Paine and Others v. The Lake Erie and Louisville R. R. Company. ville to Union, in the State of Indiana; and whereas it was understood by the undersigned that L. Q. Rawson was, in furtherance of said project, and as President of the Fremont & Indiana Railroad Company to give to said Lake Eric & Pacific Railroad Company, one hundred and fifty thousand dollars of the second mortgage bonds of said Fremont & Indiana Railroad Company, which were then valued at eighty cents on the dollar, but which said second mortgage bonds have been cut off by a secret foreclosure of the first mortgage bonds of said company; and whereas the undersigned have aided said Oswald and expect to aid him in the prosecution of said contract to completion: Now, therefore, in consideration of such aid, and furnishing, by L. Q. Rawson, on his part, an equivalent of first mortgage bonds of the Fremont & Indiana Railroad Company under its new organization, for those before mentioned as having been cut off, it is hereby mutually cove nanted and agreed by and between the undersigned, that the net profits of the contract of said Oswald with said Lake Erie & Pacific Railroad Company shall be shared equal by the parties hereto as well as all losses, share and share alike. Dated at Suspension Bridge, N. Y., February 21, 1862. (Signed.) JOHN D. FAY. JAMES OSWALD. D. WEBB. GEO. P. EDDY. N. E. PAINE. No. 2. SUSPENSION BRIDGE, N. Y., To the President and Directors of the Lake Erie & Pacific Railroad Company: GENTLEMEN, Having been informed that you are desirous of consolidating your line of road with the Fremont, Li Paine and Others v. The Lake Erie and Louisville R. R. Company. ma & Union Railroad Company, in the State of Ohio, and in order to enable you to do so, that you request of me a proposition as to the terms upon which I will cancel my contract made with you on the 23d day of December, 1861, for constructing your said line of road, I beg leave to make the following proposals: 1st. I will cancel and abrogate my said contract, upon your giving me seventy of the first mortgage coupon bonds. of your said company, of one thousand dollars each, which bonds are to be exchanged for a like number, kind, and amount of bonds of the consolidated company, in time and manner hereinafter specified. 2d. You to pay the floating debt of said company, including five promissory notes of five hundred dollars each made by the directors of said company. The pressing portion of said debt to be paid at once, and the balance too as soon as practicable thereafter; I to pay all liabilities I have incurred since the first day of October last. 3d. I will settle and pay the trustees of said bonds, G. A. Robbins and Geo. T. M. Davis; will settle and pay the Hon. James Wadsworth for his services. 4th. You to give me an order upon said trustees for the balance of said bonds, 820 in number, and, also, for the bonds, seventy in number, which I am to have under this proposition; but all of said bonds shall be and remain in the hands of said trustees until the bonds of the consolidated company are issued and ready for delivery as hereinafter stated, when said trustees shall cancel and exchange seventy of said bonds for a like number, kind, and amount of said consolidated bonds, which consolidated bonds they are to hold for the benefit of, and to deliver to, Mr. James Oswald, when called for by him; also, that they will, at such time, cancel and deliver to said consolidated company the balance of said bonds, eight hundred and twenty in number, and discharge the mortgage upon which said bonds are issued. Paine and Others v. The Lake Erie and Louisville R. R. Company. 5th. The bonds of the consolidated company to be issued and exchanged for the present bonds within six months from the date hereof. 