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

Suit in equity by Andrew Johnson against the Snow Storm Mining Company; W. A. Nicholls, intervener. Decree for complainant, and defendant and intervener appeal.

The appellee filed,in the court below a bill against the Snow Storm Mining Company, a corporation of the state of Idaho, in which he alleged, among other things, that he was the owner of 1,300 shares of the capital stock of the corporation, the certificate for which was theretofore, to wit. on the 28th day of November, 1904, destroyed by fire, at the city of Colfax, state of Washington; that he had complied with all the requirements of the corporation — which requirements the bill set forth — prescribed for tbe roissuance of lost or destroyed certificates, and, notwithstanding his demand upon the corporation for the reissue of a new certificate in place of the certificate so lost, the corporation refused to issue to him a new certificate, lmt, had paid various dividends on Ms said stock to some person or persons other than the complainant. and had failed and refused to pay such dividends to him. He prayed that the corporation be required to account to him for such dividends and to issue to him a new certificate.

The mining company answered the bill, admitting the ownership of the complainant on the 28th day of November, 1904, of 1,500 shares of its stock, evidenced by its certificate No. 1,062, and that on that day such stock stood upon its books in the name of the complainant. It also admitted that prior to the commencement of the suit the complainant secured and filed with the secretary of the company an affidavit of the publication of the notice required by the by-laws of the company, accompanied by a copy of the notice so published, and the affidavit of the complainant, and it admitted its refusal to issue to the complainant a new certificate of stock. In other respects it interposed a denial of the averments of the bill.

The appellant Nieholls was, upon his petition, allowed to intervene in the cause, and thereafter filed an answer to the bill, and also a cross-bill in which he alleged that on or about the 19th day of December, 1905, the complainant entered into a contract with him, whereby the complainant agreed with the cross-complainant “to sell, and did sell,” to the cross-complainant the 1,500 shares of the capital stock of the appellant company referred to in the bill, at the agreed price of 26% cents a share, and further agreed with the cross-complainant that, in view of the lost and destroyed certificate for such shares, he (the complainant) “would do all things necessary to procure from the said ■Snow Storm Mining Company a new certificate of said stock, and would deliver the same to your orator, and especially that he would procure from the said Snow Storm Mining Company a statement that it would so issue the said certificate for the said 1,500 shares of stock, and that it was further agreed by and between the said i>arties to said agreement that the purchase price of the said 1,500 shares of stock, amounting in all to the sum of 8697.50, should be paid by your orator to the said Andrew Johnson upon the procurement by the said Andrew Johnson of the said statement from the said Snow Storm Mining Company, or upon the delivery of said new certificate”; that thereafter the complainant failed and refused to procure such statement from the mining company and “refused to do those things necessary to procure said statement from the said Snow Storm Mining Company, or to procure the said certificate, to wit, he refused to execute the indemnity bond prescribed by the by-laws of the said corporation for the issuance of a new certificate in lieu of lost or destroyed certificates; and that your orator thereafter himself gave to the Snow Storm Mining Company the indemnity required by said company as security, and thereupon, and on the 26th day of February, 1906, the said Snow Storm Mining Company issued to your orator a new certificate, being No. 1,705, for the said 1,500 shares referred to in the bill of complaint herein, and thereupon, and forthwith, your orator waived the default of the said Andrew Johnson above set forth, and tendered to him the agreed price for said stock, to wit, the sum of $397.50, which the said Andrew Johnson refused to accept. And your orator thereafter, and upon the 1st day of March, 1906, again tendered the said amount to the said Andrew Johnson, who again refused to receive or accept the same.”

The cross-bill then alleges that the cross-complainant is, and at all times has been, able and willing to comply with all the terms and conditions of the contract as alleged by him, and that the complainant refuses to accept the money tendered, or to perform any of the conditions of the contract; that the stock has no regular market price, but fluctuates daily, and cannot easily be estimated. The prayer of the cross-bill asks that the cross-complainant be adjudged the owner of the stock, and, in the event that relief be not awarded, that the complainant, Johnson, “be compelled to specifically convey said property to your orator upon the payment by your orator of the contract price therefor, at such time and in the manner that may be prescribed by the order of this court,” and for general relief.

The complainant answered the cross-bill, putting in issue its averments.

The record shows that the facts of the case were practically stipulated to by the counsel of the respective parties, subject to objections to the competency of certain of the facts, and to certain of the oral testimony.

