CUSHMAN
District Judge.
This is
a suit to impress a trust upon certain property held by the
defendants, and to compel the specific performance of a
contract to convey such property to the plaintiff for an
accounting and general relief. As a condition, upon refusing
to appoint a receiver, the court required the deposit in the
registry of the court of $23,000. By subsequent payments
required, the amount now in the registry of the court is
$40,000.
The
plaintiff is an English corporation. Defendants are citizens
of the states of Washington and Oregon. The plaintiff
alleges: That on June 18, 1914, and prior thereto, the
corporate defendants and J. Lindenberger, a firm duly
registered according to the German law, were carrying on, in
conjunction--the proceeds being pooled-- certain businesses
near the West Coast of the United States, consisting of
curing, freezing, and canning fish, general merchandising
business and subsidiary businesses in connection with which
certain described lands and other property were owned and
used. That on such date the first three named corporate
defendants, hereinafter called the 'Vendor
Companies,' agreed to sell to complainant the property
owned by them and the good will of each, with certain
exceptions: Except the book and other debts owing them on the
1st day of June, 1914, that defendants were to discharge all
their debts existing on June 1, 1914; furnish plaintiff
evidence of title to their properties, defendants to remain
in possession to July 30, 1914, maintaining the businesses as
going concerns, but should be deemed from the 1st day of
June, 1914, to have been carrying on such businesses on
behalf of the plaintiff herein, and should respectively
account and be entitled to be indemnified accordingly.
The
contract was as follows:
'This
agreement made the eighteenth day of June one thousand and
nine hundred and fourteen, between J. Lindenberger,
Incorporated, a company incorporated under the laws of the
state of Oregon in the United States of America, the
Lindenberger Packing Company, a company incorporated under
the laws of the state of Washington in the said United
States and the West Coast Trading Company, a company
incorporated under the laws of the said state of Washington
(which three companies are hereinafter collectively
referred to as the Vendor Companies) by Hermann
Lindenberger, their attorney of the first part, J.
Lindenberger of 31 Georgenkirch Strasse, Berlin, a firm
duly registered according to German law, of the second
part, and the Lindenberger Cold Storage & Canning Company,
Limited (hereafter referred to as the Purchasing Company)
of the third part: Whereas the Vendor Companies have their
respective headquarters at Seattle in the said United
States and for some time past they have each of them been
carrying on business at various places on or near to the
West Coast of the said United States; and whereas the
business so carried on by J. Lindenberger, incorporated,
has been the business of catching, freezing, pickling,
curing and cold storage of fish and other produce and the
manufacture of ice and other subsidiary businesses and the
business so carried on by the Lindenberger Packing Company
has been the business of packing and canning fish and other
subsidiary businesses, and the business so carried on by
the West Coast Trading Company has been the business of a
general merchandise store and other subsidiary businesses;
and whereas all the said businesses have been worked and
carried on in conjunction and the profits derived therefrom
pooled; and whereas in connection with the said businesses
the Vendor Companies or some or one of them are entitled to
the lands or rights and privileges over lands of which
short particulars are set forth in the schedule hereto; and
whereas the Purchasing Company has been formed in England
under the Companies Acts 1908 and 1913 with a nominal
capital of two hundred and fifty thousand pounds divided
into one hundred and twenty-five thousand cumulative
participating preference shares of one pound each and one
hundred and twenty-five thousand ordinary shares of one
pound each, with a view amongst other things to the
acquisition of the said businesses; and whereas by clause 3
of the articles of association of the Purchasing Company it
is provided that the Purchasing Company shall enter into
the agreement therein referred to, being this agreement;
and whereas the said J. Lindenberger has agreed to join in
these presents for the purposes
of entering into the agreement on their part hereinafter
contained; Now it is hereby agreed as follows:
'1.
