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rates at which the component material of The change, in the later enactment of chief value may be chargeable. If two or section 2499, of the duty on “all articles more rates of duty should be applicable to manufactured from two or more mateany imported article, it shall be classified rials,” from a duty“at the highest rates at for duty under the highest of such rates : which any of its component parts may be provided, that non-cnumerated articles chargeable,” to a duty “at the highest similar in material and quality and text rates at which the component material ure, and the use to which they may be of chief value may be chargeable,” is very applied, to articles on the free-list, and in significant, especially considered in conthe manufacture of wbich no dutiable ma Dection with the new provision in thelater terials are used, shall be free.”
section 2499, that, “if two or more rates In comparing the former and later en of duty should be applicable to any imactments of section 2499, it is to be noted ported article, it shall be classified for duthat in the later one the words “ of duty, ty under the highest of such rates.” There in italics, are omitted ; that the words in was clearly a new classification provided the earlier one, “at which any of its com for as to “all articles manufactured from ponent parts may be chargeable,” in ital. two or more materials,” based upon the ics, are omitted, and the words in the highest rate chargeable on "the compolater one, “ at which the component ma nent material of chief value;" and the terial of chief value may be chargeable, further new provision was added, imposing in italics, are substituted therefor; and the highest rate of duty, wbere two or that the following language is added in more rates of duty were applicable to an the later enactment, which does not ap article. This last provision was not proppear in the earlier one: “If two or more erly a pplicable, under section 2499, to an rates of duty should be applicable to any
article “manufactured froin two or more imported article, it shall be classified for materials,” and it had sufficient scope if duty under the highest of such rates: pro- applied to articles not manufactured from vided, that non-enumerated articles sim two or more materials, but still prima ilar in material and quality and texture, facie subject to “two or more rates of and the use to which thoy may be applied, duty." to articles on the free-list, and in the man The decision by the circuit court in the ufacture of wbich no dutiable materials present case was made in January, 1888. are used, shall be free.”
Since that date there have been three deAt the close of the plaintiffs' testimony, cisions by this court bearing on the ques. the defendant, without putting in any tion involved. evidence, moved the court to direct a ver In Artbur v. Butterfield, 125 U. S. 70, 76, dict in his favor. The court did 80, the 8 Sup. Ct. Rep. 714, (decided in March, plaintiffs excepted, and a verdict was ren 1888,) it was held, under the later section dered for the defendant.
2199, that, “ to place articles aniong thuse The question is as to whether the proper designated as enumerated, it is not necesrate of duty on the goods was 30 per cent. sory that they should be specifically men. ad valorem, or only 15 per cent. ad *valo. tioned. It is sufficient that they are des.
Leather was a component part or ignated in any way to distinguish them material of the article, and was dutiable from other articles;” and that the words at 30 per cent. Paper was a component “manufactures of hair” were a sufficient part or material of the article, and was designation to place such manufactures dutiable at 15 per cent. On the view that among the enumerated articles. both of those two rates of daty were ap In Hartranft v. Meyer, 135 U. S. 237, 239, plicable to the article, and that there was 10 Sup. Ct. Rep. 751, (decided in April, 1890,) a provision in section 2499, as enacted by attention was called to the change made the act of March 3, 1883, that in such case by the act of 1883 in section 2499, in regard to the article should be classified for duty un "articles manufactured from two or more der the bighest of the two rates, that is, materials," assessing the duty on then“at in this case, 30 per cent., that rate of duty the highest rates at which the component was assessed.
material of chief ralue may be chargeable, The reasons assigned by thecircuitcourt instead of “at the highest rates at which for directing a verdict for the defendant any of its component parts may bechargeaare reported in 33 Fed. Rep. 457; and it ble,” as a change hy which, "instead of would appear from them that the court making the duty depend on the highest gave no effect to the later provision in rate at which any component part is section 2499, as enacted by the act of chargeable, it is made to depend on tbe March 3, 1883, that “on all articles manu highest rate at which the component ma. factured from two or more materials the terial of chief value is chargeable;” and in duty shall be assessed at the highest rates that case, the article being composed of at which the component material of silk, cotton, and wool, the silk being the chief valve may be chargeable.”