It showed the ownership by the appellee on the 28th day of November, 1904, of the 1,500 shares of stock of the appellant mining company, evidenced by its certificate of stock, and that the certificate was destroyed by fire as alleged in the bill. The by-laws of the company prescribed that any person claiming to' have lost a certificate might have a now certificate issued in its place upon producing evidence of having given notice of his loss for 60 days in a designated newspaper, and filing with the secretary of the company .an affidavit setting forth the facts and circumstances of the loss, and executing a bond of indemnity in an amount to be fixed by the company.

The appellee testified that on the 19th day of December. 1905, at Colfax, Wash., he called the appellant Nicholls, who resided at Spokane, to the telephone, and told him that he (the appellee) had 1,500 shares of stock of the appellant company which he wanted to sell, hut that, as the certificate for the shares had been burned, he was unable to deliver sucli certificate at once, and asked Nicholls if there was any way in which they could arrange for the sale so that the appellee could make the sale at once and deliver the stock afterwards, and that Nicholls replied that he thought there was, and suggested that the appellee give him a bond in the sum of $500 to insure delivery of the certificate within 70 days, or in such time as a new certificate could be obtained under the by-laws of the company; that Nicholls said he could use the stock if such an arrangement could be made, at the price-of 2(P/S cents a share.

On the next day the appellee wrote to Nicholls as follows:

“Mr. Win. A. Nicholls, Spokane, Wash.---Dear Sir: As per our talk over phone yesterday, I send you a bond in the sum of five hundred dollar to secure delivery of 1,500 shares of Snow Storm stock in seventy days I prefer that the bond be given to you in person rather than some stranger if you can arrange it that way I can deliver in that time but suppose a contingency sucli as delay in mail or neglect of the officers of the company to do their duty and I should be delayed a few days I know that you would not take advantage of that and stick me for $500.00 however I leave it to your own good judgment.

“Respt. Andrew Johnson.”

The letter contained the bond referred to, executed by the appellee and two sureties, conditioned as follows:

“The condition of this obligation is such that whereas, said Andrew Johnson claims to be the owner of fifteen hundred shares of the capital stock of the Snow -Storm Mining Company of Mullan, Idaho, now, in consideration, of the payment of the sum of three hundred ninety-seven-& ti0/u>o dollars to the said Andrew Johnson by the said- — , we, the undersigned, hereby agree to furnish to the said-, within seventy days from date hereof, a certificate of stock for 1,500 shares of the capital stock of the said Snow Storm Mining Company; now, if the said Andrew Johnson shall well and truly furnish the said 1,500 shares of the capital stock of the said Snow Storm Mining Company to the said-— within the time herein specified, then this obligation is to be void and of no effect; otherwise to remain and be in full force and virtue.”

The appellee also testified in effect, that, needing the money, and fearing there might be some trouble in effecting the sale, he went the next day to Spokane to see Nicholls. “I went in when 1 got to Spokane and called on Mr. Nicholls,” said the witness, “and lie had the bond there and seemed to be satisfied with it, and we talked matters over a little bit, and I gave him to understand that I was expecting my money. Mr. Nicholls then stated to me that: he hadn’t so understood it from the conversation we had over the telephone the day before, and he said that he was unable to get his client to come through; that his client, on that proposition, wouldn’t pay him the money. Then L told Mr. Nicholls, ‘If that is the case, we can’t do any business. because the only purpose I have in selling this property is because I need the money at the present time, and that is all there is to it’ We went on and talked a little while along that line, and I asked him if he could suggest anything that I could do that would induce his client to take the matter up and give me my money, and he said he didn’t know of anything. And finally I suggested this to him, ‘Now. if your ciient has any doubts as to whether or not I am the owner of this property, I think I can satisfy Mm that I really am, and he is protected by (,liis bond as to the delivery, and I can show him that I am able and can do it when I have complied with these certain things, and I will get a statement from the secretary of the Snow Storm Company, over the seal and signature of the company, that the books show me to be the owner of this stock, and that they will issue the same to me in sixty days, and I will then be in a position to deliver the stock.’ And he says: ‘I will tell you what X will do. I will see my client and present the matter to him, and you come in later on.’ So I went out and had an appointment with him along in the afternoon — I couldn’t name the exact hour, but probably about 2 o’clock — and I came in again, and Mr. Nieholls told me he had seen his client, and his client was satisfied to do business on that basis; and so I says: ‘All right; that settles it.’ And so I left the bond with him there, and I went down home with the understanding that when I got home I was to write and get this statement from the Snow Storm Company; and I done so. I wrote to the company and asked them for this statement, and got it in due course of time, and forwarded it to Mr. Nieholls, and Mr. Nieholls, when he got the letter, instead of sending me my check, as I expected, came back with a counter proposition, which I refused to accede to.”

