Appeal from the Circuit Court of the United States for the Northern Division of the Western District of Washington.

> In Equity. Suit by Ernest V. Cowell against John S. McMillin and the Tacoma & Roche Harbor Lime Company. Decree for defendants, and complainant appeals.

Ernest V. Cowell, a citizen of California, sued John S. McMillin and the Tacoma & Boche Harbor Lime Company, a coloration doing a large business making and selling lime at Boche Harbor, on the island of San Juan, Wash. The corporation has a capital stock of 1,000 shares of the par value of $100 each.

The bill alleges, in substance, that Henry Cowell owned 275 shares of the capital stock when he died on August 4, 1903, and that Ernest V. Cowell, his son, the complainant herein, owns 34 shares; that Helen E. Cowell is executrix of the will oí said Henry Cowell deceased; that after the corporation was organized the defendant McMillin owned 180 shares of stock, and that the remaining shares of stock were issued to some seven persons whose names ar.e given in the bill; that McMillin was president and manager of the com-X>any after its organization, and lived at Boche Harbor; that McMillin’s salary was fixed by the first board of trustees at $2,500 per annum, but on January 29, 1889, it was raised to $3,000, and that on January 26, 1891, the board of directors, through the procurement of McMillin, increased his salary to $500 per month; that during the years 1888, 1889; 1890, 1891, and 1892, the company did a very large business and increased its assets, and out of the earnings for said five years paid cash dividends to the amount of 35 per cent, of its capital stock. It is alleged that in the course of its business, the company had erected a mill to manufacture barrels for use in marketing its lime, and built warehouses adjacent to the mill, and that it cost the corporation about 31 cents for each barrel; that during the year 1S92 the Waterman-Chapman Barrel Machine Company, of Michigan, sent a representative to the corporation’s place of business, and made a proposition to tbe corporation to install a patent machine for the manufacture of barrel staves in place of the machine then used by the corporation, said barrel machine company to receive compensation for the use of their machine by way of a royalty of lVa cents upon each barrel manufactured; that McMillin agreed that one of the patent machines could be installed for trial, and in 1S92 such patent machine was put in place and used; that McMillin, while manager, ascertained that barrels could be made by the use of the machine at a total cost, including the payment of the royalty, of 21 cents per barrel, and that in January, 1893, after having experimented with the patent machine, he made a proposition to the trustees of the company to lease the stave mill and buildings and machinery connected therewith in the manufacture of barrels from the corporation at $200 per month rental, and to sell barrels to the company at the rate of 30 cents per barrel, and that he fraudulently concealed from the trustées the fact that by using the patent machine barrels could be made at a cost of 21 cents each, and that he falsely represented the facts to the board of trustees in regard to the use of the mill machinery and the cost and expense of making the barrels, and fraudulently represented to the board of trustees the character and value of the patent machine, and that in violation of his duties and trust, lie entered into a contract, with the barrel machine company in bis own name for the use of the machine and the sale of the patent invention within the state of Washington; that McMillin was the only trustee who knew anything about the manufacture and sale of lime or barrels; that the trustees other Ilian MeMiltin had then entered into an agreement with McMillin by which McMillin was to purchase their shares of stock at, stated prices, and that thereupon McMillin fraudulently, through the representations referred to, induced the board of trustees to accept the proposition and to execute a lease in the name of the company to'him for the stave mill and machinery used in the operation of the mill for live years from March, 1893, and that McMillin caused the corporation to agree with him to buy barrels at the rate of 30 cents per barrel under an agreement which provided that it might be terminated by McMillin at his option at the end of one year. It is alleged that the value of the property included in the lease was more than $40,000, and that by the terms of the lease, the company was obliged to pay all taxes and insurance and repairs, the cost of which have amounted approximately to the total sum of the rent reserved to the defendant in and by the terms of (be lease. It is averred that by the terms of the agreement for the sale of ilie barrels by McMillin to tlio company, the company became bound to purchase all barrels required in its lime business upon substantially the following terms: First, the company was to boar all expense of inspecting, measuring, and delivering all material or supplies for the mill to be used in the manufacture therein in the booms or on the wharf, at the mill, and also for the delivery of all cooperage stock; second, to furnish McMillin the froe use of the shops and fools and necessary storage for barrels and materials and free wharfage on all supplies: third, to receive from McMillin all staves and heads when manufactured, and to credit him therefor at the rate of 14 cents per set Cor staves, and 4 cents per pair for heads, payment 1» be made on Hie first day of each and every month during the continuance of the lease, and any extension thereof, and to pay the further sum of 12 cents for each barrel when the barrel is complete ready for shipment.