component material of chief value, this These albums were articles manufact. court held that the duty was chargeable ured from materials two of which were at the silk rate, which was higher than paper and leather: and, as tho evidence the rate chargeable on the other compudistinctly showed that the paper was the pent materials of the goods. component material of chief value, the du So, too, in Mason v. Robertson, 139 U. ty was assessable, under Schedule M of the S. 624, 11 Sup. Ct. Rep. 668, decided in act of 1883, at 15 per cent., under the April, 1891, section 2499, as enacted by the clause imposing that duty on "paper, act of March 3, 1883, was under consideramanufactures of, or of which paper is a tion, and Arthur v, Butterfield and Hart. component material, not specially enu. ranft v. Meyer were cited. The question merated or provided for in this act.
was whether* bichromate of soda was a
each being 600 feet ride by 1,500 ft. long, | terman and Porter were repaid out of the and the same interest in all lands that proceeds of the mining property before the may be located or has been located for the institution of this suit, the principal part development of the above mines, with before and the balance after the death of such machinery and improvements as is J. S. Waterman. to be placed upon same, all subject to the | No demand was made upon R. W. Wasame proportion of expenses, which is to terman or Porter at any time within 12 be paid out of the development of the months after May 14, 1881, for a convey. above property, all situated near the ance, nor until after the death of J. S. Wa. Grape Vine, in the county of San Bernar terman. This suit and the decree below dino, state of California.
proceeded upon the general ground that the “R. W. WATERMAN." writing of May 14, 1881, was intended to This was the obligation, the specific pass, and was accepted as passing, a presperformance of which was required by the ent interest of 24-100 in the property codecree below.
ered by its provisions, and required R. W. An obligation of like character as to | Waterman to convey such interest at any date and terms was taken by J. S. Water time before or after the expiration of 12 man from Porter with respect to an undi- | months from that date, on the demand vided three one-bundredths of the same by .J. S. Waterman, his heirs, administra. property.
tors, or assigns, of a conveyance. The de. Prior to, but, perhaps, in expectation fendant disputed this interpretation of of, the execution of these writings, J. S. that instrument, and insisted that it was Waterman advanced to his brother and given and accepted only as security for Porter the sum of $1,817, and, subse. such moneys as J. S. Waterman might queptly, other sums, the aggregate advance for the development or manage., amount of advancements, on the 22d day ment of this property. of November, 1881, being $26,317, exclusive *We cannot assent to the view taken ny of interest. For each sum so advanced J. the court below. The bill alleges-and the S. Waterman took the notes of R. W. Wa. evidencefully sustains the allegation-that terman and Porter. It also appeared that when the writing in question was given the when the writings of May 14, 1881, were title to this property was in dispute, and given, R. W. Waterman was indebted to that its development and improvement inJ. S. Waterman in the sum of $11,750.53 volved the expenditure of large poms, for moneys loaned; but R. W. Waterman great risk of the total loss of everything contended that, if all matters of business invested in it, and uncertainty of profit. between them had been settled, he would tader these circumistances, J. S. Waternot have been then indebted to his brother man, according to the decided preponderin any sum whatever.
ance of the evidence, did not wish to beJ. S. Waterman died July 19, 1883, hav. | come a part owner of the property, or to ing made a will, which was dated Novem- | incur the responsibility of developing and ber 28, 1870. That will provided, among managing it in conjunction with his other things, that any and all notes, bills, I brother and Porter. He was entirely accounts, agreements, or other evidence willing, indeed, anxious, to assist his of indebtedness against any of his broth- / brother, but was not willing, at the out. ers, held by the testator at his decease, be set, to take an interest in the property, canceled by bin executors, and delivered or to become connected with them in busiu up to the maker or makers without pay ness. His chief concern then was to secure ment of the same, or any part thereof, the repayment of sums advanced and to except two notes against John C. Water be advanced by him to his brother and man, secured by a deed of trust on lands, Porter for the development of the prop. which were to be collected and equally erty, postponing to a future time the divided between his brothers and sisters, I decision of the question as to whether he and the children of such as had died. By would take an interest in the property, as a codicil to the will, of date December 7, suggested in the letter of April 5, 1881. 1872, his brother R. W. Waterman was if it proved to be valuable he would incur substituted as executor, in place of George no responsibility by becoining a part S. Robinson.
