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The opinion filed below, and here reprinted from 11. Fed. 938, was in full as follows:

THOMAS, District Judge. The steamship Winifred, with port side in shore, lay on the upper side of pier No. 12 in the North river, between 2 and 3 o'clock on January 30, 1900. Alongside her was lighter No. 12, with her bow out, so that the vessels were starboard to starboard. In the lighter's hold were stored 100 barrels of cement, while on the deck were 5,356 rolls of bagging, weighing 265 tons. It was the duty of the respondent to transship the bagging from the lighter to the steamer, but when such duty had been undertaken and continued for about 20 minutes the lighter careened to port, dumping a portion of her deck load in that direction. Straightway recovering, she dumped a portion of the load on the starboard side of the steamship, and for the loss of bagging thus sustained this action has been brought. It does not appear that the piles of bagging yet untouched by the stevedores on the port side of the lighter either were disturbed, toppled, or fell until the lighter lurched as stated. The listing of the lighter destroyed the equilibrium of the piles, disintegrating and causing the bagging to go overboard. They did not fall down, but were thrown down. But for such listing, the piles would have remained intact. What caused the vessel to list to port,-gradually, as libelant claims; suddenly, as respondent claims? The unloading, so far as it had proceeded, was all from the starboard side of the lighter, from the fore and aft corners progressing towards the waist and athwartship. The libelant contends that the 438 rolls, weighing 21 tons, had been transshipped when the accident happened, which corresponds with the statement of the respondent's agent, written May 16, 1900; but the respondent places the number of transferred rolls at 148. Whatever the number, it was sufficient to destroy the equilibrium of the lighter, and throw down the piles. The respondent urges that the libelant's negligence caused the accident, and the same consisted (1) in stowing the bagging to too great height, (2) in putting no sufficient dunnage under it, (3) and in not placing a binder on top of the bagging. The last accusation is not supported by the evidence. The second is open to discussion, but it may be that the scantling at the corners were connected with boards of less thickness amidships. But the inquiry is immaterial. It is not proven that the foundations of the piles gave way, nor that any undue outward inclination was given to the mass. On the other hand, the evidence is that the piles were drawn in one foot for each layer, converging the load towards the center, and that there were three binder rows at the top. If now the preponderance of evidence were that the piles fell to port, or sagged to port, causing the vessel to list, the importance of knowing the effectiveness of the dunnage would be apparent. But the careening of the vessel dumped the load, and it can hardly be claimed that the dunnage should have been sufficient to fortify the piles against such disturbance. But was the deck load negligently high? It was a large and high, but not an unprecedented, load. The number of tiers could have been 12; it is unlikely that it was over 14

What specific reason is there for inferring that such a load, with 100 barrels of cement in the hold, was improper? Was there danger of its falling apart during navigation? It had been brought from Greenpoint to pier 25, withstanding apparently all the disturbing influences of the two rivers. The evidence does not show there was any danger of its falling unless the vessel unduly listed. Was it so large and high that a removal of the inshore part to the extent that it was removed would cause the lighter to list? Such appears to have been the fact. If the cargo is removed, in the first instance, from the starboard side, the lighter must list to port. This is and was apparent. The stevedores knew this, even if they were not specifically warned of it. If the load was great, so much greater the reason for using care in distributing the work of unloading. It is urged by the respondent that the unloading was conducted according to its custom theretofore resulting in safety. The evidence tends to show that they had been removing the load working down towards the deck on the whole starboard side. There is evidence that the removal should be made somewhat evenly from the whole load, and that such is the general way; and the court is justified by the evidence and by the very nature of the case in holding that such is the proper way. Such manner of loading the stevedores did not employ. Had it been adopted, there is no reason for inferring that the lighter would have dumped. In other words, holding that the load was unusual in weight and height, yet the rolls were united suitably, and, had the work of unloading been properly distributed, the lighter would not have listed and dumped the load. Hence the culpable negligence was not in the weight and height of the load, but in the way such a load was handled. If the load was high, the fact was apparent; hence the necessity for even distribution of the work was necessary. The danger from the height of the load lay in improper discharge; hence the height and weight were not dangerous unless the cargo were negligently handled.

The libelants should have a decree for damages and costs.
Maxwell Evarts, for appellant.
Nelson Zabriskie, for appellee.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

PER CURIAM. Affirmed, on opinion below.

(113 Fed. 1020.)