Complainant next alleges that, after making said contract and lease, Mc-Millin. in fraud of the rights of the company, conducted the barrel business in his own name and on his own behalf, and sold barrels to the company, and collected therefor at the rate of 30 cents per barrel until September, 1803, when the mill was destroyed by fire; that thereupon McMillin caused the company to rebuild the mill at an expense of over $40,000, and caused another barrel manufacturing machine to be installed and that after June, 1894, when the new plant was complete, McMillin continued to operate the mill and to sell the barrels to Hie company at the rate of 30 cents par barrel, although he manufactured them at a cost of not to exceed 21 cents per barrel; that Hiis continued until January 1, 4905, and that McMillin made profits of more than 820.000 per annum by making Hie"barrels up to that lime, and that he fraudulently diverted said profits from the company to himself. It is alleged that in 4893 .UoAUlliu made an agreement with all the stockholders of the company except Cowell, deceased, and this complainant, to buy all the remaining shares of the capital stock of the company not then owned by him, and that he agreed to pay in installments the parí-base price of ilie said stock and that the stock was thereafter turned over to .McMillin, and that lie has since then owned and controlled all the shares of the capital stock of the company except the 309 shares owned by complainant and Henry Cowell, and his executrix, and that since the purchase of the stock, McMillin has caused the same io be voted for such persons as he selected, and has refused to elect Henry Cowell as a trustee, but has chosen “dummy” trustees who, since January, .1893, have obeyed his directions so that really lie lias had and has control of the corporation: that at a. meeting of the trustees in March, 1895, for the pur]lose of defrauding complainants and other minority stockholders, and for Hie purpose of enabling MeMiUin to pay Cor the stock which lie had bought from tlie oilier trustees out of the assets and earnings of the company, McMillin caused the trustees to pass a resolution fixing his salary at $12,000 per annum, to take effect from January, 1895, and that since said date lie has collected said salary although his services have not boon worth more than $3,000 per annum, inasmuch as he has held other positions which required his time, and although he has lived in the city of Seattle and not at the place of business of the defendant company. It is further alleged that in furtheranee of his fraudulent plans in January, 1895, McMillin organized a corporation under the name of the “Staveless Barrel Company,” with a capital stock of $250,000, consisting of 2,500 shares of the value of $100 each; that this last-named corporation was organized by McMillin and two others, McMillin subscribing for all of the shares except two; that McMillin prepared the articles of incorporation, and charged the company $200 for the service, which sum was used in payment for the two shares of stock subscribed by the two other stockholders, and that, for the purpose of making a pretended payment for the shares of stock in the corporation subscribed for by him, McMillin made his note to the company in the sum of $249,800, and that thereafter in order to escape liability as a stockholder and to make a pretended payment of the capital stock, McMillin made a pretended proposition to the corporation to sell to it his lease of the stave mill and other property of this defendant company, and of his contract for the sale of barrels to the defendant company, and of all pretended rights which he had fraudulently acquired from the barrel machine company for the use of the patent machine for the sum of $249,800, and that he agreed to accept in payment therefor the delivery to him of his promissory note, and that he thereupon caused the trustees of the Staveless Barrel Company to accept the proposition and to deliver the note to him and to issue to him the capital stock, and that thereupon lie assigned the lease and agreements to the Staveless Barrel Coinpany, and then procured the “dummy” trustees of this defendant corporation to ratify the' assignments and transfers and to substitute the Staveless Barrel Company for McMillin in the agreements; that prior to the expiration of the contract and lease in 1897 McMillin caused the “dummy” trustees of the defendant company to execute a renewal of the contract in the name of the Staveless Barrel Company for the further period of five years upon the same terms and conditions ; that at the expiration of the second period of five years, about January 26, 1903, McMillin again caused his “dummy” trustees of the defendant company to renew the contract and lease for five years more, and that since January, 1895, McMillin has carried on the barrel factory in the name of the “Staveless Barrel Company”; that since January, 1895, McMillin has directed the business of the manufacturing of barrels for the use of the defendant company, and has conducted the stave mill and managed and kept the books; that the. Staveless Barrel Company has paid no salary to M.cMillin; that between January 1, 1895, and January 1, 1905, the Staveless Barrel Company declared dividends out of the pretended earnings of its manufacturing business amounting in all to the sum of $125,000, and has made a profit therefrom in undeclared dividends of more than $25,000, no part of which has ever been credited to„ the defendant company.