owner, and uniting with his brother and Upop the paper of May 14, 1881, given by Porter in its development and inanage. R. W. Waterman, appears the following ment. If it proved to be worthless, and if indorsement: "I hereby assign the within his brother and Porter were unable to to Mrs. Abbie L. Waterman. J. S. WA. meet their notes, he would only lose, and, TERMAN. M'ch, 1883. I hereby agree to as he possessed large wealth, could afford execute the within agreementon demand.” | to lose, the sums advanced by him. These In March, 1883, the paper with this in. were the objects he had in view when he dorsement upon it was presented to R. prepared and obtained from his brother W. Waterman, and he refused to eign it. the writing of May 14, 1881. That writing At that time there was a balance of about evidently contemplated that, “out of the $11,000 due J. S. Waterman on the notes derelopment of the above property,” that given by R. W. Waterman and Porter. is, out of its earnings, were to be paid'them Porter signed a similar indorsement on the expenses incurred in providing machinery, writing of May 14, 1881, executed by him; in making improvements, etc. These but the evidence satisfactorily shows that expenses were to be met, in the first inhe did this only to indicate bis willingness stance, by the moneys advanced by J. S. that that paper should stand as security Waterman to his brother and Porter. simply for the moneys advanced by J. S. | They could not have been otherwise Waterman.
paid; for the resources of R. W. Water. All the moneys advanced to R. W. Wa- man and Porter were very limited, and
the property had not then been sufficient. | said: “The paper signed by the defendant ly developed to become itself the basis of is not a contract, but ou its face, and by borrowing large sums from banks, or it very terms, only a refusal or offer of the froin individual lenders of money. All lands to the complainant at a certain this is manifest from the facts in the case. price. This is not disputed by the counsel
But it is clear from the face of the writ. of the complainant. This, like all such ing, without calling to our aid the circum. offers, was not binding, and could not be stances under wbich it was executed, that converted into a contract, unless accepted J.8. Waterman did not stipulate for a pres- | within the thirty days. Whether, ent interest in the property. It was drawn such an offer is made for a mere nominal Boas not to give him an interest, as owner, consideration, the person offering can during the period supposed to be required withdraw it within the time specified, it is for its development. While intended by | pot necessary to consider, as it was not the parties as security for moneys ad. | withdrawn; and, like all such offers, it vanced and to be advanced by J. S. Wa. | would be binding if accepted within the terman, it contains no word or clause in- | time, and before it was withdrawn." dicating a purpose tu create, as of its | Again: “There can be no question but date, the relation of purchaser and vendor that when an offer is made for a time limbetween him and R. W. Waterman. It itell in the offer itsell, no acceptance aftergave the former, his heirs, administra- | wards will make it binding. Any offer tors, and assigns, an option to demand a without consideration may be withdrawn conveyance within a prescribed period, | at any time before acceptance; and an thus making time of the essence of the offer which, in its terms, limits the time agreement. If a conveyance was not de of acceptance is withdrawn by the expira. manded within that period, the obligation tion of the time.” of R. W. Waterman to make one ceased The rule is well expressed in Lord Rane altogether. Sach was the contract; and lagh v. Melton, 2 Drew. & S. 278, where it the suggestion that the transposition of was said: “No doubt if- an owner of land. the words “at any time” was a mere and an intending purchaser enter into a clerical error, to be corrected by construc contract constituting between them the tion, is simply an appeal to the court to relation of vendor and purchaser, and make for the parties an agreement they there is a stipulation in the contract that did not choose to make for themselves, the purchase money shall be paid and the and then decree its specific perforinance. contract completed on a certain day, this No principle of equity would support such court, in ordinary cases, bas established a decree. Hepburn v. Dunlop, 1 Wheat. the principle that time is not of the essence 179. The demand for a conveyance within of the contract, and that the circumstances a given time-looking alone at the writing | of the day fixed for the payment of the - was made by the parties a condition | money and the completion of the purchase precedent to the acquisition by J. S. Wa- | being past does not entitle either party to terman of an interest in the property. R. refuse to complete. On the other hand, it W. Waterman did not agree to convey, I is well settled that when there is a con. except upon the peforniance of that con- | tract between the owner of land and an. dition precedent. The condition being other person, that if such person shall do lawful, it is not competent for the court a specified act, then he (the owner) will to dispense with its performance.