6th. You to issue to me the amount of stock subscribed by me, and now due me as a cash payment upon my said contract for work already done. (Signed.) No. 3. JAMES OSWALD. This agreement by and between James Oswald, of Canada West, and L. Q. Rawson, of Fremont, Ohio, witnesseth: that said Oswald has agreed to endorse to L. Q. Rawson, and place in the hands of S. Medberry, of Columbus, Ohio, three hundred and sixty-nine thousand nine hundred and fifty dollars of the capital stock of the Lake Erie & Pacific Railroad Company, which the said Medberry is to have transferred on the books of said company to the said L. Q. Rawson, and take new stock therefor in his name, which certificate shall be endorsed in blank by said Rawson, and said certificates are to be held by said Medberry in trust until the said Rawson, or the consolidated company of the Fremont, Lima & Union Railroad Company and the Lake Erie & Pacific Railroad Company shall have paid off, or secured to be paid, the floating debt of said Company. Second. And until seventy of the first mortgage bonds of the consolidated company of the Fremont, Lima & Union Railroad Company and the Lake Erie & Pacific Railroad Company are delivered by said Rawson, or some agent of the consolidated company, to the trustees named in the bonds of the Lake Erie & Pacific Railroad Company, subject to the order of said Oswald; the said debt to be paid, or secured to be paid within one year, and the said bonds delivered within six months from the date hereof; but if the said debts are not so paid, or secured to be paid as aforesaid, and said bonds so delivered, then, and in that case, the said stock is to be re-delivered to said Oswald by said Medberry, or to said Oswald's order. Paine and Others v. The Lake Erie and Louisville R. R. Company. Third. When said debt is paid, or secured to be paid as aforesaid, and bonds delivered as above stated, the said Medberry shall deliver the said stock to said Rawson, or his order, and the said trust hereby created shall be ended and of no further effect. In witness whereof, the parties have hereto set their hands and seals, this 14th day of November, 1864. (Signed.) No. 4. JAMES OSWALD, [L. S.] On motion of John D. Fay, seconded by D. Webb, the following resolution was unanimously adopted: Resolved, That the proposition of James Oswald, submitted to this board, and which is hereinafter set forth, by which he rescinds and cancels his contract for the construction of the Lake Erie & Pacific Railroad, be, and the same is hereby accepted, with all its terms and conditions; and said contract is hereby declared void and of no further effect: provided, the floating debt is paid off by L. Q. Rawson, of Ohio, and the bonds delivered as per agreement between said Oswald and L. Q. Rawson, on this 14th day of November, 1864. No. 5. On motion of John D. Fay, seconded by N. E. Paine, it was resolved that the following order be delivered to James Oswald, to wit: To Messrs. Davis & Robbins, Trustees, &c.: GENTLEMEN, As soon as the proposed consolidation of the Lake Erie & Pacific and Fremont, Lima & Union Railroad Companies is perfected, and the first mortgage coupon bonds of such consolidated roads, of one thousand dollars each, are issued, you are requested to deliver to the undersigned James Oswald seventy of such consolidated bonds (that number to be placed in your hands for that purpose), and thereupon you are to cancel all the bonds (890) of the Lake Erie & Pacific Railroad Company now in your hands, and Paine and Others v. The Lake Erie and Louisville R. R. Company. pass the same over to said consolidated company, and to discharge the mortgage therewith connected. Yours truly, On motion of John D. Fay, seconded by N. E. Paine, it was Resolved, That all other resolutions passed at Suspension Bridge, on said 14th day of November, and heretofore referred to, relating to the Oswald contract, so called, or otherwise, be and are fully confirmed and adopted. Carried. At the same time the defendant Dwight Webb filed his answer in three paragraphs. The answer of Webb is the same in words, figures, and exhibits, as the foregoing answer filed by the defendants Paine and Fay, except that he claims an interest of one-fifth only in said seventy bonds. On the 3d day of October, 1867, the plaintiff filed her demurrer to the second and third paragraphs of the answer and cross complaint of Paine and Fay. At the same time the plaintiff filed her demurrer to the second and third paragraphs of the answer and cross complaint of Dwight Webb. The court sustained said demurrers; to which rulings of the court the defendants excepted. On the 7th day of October, 1867, the defendants Paine and Fay and the defendant Webb respectively filed their motions and affidavits for a change of venue; and thereupon the venue of this cause was changed to the court of common pleas, in the county of Fayette, State of Indiana. |