It is alleged that through the fraudulent acts aforesaid McMillin has wronged the defendant company and complainant, and that it was made to appear that the defendant company suffered an actual loss from 1893 to 1898;. that in 1894 McMillin, through his “dummy” trustees, caused the defendant company to authorize the issuance and sale of its negotiable bonds in the sum of $l2o,000, which are still outstanding in the hands of McMillin, though actually satisfied and paid, and that a portion of said bonds were fraudulently issued to McMillin upon the pretense that he was a creditor of the defendant company; that the shares of stock so fraudulently purchased and acquired by McMillin in January, 1893, and the bonds so fraudulently acquired by him, were retained for the purpose of gaining control of the defendant company and of its assets, and to injure the complainant and Henry -Cowell and his estate, and that unless enjoined from so doing McMillin will cause the bonds-to be transferred and delivered to third persons. It is charged that McMillin has used the property of the defendant for personal and private use and gain, and has failed to account to the defendant company therefor; that notwithstanding the value of the property of the defendant coinpany and the value of its business, if it had been efficiently managed, no dividends have been paid since January, 1893, except $10,000 in January, 1893, and $0,000 in January, 1906. It is alleged that McMillin has denied to complainant or to the said Henry Cowell an opportunity to examine the books and accounts of the defendant company until some time in 1903, when, under threat of counsel, he assented to an examination, and that it was from the report of the accountants that this complainant for the first time gained information of the true condition of the assets and liabilities of the company as shown by its books and records; that, until just before the beginning of this action, complainant had no knowledge or information concerning the frauds set forth; that Mc-Millin has entered into arrangements to. sell the property, and will do so unless enjoined.

Complainant prays for a restraining order which will prevent McMillin from selling and transferring, or agreeing to sell and transfer, any of the business of the company or any of the capital stock acquired by him since January, 1893; that he be enjoined from selling or disposing of the shares of the stock of the defendant company acquired by him since January, 1898. or of any of the bonds of the defendant company now owned or held by him : that a receiver be appointed to take possession of all the property and assets of the defendant corporation, and carry on the business until the determination of the action, and that the receiver be authorized to bring actions as may be directed against the defendant McMillin or the Staveless Barrel Company, or such other actions as may be necessary, and 1hat the receiver be authorized to pay the debts of the company and to wind up its affairs; that an account be taken between McMillin and the defendant company; that all of the stock of the defendant company pretended to have been bought by Mc-Millin since January. 1893, be adjudged to have been acquired out of the moneys belonging to the defendant company, and that a decree be made distributing said stock ratably between the persons lawfully holding the remaining shares of the capital stock of the defendant company; that the pretemM lease of the stave mill plant and real estate connected therewith be declared nuil and void, and that the contract for the sale of the staves to the defendant company be declared null and void; that the business and affairs of the defendant company be wound up and that its debts be paid, and that the proceeds be distributed ratably between complainant and other bona fide stockholders of the corporation according to their interests; and for general relief.