METCALF V, AMERICAN SCHOOL FURNITURE CO. et al.
(Circuit Court of Appeals, Second Circuit. February 4, 1902.)

No. 90.
CORPORATIONS-SUIT by STOCKHOLDER-MULTIFARIOUSNESS OF Bill.

A minority stockholder in a corporation may maintain a suit in equity in behalf of himself and all other stockholders similarly situated to set aside an alleged unlawful transfer of the property of the corporation in pursuance of a conspiracy between its officers and the transferee in restraint of trade and commerce, where it is alleged that the corporation, on demand, has refused to bring such suit; but a bill for such relief which also seeks the recovery of treble damages under the anti-trust act of July 2, 1890, is multifarious, since such damages are only recoverable in an action at law by the plaintiff as an individual, and not as a stockholder, while the equitable relief prayed for is in behalf of the corporation, and, if granted, would inure to the benefit of all the stockholders.

Appeal from the Circuit Court of the United States for the Western District of New York.

This was a motion for temporary injunction and demurrers to bill. From a decree denying the injunction and sustaining the demurrers, complainant appeals.

The opinion filed below, and here reprinted from 108 Fed. 909, was in full as follows:

HAZEL, District Judge. The orator, Caroline Metcalf, holder of 569 shares of stock in the Buffalo School-Furniture Company, is a citizen of Connecticut. She brings this bill in equity in behalf of herself and all other stockholders having like interests with her, not citizens of New York, against the Buffalo School-Furniture Company, incorporated in the state of West Virginia, but transacting its business and having its property in the state of New York; Oliver S. Garretson, Henry R. Hoffeld, Frederick C. Garreison, Edward C. Shafer, Robert L. Cox, and Albert D. Garretson, directors of that corporation, owning 80 per cent. of the capital stock, all of whom are residents of the state of New York; the American SchoolFurniture Company, a corporation of the state of New Jersey; and Walter G. Oakman and George R. Turnbull, residents of the state of New York, who claim to have an interest in the property described in the complaint, as trustees for the holders of bonds of the defendant American School-Furniture Company. She alleges that the directors of the defendant Buffalo School-Furniture Company, without her consent, and the defendant American School-Furniture Company, on the 2d day of March, 1899, entered into an unlawful combination and conspiracy whereby it was agreed that there should be no competition in the United States in the purchase and sale of school furniture and similar articles, and that the defendants contracted, combined, and conspired to restrict, restrain, monopolize, and control trade and commerce among the several states in school furniture; that this was done to increase and control the price in contracts for the delivery of school furniture and the like among the several states and with foreign nations, and within the several states. The bill, at great length, alleges conspiracy, and after stating that the nominal capital of the defendant American School-Furniture Company is $10,000,000, all of which, after the formation of that corporation, was issued for property, or for options for property, held by promoters of the company, not exceeding $3,000,000 in value; that the defendant American School-Furniture Company borrowed $1,000,000, which still constitutes a liability, and which loan the promoters were able to obtain on the property acquired; that a large secret profit was made out of the transaction; that the consideration for the transfer of the property of the Buffalo Schooll'urniture Company to the American School-Furniture Company was the sum of $137,461 in cash, $15,000 in notes, 1,300 shares of the common stock, and 1,300 shares of the preferred stock, of the American School-Furniture Company,—it is further alleged that no business whatever has been actually carried on by the defendant Buffalo School-Furniture Company since the transfer; that its board of directors, acting beyond their power, intend to wind up and dissolve the company and distribute all of its assets, including the stock of the American School-Furniture Company, among its stockholders, pro rata, although the American School-Furniture Company and the aforesaid directors know said stock to have no value. It is further alleged that the total capital stock of the Buffalo School-Furniture Company is $350,000, divided into 3,500 shares, of the par value of $100 each; that the complainant requested the Buffalo School-Furniture Company to bring an action in equity to undo the transactions herein complained of, and recover its real estate and other assets from the defendant American School-Furniture Company; that she has exhausted all the means within her reach to obtain within the corporation itself the redress of her grievances; that the property and earning capacity of the Buffalo School-Furniture Company will be destroyed; and that she brings this bill for the benefit of herself and all the stockholders of the Buffalo School-Furniture Company who may be similarly situated who are not residents of the state of New York. It is further alleged that this fraudulent combination and scheme were fully consummated by the defendant directors and the American School-Furniture Company, and that complainant has never consented thereto; that she, being without remedy by the strict rules of the common law, prays that the American School-Furniture Company and the defendants the directors of the Buffalo School-Furniture Company may be decreed to be personally liable to her in the premises for treble the damages which she has sustained, and that the transfer of the real estate and all of the property and assets of the Buffalo School-Furniture Company may be set aside; that it be restored, reconveyed, and again vested in the Buffalo School-Furniture Company, and that her damages may be ascertained and trebled; that a receiver be appointed; that the treble damages that may be adjudged and awarded to her may be charged as a lien upon said real estate formerly of the Buffalo School-Furniture Company; that the lien may in this proceeding be foreclosed; and that she be paid the damages and treble damages awarded and adjudged to her out of the proceeds of such sale.

