill and affidavits at the return of a rule requiring the defendant to show cause- why a preliminary injunction should not issue restraining him from disposing of the horse.

Statement of the Case. The matter under consideration is the petition of receivers of an insolvent Delaware corporation for authority to collect from stockholders of the company the money not paid on… Held: at which five of the nine persons who had been elected directors were present: Coleman du Pont, Frank M. Andrews, George Howard, Murray Cobb and.Frederick E. Chapin, and officers were elected.

Bill in the Nature of a Bill op Iinterpleader and for instructions to a testamentary trustee. The case was heard on bill and answer, and the facts appear in the opinion of ■the Chancellor.

Bill for Specific Performance of an agreement between the complainant and defendant to purchase a particular horse. The cause was heard on bill, answer, testimony of witnesses heard orally by the Chancellor and exhibits. The facts are stated in the opinion. See also, ante p. 283.

Injunction Bill. The complainant, being the tenant of premises in the City of Wilmington, known as No. 832 Market Street, filed a bill to restrain proceedings instituted before.a -justice of the peace by Bernard Kleitz and. George Kleitz, owners of the premises, to secure possession thereof. The case before the justice was heard by referees and judgment rendered in favor of the owners of the property.

Statement op the Case. In substance the bill shows that E. H. Watson had made a contract with the defendant company, by which he was given an exclusive agency to sell shares of stock of the defendant company, collect from the purchasers payments for the stock, pay all the expenses of making the sales, such as agents’ commissions, office expenses, etc., and retain from the proceeds as his compensation a fixed percentage thereof of any sales made by him, or otherwise made.

<p>Injunction Bill. The complainants, being the owners of shares of the preferred stock of the Automobile Finance Company, and claiming, to be entitled to other shares of the preferred stock and portions of the common stock of said company, seek to restrain the Central Security Company from voting or in any manner disposing of the entire authorized issue of common stock of the Automobile Finance Company, which is alleged to have been illegally issued to the Central Security Company, and seek also a cancellation of the shares of common stock issued to Central Security Company and an accounting therefor.</p> <p>Demurrers were filed on behalf of both defendants, and the cause was heard on bill and demurrers, the facts being set forth in the opinion.</p>

Injunction Bill. By the bill the complainant seeks to enjoin a sale by the sheriff under a writ of venditioni exponas issued on a judgment obtained by Ella S. Johnson, one of the defendants, in the Superior Court, in and for Sussex County. The facts appear in the opinion previously filed in this cause, reported ante. p. 164, 98 Atl. 218.

Bill to enjoin an Action of Ejectment. Heard on bill, answer, depositions of witnesses and exhibits. The facts appear in the opinion of the Chancellor.- ,

Petition for a Summary order for a meeting of stockholders for the purpose of electing directors. The facts appear in the opinion of the Chancellor.

<p>Bill for Specific Performance. The Chancellor stated the facts as follows:</p> <p>The bill is that of a vendee to enforce specific performance of a contract for the sale of an unimproved lot of land in Wilmington, owned by Thomas S. Bellah in his lifetime and by him devised, as part of the residue of his" estate to the Equitable Guarantee & Trust Company in trust for his widow for life, with remainder to other persons, a„ general power of sale being given to the trustee. After negotiations between the. complainant, Mr. Coppage, and Mr. Pennypacker, trust officer of the company, the former paid two hundred dollars, part of the purchase price agreed upon, and obtained the following receipt therefor:</p> <p>“The Equitable Guarantee and Trust Company.</p> <p>Wilmington, Del., Nov. 3,-1915.</p> <p>“Received from Mr. B. D. Coppage two hundred dollars on account of purchase price ($5,000) of lot of Bellah estate on Delaware Ave. above Riverview Ave., settlement to date from Dec. 15/15, taxes to be prorated from that date.</p> <p>“ The Equitable Guarantee & Trust Co.,</p> <p>“$-— by J. T. Pennypacker, Tr. Off.”</p> <p>On December 14, 1915, within the time fixed by the above memorandum, the purchaser tendered payment of the balance and other compliance with the terms,' but the trustee refused to perform the agreement. In the bill the lot was described by metes and bounds, with a front of seventy-one feet on Delaware avenue.</p> <p>The widow of the testator was made a party defendant. By his will her husband made specific provision for her, expressly declared to be in lieu and bar of her dower or dower rights, and it was alleged in the bill that she had waived her dower rights “by implication only, but had made no express, waiver thereof.” ■</p> <p>In addition to a prayer for a decree requiring the trustee to specifically perform the contract and convey the land, a decree was sought to compel the widow either to file in the Orphans’ Court an express waiver, or else to join in the conveyance by the trustee. A demurrer to the bill by the widow has been overruled, and both she and the trustee have answered the bill.</p> <p>The defense of both is, in substance, that the agreement was for the trustee to sell and the complainant to buy the lot in question by the frontage on Delaware avenue at seventy-five dollars per foot front, and not in gross, and believing that the lot contained sixty-seven feet front the price asked by the seller for the whole was $5,025.00, with an abatement, or deduction, of twenty-five dollars, making the price of five thousand dollars stated in the memorandum; whereas in fact the lot had a frontage of sev.enty-one feet instead of sixty-seven feet. By the answer of both defendants the statute of frauds was invoked as a defense. In her answer, the widow admitted the allegation as to a constructive waiver of her dower rights.</p> <p>Testimony of witnesses was heard orally before the Chancellor. The other pertinent facts are stated in the opinion of the Chancellor.</p>