The defendants filed a joint answer. They deny the allegations of the complainant as to subscriptions for shares of stock alleged to have been made by persons other than McMillin about the time of the incorporation of the defendant company, and allege that when it was organized McMillin subscribed for 686 shares and that the entire capital stock was paid for by the purchase and transfer of all the property and assets of the Tacoma Lime Company and certain real estate and personal property belonging to the said McMillin, and one Masterson, at Roche Harbor, Wash. The defendants allege that the defendant has done a large business, and has enlarged its plant from 2 primitive mills to 13 of the most approved character, and has increased the output of the property from 100 barrels per day to 1,400 or 1,500, and that its assets have increased from a value of $100,000 to 8600,000 approximately; that it has extended its markets, and has increased its business about $400.-000 or $500,000 per annum; that it is prosperous and practically out of debt; that it has retired all of its bonded indebtedness and has an exceedingly valuable trade. McMillin pleads that his salary was raised by the board of trustees without his procurement. lie admits the payment of dividends for the first five years of the operation of the business, and says that it would have paid more had it not been hindered and harassed by the hostility of Henry Cowell, the father of the complainant in this suit. It is denied that the barrels were manufactured at a cost of 31 cents as alleged, and set forth that the average cost of the barrels for the five years preceding March 5, 1893, was 32% cents per barrel. It Is admitted that in 1892 the Waterman-Chapman Barrel Machine Company, of Detroit, wanted to install one of their patent machines, and it is averred that the machine had not been tested on the timbers of the state of Washington, and that it was problematical whether it would be successful or not; but it is alleged that McMillin examined the machine and believed that it was mechanically correct, and presented the proposition of the barrel machine to the trustees of the defendant corporation. It Is set forth that he discussed the matter in detail with the trustees, pointed out' the advantages of the machine if it should prove successful and the benefit. of using the new machine, telling them that it would be unwise to permit the machine to fall into the hands of competitors of the defendant corporation, and that he went into detail concerning its superiority; that the trustees considered and discussed the matter in detail and declined to accept the proposition, but suggested that the defendant McMillin should take the machine on his own account, and put it in the mill of the company at Roche Harbor, and demonstrate its value at his own expense with the understanding that the defendant company, should it prove successful, would have the first opportunity to receive the output of the -mill; that thereafter, the defendant Mc-Millin made the contract with the barrel machine company, which contract is made a part of defendant’s answer; that in 1891 and 1892 one of the machines was installed and experimented with until September, 1892, when the stave mill, together with the barrel machine was destroyed by fire; that Mc-Millin incurred heavy expense in testing the machine which did not do the work claimed for it, until about August, 1892.