The letter of the appellee to the mining company thus referred to in his testimony was written December 29, 1906 (1905), was addressed to the secretary of the Snow Storm Mining Company, and is as follows:

“I send you under separate cover copy of the ‘Colfax Gazette’ in which is a notice that explains itself: A similar notice running in your Mullan paper. These notices will continue for sixty days.

“You will greatly favor me if you will send me a statement over the seal and signature of the Snow 'Storm Co. to the effect that I am the owner of 1,500 shares of Snow Storm stock and that a certificate of same will be issued to me soon as these notices have run the agreed length of time — sixty days.

“I have sold this stock and have given a bond to the purchaser to deliver same in sixty days. Now he wants a statement from you that I own this stock and that you will issue this certificate soon as I have complied with the law in the case. Please let me hear from you soon as possible.”

On the 2d of January, 1905 (1906), the secretary of the company replied to the appellee as follows:

“Mr. Andrew Johnson, Colfax, Wash. — Dear Sir: Replying to yours of Dec. 29th, will sdy that after examining our records we find that you are the holder of 1,500 shares of Snow Storm stock, and will, after notices have run 60 days, and upon receipt of your affidavit stating the facts and circumstances as near as possible, together with bond for 1 year of indemnity to the company of 25

Two days thereafter, to wit, January 4, 1906, the appellee wrote to the appellant Nieholls as follows:

“I inclose you letter from the secretary of the Snow Storm Co. that I think ought to satisfy your client the notices are now running in papers at Mullan and Colfax.”

The appellant Nieholls refused payment for the stock upon receipt of such statement from the secretary of the mining company, insisting that one of the conditions of the' contract was that the appellee should also furnish an indemnity bond to the mining company as a condition precedent to payment for the stock.

The record discloses this further correspondence in respect to the matter:'

On the 24th of February, 1906, the appellant Nieholls wrote two letters upon the subject-one to the appellee, and the other to the secretary of the mining company. That to the appellee is as follows:

“Mr. Andrew Johnson, Colfax, Wash. — Dear Sir; The seventy days which you have under the terms of the bond given me to make delivery of 1,509 shares of Snow Storm at 26% cents, will expire on the 27th of this month. The party to whom I sold the stock wishes to know if you will be able to make delivery on that date. Please advise me at once, as I am obliged to give him an'toswer.

“Respectfully, W. A. Nieholls.”,'

The letter of the same date to the secretary of the mining company is as follows:

“Mr. C. I>. Miller, Secty. Snow Storm Mining Co., Mullan, Idaho — Dear Sir: I have a letter written to Andrew Johnson by yourself on January 2d informing (him) that the 1,500 shares of stock which was lost would he reissued providing a bond for $375.00 was properly executed after due notice had been given for 60 days in the newspapers. I have purchased this stock and Sir. Johnson has given me bond for delivery of same. Are you ready to reissue the shares upon the execution of the bond? I believe this notice has been published for at least 60 days.

“Respectfully, W. A. Nicholls."

On the 26th of February, 1900, the president of the mining company wrote to the appellant Nicholls as follows:

“Replying to yours of the 2áth inst. If you 'will write us a personal letter guaranteeing these 1.500 shares of stock it will not be necessary to furnish bond. We are inclosing you herewith certificate 1,705 for 1,500 shares. Trusting that this will be much easier for you, we remain,

“Yours truly, W. D. Greenough.”

To this letter the appellant Nicholls replied on the 1st day of March, 1906, as follows:

“Mr. W. I). Greenough, % Snow Storm Mining Co.. Mullan, Idaho — Dear Sir: I beg to thank you for your favor of the 2(>th ulto., inclosing certificate No. 1,705 for 1,500 shares Snow Storm Mining Co. stock.

“I appreciate this accommodation, dispensing with all red tape, and I will agree to protect the Snow Storm Mining Co. in case anyone should turn up later, claiming to own these shares.