Bill by an Execution Creditor to enforce for its own benefit, in the name of its debtor, an equitable interest or claim of the debtor against two judgment co-creditors for contribution . of payments made in excess of his share of certain judgments and to set aside as invalid an assignment made by such debtor of such interest or claim to a trustee for -the benefit of certain creditors to the exclusion of other creditors. The case was héard on bill, answers and depositions.

<p>Appeal From Court of Chancery. The facts appear in the opinion of the Court. For report of the case below, see 10 Del. Ch. 241. '</p>

■ Appeal From Court of Chancery. The facts and contentions of the parties may be summarized as follows: The appellants had been acquainted with William B. Purdy, one of the appellees, for several years, and during that period the said Purdy, together with certain of his friends from Philadelphia, constituting, the “Felton Fishing Club,” frequently went to Felton and from there to the mill pond on the farm owned by John W. Killen, one of the appellants, for the purpose of…

Statement of the Case. The Chancellor found for Elizabeth A. O’Donnell as to the policy issued by the Metropolitan Life Insurance Company, and for George H. McGovern, administrator of Mary C. McGovern, deceased, as to the policy, issued by the Economic Insurance Company of America. The respondents below appealed and the complainant below filed a cross-appeal. The terms of the decree entered by the Chancellor are shown by the several assignments of error.

The appellant sought an injunction in the court below to enjoin the sale and transfer of three shares of stock of the Kehoe Stenograph Company, ownership of which was claimed by the appellant. An answer was filed to the bill and supplemental bill in the court below, executed by Julius Strauss, as president, and Abraham M. Ackerman, as secretary, admitting the allegations of the bill and supplemental bill.

This was a bill by shareholders of the Home 'Life Insurance Company to annul contracts entered into by and between said company and the Home Protective Company. The statement of the case by the Chancellor, ante p. 258, 101 Atl. 898, is ample, and a restatement here is unnecessary.

Upon a bill filed in the court below by John W. Cooney Company, a judgment creditor, on behalf of itself and all other creditors, against Arlington Hotel Company, receivers were appointed, who thereafter presented to the Chancellor a petition praying that an assessment be levied against subscribers to the capital stock of the Arlington Hotel Company who had failed to pay in full the amounts of their respective subscriptions.

Injunction suit by William R. Messick against Ella S. Johnson and Jacob West, Sheriff. Rrom a*decree for complainant in accordance with the opinions of the court below (ante pp. 164, 362, 98 Atl. 218; 101 Atl. 865), defendants appeal. Reversed, and injunction dissolved. The facts appear in the opinion.

Petition of Executors to Sell Land of Decedent to Pay His Debts. The executors of James F. Sutton filed a petition for the sale of lands of the testator for the payment of his debts, the personal estate being insufficient for the purpose. The testator at the date of the will and at his death owned seven parcels of real estate, each of which was encumbered by a mortgage made by him.

Statement of the Case. Land of a decedent, George E. Wheeler, was sold by order of the Orphans’ Court for the payment of his debts; his personal estate being insufficient for the purpose. At the sale the purchaser paid part of the purchase money and having failed- to pay the balance before the date for the return of the sale, the administrator asked that the deposit be forfeited.

<p>Petition for Partition. The facts appear in the opinion.</p>