The allegations of the bill to the effect that McMillin learned that barrels could be made for 21 cents each on the first machine are denied, and it is averred that nothing could be determined with accuracy concerning the experiments made with the machine although defendants admit that about January 14, 1893, McMillin made a proposition to lease the stave mill and building and machinery from the defendant corporation at $200 per month, and made a proposition to sell barrels to the corporation at the rate of 30 cents per barrel. All allegations of concealment of knowledge concerning the machine and false misrepresentations and all violation of duties of trust are denied. It is averred that after the destruction of the mill hy fire, the corporation proceeded to rebuild its mill, and that while the mill was being rebuilt, Mc-Millin proposed to the defendant to replace the barrel machine that had been destroyed by fire, and that the proposition was accepted on January 14, 1893; that the matter was discussed by the trustees, and all of the facts that were known to McMillin about the machine were fully laid before the trustees, and that the proposition was considered in detail by the board, and that with full knowledge and information upon the subject, the board, on March 15, 1893, authorized the execution of a lease of the mill plant, machinery, etc., and a contract for the sale of barrels by McMillin to the corporation, which contracts are made part of the answer. It is alleged that the contract was fair and just and advantageous to the corporation in that it procured a better barrel at a cost of 30 cents as- against 32% cents that had been paid for the barrels used before then. It is alleged that the financial condition of the corporation was not thought to be good enough to justify the cost and expense of experimentation with the machine, and that in the development of the machine defendant McMillin spent several thousand dollars. The defendants admit that McMillin and one Cartwright were the only trustees who lived at Roche Harbor, but deny that the trustees had no knowledge or experience in the manufacture of barrels, and aver that for several years the trustees were familiar with the cost of manufacturing lime and barrels by the defendant; deny that the trustees or any of them made any agreement with McMillin by which Mc-Millin was to purchase their shares of stock at any price, or that any agreement of purchase by McMillin was made until long after the execution of the contract and lease of March 15, 1S93, except a purchase from Cartwright made in 1891. All allegations concerning misrepresentation or concealment on the part of McMillin in respect to the lease and contract are denied, it being set forth that the contract and lease were made by the trustee, defendant McMillin not voting, and were made at a time when McMillin did not own in excess of 300 shares of the capital stock of the company. It is averred that on September 10, 1892, the property included in the lease was not worth any more than $35,000; and admitted that, under the terms of the lease, the defendant corporation was to pay for renewals, taxes, and insurance, but denied that repairs were to be paid for by the corporation. Defendants admit that the company was to buy all the barrels required in its business from McMillin during, the continuance of the lease, and that the corporation was to bear all expense of inspection, measuring, and delivery of material and supplies in the mill to be used in the manufacture of barrels in the booms and on the wharves of the mill, and also for the delivery of all cooperage stock, but aver-rod that, under tlie old method of manufacturing, all expenses of inspecting, measuring, and delivery wore all borne by the corporation, and that the defendant corporation was compelled to maintain its mill, wharves, docks, booms, and machinery. McMillin admits the conduct of the Slaveless Barrel Company in his own name; admits collections from the defendant company at the rate of 30 cents per barrel, but denies all fraud as against the defendant corporation, and avers that the new barrel-making machine was put into operation about June 1, 1893. from which time barrels were delivered to the defendant company and collections made at the rate of 30 cents per barrel, in compliance with the contract of March 15, 1893, and says that the barrels cost him on an average of 23% cents per barrel, exclusive of royalties; avers that he furnished no barrels to the company after the first of the year 1895, when he assigned his contract with the defendant corporation to the Stave-less Barrel Company, and that ihereafter the Staveless Barrel Company furnished barrels to the defendant company at the price hereinbefore named. He says that the assignment to the Staveless Barrel Company was made with the consent and approval of the trustees of the defendant company, and that ihe lease and contract were extended'with the consent of the company; and it is denied that the Staveless Barrel Company is indebted to the defendant company as alleged in the, complaint.

Defendants deny that McMillin made an agreement with all of the stockholders, except Cowell and the complainant, in 1893, or ever, to buy the remaining shares of stock of the defendant corporation, and deny ihat by virtue of any agreement McMillin was to pay for such stock in installments at future dates, hut they say that McMillin agreed to buy the stock of certain stockholders without any understanding or agreement with any other stockholder, and set forth that whenever he bought stock, and did not pay for it, the stock was held in escrow or as collateral by the seller until payment was made: deny that McMillin has held and controlled all of the aliares of the defendant corporation except 309, owned and held by complainant and Henry Cowell, since 1893; admit that McMillin refused to help elect 11. V. Cowell or Henry Cowell as trustees; deny that ho ever at any time elected or caused to be oicored “dummy” trustees, hut say that McMillin has voted his stock for slockItoMersvlio were men of character and experience in business affairs. Defendants deny that since January 1, 1893, the trustees have obeyed the direction of the defendant McMillin or that he has directed or controlled the corporate acts of the trustees. hut aver that McMillin has been general manager and president, has had charge and general direction of the business subject to the hoard of trustees; aver that he has not attempted to urge any policy that he did not think to the best interests of the company, and that he opposed ihe election of the Cowells because they controlled the Henry Cowell Dime & Cement Company, which was a competitor in business of tlie defendant, company, and (hat since the date of the organization of the Tacoma <& Roche Harbor Dime Company, Cowell had carried on a vigorous attack upon the defendant corporation endeavoring to destroy defendant company’s markets, forcing the price of lime down to the cost of production, and in many instances below the cost of production, and in every way annoying the defendant corporation, so that by reason of such ads the defendant corporation was prevented from making profits that it should have made, and that it was impossible to pay dividends largely by reason of the hoslilo attitude of the Cowells, and that the defendant McMillin did not consider them proper Tiersons for trustees. It is alleged that McMillin’s salary was raised to $12,000 by resolution of the trustees and without any fraudulent motive, and that such a salary was fair and reasonable; that McMillin, as president and general manager, has always rendered faithful and honest services to the corporation, and that he now exercises full control over tlie operations of the plant of the defendant corporation, looks after defendant's business, and devotes such time as is necessary to supervising, controlling, and conducting the business of tlie corporation.