The Vendor Companies shall sell and the Purchasing Company
shall purchase as from the first day of June one thousand
nine hundred and fourteen:
'First,
the good will of the said businesses and each of them with
the right to use the name Lindenberger as part of the name
of the Purchasing Company and to represent the Purchasing
Company as carrying on the said businesses in continuation
of and succession to the Vendor Companies respectively and
all trade-marks and registered labels or brands connected
with the said businesses or any of them.
'Secondly,
all the lands and rights and privileges over or in regard
to lands of which short particulars are set out in the
schedule hereto.
'Thirdly,
all the plant machinery, office furniture, patents,
licenses, horses, wagons, carts, implements, and utensils,
ships, barges, boats, launches and scows and the tackle and
pulleys connected therewith, all fishing nets and tackle
and all other existing and necessary articles of every
description requisite for carrying on the business which
the Vendor Companies or any of them are, is or may be
entitled in connection with the said businesses or any of
them.
'Fourthly,
the full benefit of all pending contracts and engagements
to which the Vendor Companies or any of them are, is or may
be entitled in connection with the said businesses or any
of them.
'Fifthly,
all other property or rights and privileges of every or any
description to which the Vendor Companies or any of them
are, is or may be entitled in connection with the said
businesses or any of them, provided always that there shall
be deemed to be excepted out of the sale hereby agreed to
be made (first) all the book and other debts owing to the
Vendor Companies, or any of them, in connection with the
said businesses, or any of them, on the said first day of
June, one thousand nine hundred and fourteen, and the full
benefit of all securities for such book debts, and
(secondly) all cash in hand and at the bank and all bills
and notes of the Vendor Companies or any of them in
connection with the said businesses or any of them on the
same day.
'2.
Part of the consideration for the said sale shall be the
sum of one hundred and eighty-nine thousand pounds which
shall be paid and satisfied as follows, namely: As to the
sum of sixty-five thousand pounds by the allotment to the
Vendor Companies, or one of them, or their respective
nominees, of sixty-five thousand fully paid-up cumulative
participating preference shares of one pound each in the
capital of the Purchasing Company to be numbered 1 to
65,000, inclusive, and as to the sum of one hundred and
twenty-four thousand pounds by the allotment to the Vendor
Companies or one of them or their respective nominees of
one hundred and twenty-four thousand fully paid-up ordinary
shares of one pound each in the capital of the Purchasing
Company, to be numbered 1 to 124,000, inclusive. As between
the Vendor Companies the said sixty-five thousand
preference shares and the said one hundred and twenty-four
thousand ordinary shares shall be divided as shown in the
following table, namely:
----------------------------------------------------------------------------------------
Name of Vendor Number of Preference Shares Number of Ordinary
Shares to Company. to be Allotted to Each be Allotted to Each
Company Company or its Nominees and or its Nominees and
Denoting Denoting Numbers of Such Numbers of Such Shares.
Shares.
----------------------------------------------------------------------------------------
J. Lindenberger, 32,000 65,000 Incorporated Nos. 1 to 32,000
inclusive Nos. 1 to 65,000, inclusive The Lindenberger 30,000
54,000 Packing Company Nos. 32,001 to 62,000, inclusive Nos.
65,001 to 119,000, inclusive The West Coast 3,000 5,000
Trading Company Nos. 62,001 to 65,000, inclusive Nos. 119,001
to 124,000, inclusive
----------------------------------------------------------------------------------------
'The
residue of the consideration shall be the amount expended by
the Vendor Companies, respectively, before the first day of
June, one thousand nine hundred and fourteen, in making
preparation for the new season's pack over
and above the value of twenty-thousand dollars, which is to
be for the benefit of the company. Such amount if not
otherwise agreed on is to be determined by a single
arbitrator in accordance with the Arbitration Act 1889,
provided that the company shall only be called upon to make
such payment as and when it receives funds through the sale
of its stock.
'3.
The Vendor Companies shall undertake to pay and satisfy all
their debts and liabilities in connection with the said
businesses, or any of them, existing on the said first day of
June, one thousand nine hundred and fourteen.
'4.
The Vendor...