convey the land to liim in fee, the relation The principles by which a court of equi- / of vendor and purchaser does not exist aty is goverved in cases of this character between the parties unless and until the
are well settled. Mr. Justice Story says act has been done as specified. The court * that “potwithstanding the rule is well | regards it as the case of a condition, in established in courts of equity that time the performance of which the party perwill not be regarded as indispensable, in forming it is entitled to a certain benefit; regard to decreeing specitic performance but in order to obtain such benefit he of contracts for the actual sale of lands | must perform the condition strictly. on one side and the actual purchase on Therefore if there be a day fixed for its the other, it is different where the con: 1 performance, the lapse of that day withtract gives a mere election to purchase out its being performed prevents him from upon certain conditions. Accordingly, claiming the benefit." where upon a lease, with the right of pur In Taylor v. Longworth, 14 Pet. 172, chase within seven years, upon giving 174, the principle was recognized that time three months' notice, and paying a fixed may become of the essence of a contract eum at the expiration of such notice, and for the sale of property, not only by the the legsee gave the requisite notice, but express stipulation of the parties, but did not pay the money in time, a bill for from the very nature of the property itspecific performance was dismissed. And self. This principle is peculiarly applicaa similar decision was made by the lord ble where the property is of such characchancellor, where his lordship said: "The ter that it will likely undergo sudden, things required must be done in the order frequent, or great fluctuations in value. of sequence stipulated. These were notice In respect to mineral property, it has and the payment of the money, on a day been said that it requires-and of all certain.'' Eq. Jur. § 777a. In Potts v. I properties, perhaps, the most requiresW'bitehead, 20 N. J. Éq. 55, 57, 59, which the parties interested in it to be vigilant was a euit for the specific performance of and active in asserting their rights. a contract to convey land, -the owner Prendergast v. Turton, 1 Younge & C. Ch. stipulating, for the consideration of $1, 110; Doloret V. Rothschild, 1 Sim. & S. that the complainant should have, for 30 590, 598; Fry, Spec. Perf. S$ 714, 715; Pom. days, the refusal of the lands,-the court | Cont. $$ 384, 385; Brown v.Covillaud, 6 Cal. 566, 572; Green v. Covillaud, 10 Cal. 317, 324; | map and J. S. Waterman shortly after the Magotiin v. Holt, 1 Duv. 95.
writings of May 14, 1881, were executed. That J. S. Waterman did not, in fact, ac. R. W. Waterman wrote to his brother, uncept the writings of May 14, 1881, as pass der date of July 16, 1881: “I expect you will
ing to him a present interest in the prop. | have to come out next mo. That suit Certy, but, at the utmost, as security for must come off; I ain tired of holding wit.
the moneys advanced and to be advanced nesses.” Under date of July 22, 1881: by him, with the right reserved, or the op "Things are transpiring wbich I fear will tion given, to demand a conveyance with- make us work to beat Miller. * . If in a certain time, is established by many the suit conies off you must be here." Unfacts and circumstances disclosed by the der date of July 30, 1881: “I shall do all I evidence. When those writings were can to get this trial on right away, and given, the title of R. W. Waterman and you must hold yourself in readiness to come Porter to this mining property was dis. | out at a moment's warning. * * * I puted by one Miller. This fact was well will telegraph you when wanted.” Under known to J. S. Waterman. In a suit date of August 2, 1881: “It [tbe suit] is brought by Miller he was examined as a set for the first Monday in September, and witness for R. W. Waterman, for the pur- you must be here. The lawyers say that pose of contradicting the evidence of Mil. your evidence is very important, and your ler. His cross-examination, as taken presence will help very much.” Under down, at the time, by the official reporter date of August 3, 1881: “I wrote you my of the court, was as follows: “Question. | suit came off in Sept. They changed the Have you any pecuniary interest in this time; 'tis the 30th of August, and you litigation? Answer. No, sir. Q. Have must be here. Rowell and Willis say 'tis vou an interest in any of these mines, rers necessary." Under date of August out there ? A. No, sir. Q. Or in the mill? | 10, 1881: "Hope nothing will prevent your A. No, sir. Q. Haven't you made ad. being out at the suit.” Under date of Auvances of money the repayment of which gust 15, 1891: “I am at Rowell's office. He is dependent principally upon your brother says you must be here. My case is set for and . Porter retaining these mines and the 30th of August, and Porter's for Sepworking them? A. Yes, sir. Iluaned them tember 30. Don't fail us.” Under date of money. Q. And you understand that | August 15, 1881: "The suits are set for the their ability to pay depends in a great 30th of August and 3d of September. Come measure, if not entirely, upon their re- the northern route." Under date of Autaining these mines and working them gust 20, 1881: “I really hope you will be successfully? A. That hasn't been talked able to be here at the suit: 'tis set for over. Q. Isn't that