Tlie answer Ilion alleges that the Staveless Barrel Company was organized without any fraudulent purpose in view and for the convenient handling of the business of McMillin and tlie other stockholders of the Staveless Barrel Company; that in 1891, 1892, and 1893 the defendant McMillin, in order to experiment with the barrel machine, obtained funds from his wife, who inortgaged her separate and individual estate to raise money to enable experiments to be conducted; that after the Staveless Barrel Company was organized Mc-Millin held 932 shares of the preferred stock of the Staveless Barrel Company and 1,485 shares of the common stock transferred to his wife, and that 1 share was given to J. M. Keene, and 11 shares to William Schultz;' that the wife of said McMillin draws her dividends upon the stock as does Schultz; that after the assignment of the lease and barrel contract of March 15, 1893, to the Staveless Barrel 'Company that company performed all agreements made under the contract with the defendant company, and that in March, 1897, the lease and contract were renewed for five years with the Staveless Barrel Company, and that again there was a renewal on January 26, 1903, and that all of said contracts and leases were fair and honest. It is admitted that the Staveless Barrel Company has earned probably $130,000, and it is averred that the defendant corporation is in no wise interested in said dividends; that all the expenses in installing, buying, experimentation, building, operating, and maintaining the barrel machine and the manufacture of barrels have been borne by McMillin and the Staveless Barrel Company, and that the accounts between the barrel company and the lime company have been honestly carried on in accordance with the contract of March 15, 1893, and the extensions thereof. It is averred that the books of the defendant company have been honestly kept, and that no attempt has been made to divert any of the funds of the company. It is admitted that $125,000 of negotiable bonds were issued in 1894, but it is alleged that such issue of bonds was for the benefit of the company to fund its debts, and that all of said bonds so issued have been fully paid. It is denied that McMillin intends to place the bonds beyond the jurisdiction of the court. All improper use of the property of the defendant is denied, and it is averred that the defendant McMillin has always faithfully accounted for the proceeds of all sales of property and assets to the defendant company. It is averred that the assets of the company are of the value of $600,000, and that under the management of the defendant McMillin, the value of the assets has increased from $100,000 to $600,000, and that dividends have not been declared in- order that the property might be imi>roved, the business developed, and the trade extended. It is averred that the value of the stock has increased from $100 per share to $600, and that additional profits could have been made had it not been for the interference of the Cowell interests. It is set forth that McMillin never has denied access to the books and that the corporate books were at various times examined by Henry Cowell .and the complainant, but that defendant McMillin did not believe that the books of account should be examined by said Henry Cowell or the complainant because they were competitors in business and were seeking the information for an improper purpose, and that for years it would not have 'been safe to have permitted the Cowells to examine the books, but that in 1903 counsel for Cowell was given permission to examine the books, and that then an expert was sent to go over them, and that everything connected with the affairs of the company was laid before the expert, and that complete information could have been obtained concerning the defendant company and the Staveless Barrel Company. It is alleged that the Cowells knew of the existence of the barrel contract since 1893, and that they should be estox>ped from questioning any of the transactions as to the salary or the course of dealings between the defendant corporation and McMillin and the Staveless Barrel Company. It is averred that McMillin was negotiating with capitalists for the sale of his stock in the defendant company, and that the negotiations would have been consummated had this suit not been instituted, and that it has been brought for the purpose of annoying McMillin and to prevent the consummation of the sale of his stock; that McMillin never contemplated the sale of the property and assets of the defendant company, and it is denied that he is about to sell or transfer the assets of the company or that the corporation, is about to do so. It is averred that the corporation and McMillin are solvent, and able to meet all demands against them, and that all transactions between McMillin and the defendant company have been fully and -completely known and understood by the trustees, and that the trustees have always controlled the -business of the company.