“Hy way of explanation 1 wish to add that I purchased this block of 1,500 shares from Andrew Johnson on -December 19th. 1905. as J remember it. He executed an indemnifying bond in the sum of $500.00' to protect me against loss in case of failure to deliver the stock within 70 days from date. He wanted the money at that time and I agreed to pay him, providing he would' get ¿i note from the secretary of the company to the effect that the stock would be delivered to me within 70 days from date. Johnson then wrote to ¡Mr. Miller and 1 have the lattors’ reply advising that he would issue the stock after notice had run for (¡0 days, providing the bond of indemnity were given to the company of $375.00, to remain in force for one year. I then wrote to Mr. Johnson, requesting that he execute this bond when X would be perfectly willing to pay him for the shares, lie did not respond to my letter and I again wrote him on January 20th, making request that he arrange to deliver the stock promptly, but received no answer. Accordingly I made him a legal tender for the stock within the 70 days, at Colfax, supposing, of course, that he was prepared to make delivery, and was willing to do so, since he liad never indicated a desire to repudiate. I received a letter from him last night, informing that he did not intend to make delivery of the stock, but that lie would do anything which he considered reasonable to make me whole in the transaction.

“It is a plain case of a man’s trying to welch on trade because the stock had advanced in price in the meantime. 1 have consulted my attorneys; Messrs. Happy & Hindman, in all the steps taken, and am advised that Johnson has no possible claim to this stock; that my bond is perfectly regular and that had he failed to deliver the stock, 1 could have collected $500.00 damages at once.

“T will hold this certificate of Snow Storm just issued, until this matter is entirely cleaned up to your satisfaction. Wlien I wrote you advising that T had purchased the shares, it never occurred to me for a moment that Johnson would try to avoid the obligation.

“I will protect you in every respect, but there is no question as regards the validity of my claim, for I have proofs, and any statements- from Mr. Johnson to the contrary are false.

“Respectfully, W. A. Nicholls.” ,

February 27, 1906, the appellant Nicbolls tendered to the appellee, through the Colfax National Bank, $397.50, as payment for the stock in question, upon the tender of which the appellee wrote to the appellant Nieholls, as follows:

“Mr. W. A. Nieholls, Spokane, Wash. — Dear Sir: Mr. Coman of the Colfax Nat. Bank tendered me money to day for 1,500 shares of Snow Storm which I refused to axeept for this reason, your client has failed to meet any of the conditions provided in the bond which I gaye to you you will remember when I was in Spokane. X agreed to get a statement from the secretary of the Snow Storm to the effect that the books showed me to be the owner of 1,500 shares upon this statement and the bond I gave you — -you were to pay me 26%

“You will understand the escence of the contract I made with you was the payment to me of the purchase price you having failed to do this makes the bond void and of none effect. I hope I have made my position clear in this matter and I desire to assure you that I will do anything in reason, to adjust this difficulty so that no one shall be the looser, that is in my power.

“Respt. Yours, Andrew Johnson.”

To the letter last above set out the appellant Nieholls replied as follows:

“Mar. 1, 1906.

“Mr. Andrew Johnson, Colfax. Wash. — Dear Sir: Your favor of the 27th ulto. at hand. I cannot agree with you in many of your statements. When you were in Spokane, I informed you that providing you could secure an agreement from the secretary of the company to issue me the 1,500 shares of Snow Storm after notice had run in the papers for 00 days, advising the public of the loss of the stock, that I would pay you the stipulated price of 26% cents per share. You agreed to do this and later sent me a letter from the secretary in which he states that the stock would be issued in due time if you would file an indemnity bond at the rate of 25 cents per share, or $275.00. I wrote, requesting you to attend to this, but received no reply. Then on January 29th, I again wrote, requesting that you make arrangements to deliver promptly,'further stating that I had closed the trade and had never received any advise from you calling it off. When you left here in It was agreed that if the trade did not stand, you were to write me to that effect at once and ask for the return of the bond. I have consulted my attorneys Messrs. Happy & Hindman in every step taken by myself. They have examined the bond carefully and state that it is valid absolutely, and can be enforced.

“It would have been unreasonable to ask me to put up 26% cents per share, amounting to $397.50. and'further, to file a bond with the secretary at 25 cents per share, or $375.00 more, since your bond only protected me in the sum of $500.00, whereas I would be out $772.50, in case anyone else contested my right to the shares.

“I wrote to the secretary several days ago and .informed him that I had purchased the stock from you. and he promptly issued a certificate in my name and sent it to me. You acknowledged in your letter that the money was tendered to you by the Bank at Colfax, which you refused. I now inclose my check for $397.50, in full payment for the 1,500 shares which you sold me at 26% cents.

“Respectfully, . W. A. Nieholls.”

The check for $397.50 inclosed in the letter last above set out was returned by the appellee td the appellant Nieholls, in a letter of date March 2, 1906.