your understanding Aug. 30, and Porter's for Sept. 3d, and of it? A. That is the noderstanding; can't be put off.” To R. W. Waterman's they would have to pay out of the inipes. letter of July 30, 1881, J. S. Waterman reQ. They would have no other mines to plied: "I shall hold myself in readiness, pay you from? A. They bave other | but you see Rowell and Willis before you mines. Q. Do you think they have other send;” and in a letter of August 8, 1881, he mines that would respond? A. I think said: “Try and not send for me till of the Mr. Porter has, or either one of them. I last of the month, or 1st of Sept." merely have their promise to pay, no se It thus appears that J. S. Waterman, in curity. Q. Haven't you been up the coun- response to these urgent requests of his try examining mills and machinery for | brother to attend the trial of the Miller their use? A. Yes, sir. Q. Haven't you suit, went to California, and stated, under taken au active interest in their mining oath, when the execution and object of the operations? A. I purchased the mill. writings of May 14, 1881, must have been Yes, sir. I became security for them." fresh in his recollection, that he had no in
The learned counsel for the plaintiff, re terest in the mines in question in thatsuit, ferring to this evidence, observes. “But it and which are the identical mines referred is said that, subsequently to the date of to in those writings. How can the theory the contracts, James S. Waterman admit of this suit, namely, that J. S. Waterman ted that he had no interest in the mines, acquired a present interest by the writ. but it does not appear that he was then ings of May 14, 1881, be sustained consist. the owner of the contracts. It may be ently with his oath in the Miller suit? He presumed from the evidence that he had was, as we infer from the record, a gentlepreviously assigned them to complainant." man of intelligence, and it must be anBut it does appear, conclusively, that the sumed that he knew what he was saying • above statement by James S. Waterman, when he testified in August, 1881, that be under oatlı, that he had no interest in the had no pecuniary interest in the litigation mines, was made subsequent to the execu between Miller and his brother, involving tion of the writings of May 14, 1881, after the title to this property, and no interest he had advanced to R. W. Waterman and in the mines themselves. Purter nearly $24,000, but long before the To all this may be added the fact, estab. assignment of the writing of May 14, 1881, lished by several witnesses, that J. S. to his wife. The assignment to Mrs. Wa. Waterman declared, in their presence, on terman was in March, 1983,- it is so al. different occasions, that he did not have leged in the bill, -While the cross-exam. an interest in this property, and only deination of J. S. Waterman in Miller's suit sired to secure the repaymeut of such sums took place in August or Septcniber, 1881. as he advanced to his brother and Porter This latter fact is proved by several wit. on account of it nesses, some of whom participated in the The only fact that is apparently incon. trial as attorneys, and from numerous sistent with the view weliave talien of tbe letters which passed between R. W. Water evidence is the offer made by R. W. laier. man in his letter of April 5, 1881, that his , those in the above case, (12 Sup. Ct. Rep. 146,) brotber should take an interest in these and, for the reasons stated in the above opinion, mining claims. But it does not appear
| the decree in this case must also be reversed and that this offer, as made, was accepted. Ou
remanded, with directions to dismiss the bill.
It is so ordered. the contrary, the decided preponderance of evidence shows that, upon full consid.
(144 U. S. 75) eration, be declined to take a present in KENT V. LAKE SUPERIOR SHIP CANAL, RAIL. terest in the property as one of its own
WAY & IRON Co. et al. ers; that, at the outset, be only sought
(March 14, 1892.) to be secured in respect to the money he
JUDGMENT—COLLATERAL ATTACK-FRAUD–JURISmight advance to his brother and Porter;
DICTION-CITIZENSHIP. and that the writings of May 14, 1881, were intended by the parties simply as security
1. A land-grant canal company having given
four trust-deeds to secure separate issues of ne moneys 80 advanced, with an op- | bonds, proceedings were instituted to foreclose/ tion to J. S. Waterman to demand a con | the first deed, and the trustees in the others were to veyance of the respective interests describ made parties defendant. A decree was entered, Sed, within a time limited.
without objection, directing the receiver to exe*As the moneys advanced by J. S. Water
cute a trust-deed creating a paramount lien, and man to R. W. Waterman and Porter were
to issue receiversbip certificates thereunder to
complete the canal, in order to prevent the lands all repaid before the commencement of this
from reverting to the government under the terms suit, and as no conveyance was demanded
of the grant. Subsequently & bondholder deliv. from R. W. Waterman within the time ered bonds to his trustee, and received a release limited by his obligation, the plaintiff was of 8,000 acres, according to a provision of the not entitled to the relief asked.
trust-deed; but his trustee had, in the mean time, One other point requires notice at our
brought a bill of foreclosure in which he recog. hands. An interlocutory decree was ren
nized the priority of the receiver's trust-deed.