Exhibit 1, attached to the answer, is the agreement dated March 16, 1891, between Bowering, trustee for the Waterman-Chapman Barrel Machine Company and John S. MeMillin, concerning the barrel-making machine patent. In the agreement (so J'ar as it is material to consider it in this case) the barrel machine company gives to McMillin tlie exclusive right to use and operate the barrel making machines within certain states. It is agreed that the barrel machine company shall deliver the machines to McMillin, McMillin agreeing to pay an amount equal to the actual cost of the machines not to exceed ¡¡>1,500 each, and to pay the freight, which sums are to be repaid to McMillin out of the royalties to become due under the agreement.

Exhibit 2. made a part of the answer, is a letter from McMillin to the board of trustees of the Tacoma & Boche Harbor Lime Company dated January 14, 1803. In this letter, McMillin states that he owns the patents for the barrel machine for the Pacific coast, and that the test had demonstrated 1hat si barrel could be made that would be better than the ordinary stave barrel which had been used by the company. lie refers to the fire of September 10, 1802, and says that he intends to have a new machine set up, and he proposes to lease the mill and furnish the compsVny with all barrels complete and free of all expense, as set forth in the letter and proposition so to lease the plant, including mill, wharves, docks, machinery, dry kilns, sheds, yards, structures, tools, and appliances belonging to the plant and the foreman’s residence, for the period of one year, with the privilege of five; defendant corporation to proceed to complete r.lie mill and equip it, placing the machine in it, McMillin to lake all bolts on hand and booms as per inventory, and to operate the mill at his own expense, at a rental of S200 per month, McMillin agreeing to supply the company with all barrels it might require in its lime business, the lime company to furnish (.he mill power, and to bear the expense of inspecting, measuring, and delivering all material or supplies to be used in manufacturing, in lite booms or on the wharf at mill, as McMillin might require, free of all charges, except for purchase price of such material; the company to deliver all cooperage stock; McMillin to have the use of cooper shops and tools, etc., and storage for barrels and barrel material, the company to pay McMillin 30 cents each for all barrels used; that when staves and heading were delivered in the warehouse at mill, the. company should receive the same as fast as manufactured, and should credit McMillin at the rate of 14 cents per set for staves, and 4 cents per pair for heading, McMillin to pay branding, heading, and repairing -of barrels before shipment, and when on dock ready for shipment, McMillin to receive a further credit of 12 cents. The company was to keep up good and sufficient booms, wharf, and mill plant, and to make payments monthly, free wharfage to be given McMillin for supplies going over its dock.

On March 15, 1893, the company entered into a lease and agreement with McMillin, the lease practically covering the real and personal property referred to in the letter of McMillin to the company. This lease was signed by the corporation by O. IJ. Masterson, vice president, and J. M. Keene, secretary, and John ¡3. McMillin, lessee. As an exhibit 1o the answer there is also attached an agreement of March 15, 1903, between the lime company and Mc-Millin. In this contract, the company agreed to buy from McMillin all barrels to be used in its lime business, and to bear the expense of inspecting, measuring, and delivering all material, substantially as had been specified in the letter proposition made by McMillin to the company. Barrels were to be furnished to the company for a total of 30 cents per barrel. This contraer, was signed by the defendant company by its vice president and secretary as parties of the first part and McMillin individually as party of the second part.

Epon these issues, substantially as stated, the testimony was heard before tile master. Thereafter, the cause was heard by the court, and later an order was made dismissing complainant's bill. Complainants appeal.