The defendants have all demurred to the bill on grounds of multifariousness and want of equity. This suit is properly brought by the plaintiff as a shareholder in the Buffalo corporation, suing, as she alleges, for herself and for and on behalf of all other stockholders not residents of the state of New York. The Buffalo School-Furniture Company is under control of the guilty parties, and they have refused to sue when requested by the complainant so to do. Ilawes v. City of Oakland, 104 U. S. 450, 26 L. Ed. 827; 2 Cook, Corp. § 701; De Neufville v. Railroad Co., 26 C. C. A. 306, 81 Fed. 10; Porter v. Sabin, 149 U. S. 478, 13 Sup. Ct. 1008, 37 L. Ed. 815; Weir v. Gas Co. (C. C.) 91 Fed. 940.

The primary question immediately arises whether this individual demand for damages is not inconsistent and antagonistic to the equitable relief sought in the bill, and whether these are not demands for equitable and legal relief upon distinct and independent grounds. Innumerable acts are alleged to have been committed in pursuance of the conspiracy. It is also claimed that the conspiracy formed and carried cut by the directors was and is in violation of the act of congress of July 2, 1890. Her grievance for which she demands relief is that of a minority stockholder suing for herself and several other stockholders. The damages alluded to in the bill, which she demands for her sole and individual benefit, appear to be the treble damages awarded to a person who is injured in his business or property by the acts of any other person or corporation forbidden or declared to be unlawful by the federal anti-trust law. It is strenuously insisted that the subject-matter of this case, because of the diverse citizenship of the parties, is properly before the court, irrespective of the act of 1890, and that, as the bill states a cause of action in favor of the dissenting stockholder without reference to that statute, a court of equity, having thus obtained jurisdiction of the subject matter, may administer all the relief which justice demands; that the damages sought are incidental to the demand for equitable relief, and the court has power to completely adjust all the rights of the parties. Madison Ave. Baptist Church v. Oliver St. Baptist Church, 73 N. Y. 96. It is a general rule that a court of equity, having acquired jurisdiction of the subject-matter, may mold its decrees according to the circumstances of each case. The damages, however, sought to be recovered in this suit, in the light of the demand set out in the complaint, at paragraphs 24, 26, 28, and 31, cannot be regarded as supplemental to the revesting of the property or incidental to the relief sought by the bill. The relief sought, other than the individual demand for treble damages, is in equity. Section 7 of the federal act of 1890 is declaratory of a common-law right which existed in favor of parties injured by wrongs enumerated in other sections of that act, and confers jurisdiction to seek a remedy, and with treble damages, in a federal tribunal. The character of the right of action is in no way changed, and still remains one in tort. Blindell v. Hagen (C. C.) 54 Fed. 40; Pidcock v. Harrington (C. C.) 64 Fed. 821 ; Gulf, C. & S. F. R. Co. v. Miami S. S. Co., 30 C. C. A. 142, 86 Fed. 407; Block v. Distributing Co. (C. C.) 95 Fed. 978. It inures in the case at bar to the complainant individually, and not to her as a stockholder, as an additional asset of the corporation. All other relief sought, if granted, must in the end belong and come into the hands of the corporation, to the advantage of the stockholders thereof. Cook, Corp. § 701, and cases cited; Church v. Railroad Co. (C. C.) 78 Fed. 526; Whitney v. Fairbanks (C. C.) 54 Fed. 985. This case is clearly distinguishable from De Neufville v. Railroad Co., 26 C. C. A. 306, 81 Fed, 10, cited by counsel for complainant. In that case the relief was demanded in form in favor of the complainant individually, but in law belonged

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