The foreclosure suits having been consolidated, dered declaring the plaintiff to be entitled
a decree was entered for the sale of all the prop to the relief asked, and the cause was re erty, and by a clause therein the release was ferred to the master to state the accounts clared void. The proceeds of the sale were between the parties in respect to the use barely suficient to discharge the receiver's cer. of the property, and the profits derived tificates. Held, that plaintiff was bound by the from it. The master made his report, and
bona fide acts and admissions of bis trustees dur. the final decree recites that each party
ing the litigation, and could not afterwards, in waived the right to except to it. This
another court, upon general allegations of fraud
in the foreclosure, assert the validity of the rewaiver is relied upon as showing that the | lease without alleging actual fraud on the part final decred was by consent, and, therefore, of his trustee. not to be questioned in this court. This 2. The fact that assignees in bankruptcy of contention is overruled. The waiving of | the corporation, appointed by a different court, exceptions to the master's report nieant
| made all of the trustees, the receiver, and the pothing more than tbat the appellant did
| plaintiff in this action, defendants in a bill pray
ing that plaintiff's release be declared valid, and not dispute its correctness in respect to the
that plaintiff stipulated for a decree against him amount of the profits realized from the
pro confesso, does not establish the validity of property. This waiver had no reference the release, as a person cannot create rights for to the fundamental inquiry as to whether | himself, nor cut off the rights of others by adthe plaintiff was entitled to a conveyance. mission. But as, for the reasons stated, R. W.
3. Mere epithets charging fraud and allegaWaterman was not bound to convey, the
tions of legal conclusions are cot admitted by de
murrer. time having elapsed in which a convey
4. Where & federal court has exercised juance could be rightfully demanded, the en.
risdiction growing out of diverse citizenship in tire decree falls.
proceedings to foreclose a trust-deed, such jurisThe decree is reversed, and the cause re. diction cannot be questioned in a subsequent acmanded, with directions to dismiss the tion in another court by a person owning bonds bill.
secured by the deed, especially when his trustee
raised the question in the former suit, and it was (144 U. S. 407)
decided against him.
Appeal from tbe circuit court of the Unit.
ed States for the eastern district of New Appeal from the circuit court of the United
FTATEMENT BY MR. CHIEF JUSTICE FULLER. man against J. L. Porter for specific perform
*This was a hill in equity brought in the ance. Plaintiff having died, her executor, James
supreme court in and for the county of M. Banks. wag substituted for her. Decree fo Kings, N. Y., February 7, 1884, by Andrew plaintifr. 27 Fed. Rep. 827. Defendant appeals. Kent, as executor and trustee of the last Reversed.
will and testament of Jonathan T. We'ls, Geo. F. Edmunds, for appellant. C. C. Bon
deceased, against the Lake Superior Ship ney and E. W. McGraw, for appellee.
Canal, Railway & Iron Company: TheoPer CURIAM. The decree in this case required
dore M. Davis; Theodore M. Davis, as rethe specific execution by Porter of a written ob
ceiver of the Ocean National Bank or New ligation to J. S. Waterman, similar in all re York; J. Boormau Johnston, Isaac H. spects to that of R. W. Waterman, referred to Knox, and Gordon Norrie, being the surin the foregoing opinion, except that the inter
| viving partners of the firm of J. Boorman est which Porter agreed to convey was three
| Johnston & Co.; Frederick Ayer, sole sur. one-hundredths of the same property; also to pay to the original plaintiff, Abbie L. Waterman,
| viving partner of the firm of J. C. Ayer & • the sum of $5,373.40, as the profits of the proper
Co.; Frederick F. Ayer, Josephine Ayer, ty agreed to be conveyed, with the interest that and Benjamin Dean, administrators with accrued thereon prior to 'January 10, 1888. The the will annexed of the estate of James C. facts in this case do not materially differ from Ayer, deceased; and Thomas N. McCarter;