The
original bill was filed July 20, 1897. Frederick B. Pierce
Milo T. Sipe, R. Peterman, and Louis Smith were made parties
defendant on the ground that they had, or claimed to have
some interest in the property, which, it was alleged, was
subsequent to, and subject to, the claim of the complainant.
An amended bill was filed September 6, 1897, to which Charles
Bell was added as a party defendant. The supplemental bill
was, by leave of the court, filed October 25, 1897. Charles
E. Brooks was made a party defendant thereto. The
supplemental bill prayed for relief against two judgments
obtained by default against complainant in the state district
court for Ormsby county, Nev.,-- one by the National Nickel
Company for $26,080 damages for breach of the contracts A and
C; the other in favor of Charles E. Brooks, a stockholder in
the National Nickel Company, to set aside and cancel Exhibit
B. Both of these judgments, after the filing of the
supplemental bill herein, were set aside by the state courts
and hence are eliminated from this suit, except in so far as
they may tend to sustain complainant's allegations of
fraud against the defendant corporation. An answer of the
National Nickel Company to the amended bill was filed
September 29, 1897, and to the supplemental bill on April 5
1898. A separate answer of Louis Smith was filed October 14
1897, and a separate answer of Charles E. Brooks to the
supplemental bill was filed April 5, 1898.
The
complainant's right to recover herein rests upon the
construction which is to be given to certain contracts and
instruments of writing executed by the respective
corporations, and upon the testimony of witnesses as to
whether the covenants in said contracts and instruments, to
be performed by complainant, have been performed in such a
manner as to be binding upon the defendant corporation. These
contracts are hereby designated as Exhibits A, B, and C.
Exhibit
A reads as follows:
'Articles
of agreement made the fifteenth day of October, one
thousand eight hundred and ninety-four, between the Nevada
Nickel Syndicate, Limited, whose registered office is
situate at 40 Great Tower street, in the city of London
(hereinafter called the 'syndicate'), of the first
part; the National Nickel Company, a company formed under
the laws of the state of Illinois (hereinafter called the
'company'), of the second part; and John Leighton,
of 7 Nottingham place, Marylebone road, in the county of
London, gentleman, of the third part: Whereas, the company
are the owners of the nickel mines, particulars of which
are mentioned and set forth in the schedule hereto; and
whereas, they are desirous of erecting plant for the
purpose of working the said mines; and whereas, Mess.
Thomas Bolton & Sons, of Oakamoor Mills, near Cheadle,
North Staffordshire, have agreed to purchase from the
company one hundred and twenty-five tons contained nickel
in matte at a price which will amount to ten thousand five
hundred pounds, or thereabouts; and whereas, the company
have applied to the syndicate to provide such a sum as may
be necessary for the erection and preliminary working of
the machinery necessary to manufacture and ship a limited
quantity, not exceeding the amount of matte required to
provide for the order above mentioned, which the syndicate
agree to do upon the terms hereinafter mentioned: Now, it
is hereby agreed as follows: (1) The company will forthwith
instruct Frederick William Martino, of Sheffield, or, in
the event of his declining or being unable to act, some
other person of equal position, to be approved by the
syndicate, to proceed to Nevada for the purpose of
purchasing and erecting the machinery necessary for the
purpose above mentioned, and will arrange with the said
Frederick William Martino; or such other expert as
aforesaid, to superintend the purchase, erection, and
preliminary working of such machinery as aforesaid. (2) The
syndicate will from time to time provide the moneys
necessary to pay for such machinery as may be deemed
necessary by the said Frederick William Martino for the
purpose aforesaid, and for the traveling expenses of the
said Frederick William Martino, not exceeding two hundred
pounds, and for the salary of the said Frederick William
Martino, and for the wages of the men required for the
erection and preliminary working of the said machinery, but
so that the aggregate amount to be provided under this
clause, including the costs and expenses connected with the
negotiations for and completion of these presents, and the
formation and registration of the syndicate, and all costs,
charges, and expenses to which the syndicate may be put in
connection with the business, the subject of this
agreement, and also including the traveling expenses of a
representative of the company, not exceeding two hundred
pounds, and those of a representative of the syndicate, who
is to proceed to Nevada as hereinafter mentioned, and which
are agreed at the sum of two hundred pounds, shall not
exceed four thousand pounds. (3) The company hereby agree,
for the considerations aforesaid, to pay to the syndicate a
sum equal to the aggregate amount provided by them under
clause 2 of this agreement, together with a bonus of eight
hundred pounds, within ten days after bills of lading for a
sufficient portion of the said one hundred and twenty-five
tons of contained nickel to produce the said aggregate
amount, and the eight hundred pounds, after providing for
discount, first arrive in England, but so that under no
circumstances shall payment of the said mount be delayed
beyond the first day of August, one thousand eight hundred
and ninety-five. (4) The company further agree to pay the
syndicate a further bonus of seven thousand two hundred
pounds in manner following: That is to say, the sum of
eight hundred pounds on the first day of November, one
thousand eight hundred and ninety-five, and the sum of one
thousand six hundred pounds on the first day of November in
each of the four following years. (5) The syndicate shall
be entitled to send a representative to the said mines, who
shall have the disbursement of all moneys in connection
with the said works, and have general superintendence of
the
works. (6) For the purpose of securing the payment of the
moneys payable by the company to the syndicate as provided
in clause 3 hereof, the company hereby transfers to the
syndicate absolutely all ore at present mined, or which may
during the continuance of the security be mined, by the
company, and all plant, machinery, and other assets of the
company for the time being at the said mines; and they
agree forthwith to give possession to the syndicate by the
representative of the company who is to proceed forthwith
to Nevada, to the end that the absolute control of the said
mines and all other assets of the said company on the said
mines shall be and remain in the custody of the syndicate,
by way of security to them for the repayment to them of the
moneys payable under clause 3 as aforesaid. (7) By way of
further security for the payment of the said moneys payable
by the company under clause 3 as aforesaid, the company
hereby charge with the payment thereof the contract of the
company with the said T. Bolton & Sons for the purchase of
the said one hundred and twenty-five tons contained nickel,
and the proceeds of sale thereof. And these presents shall
be a sufficient authority to the said T. Bolton & Sons to
pay the proceeds of sale of the said contained nickel in
matte in cash to the syndicate, and the receipt of the
syndicate, or of any officer duly authorized by them, shall
be a sufficient discharge to the said T. Bolton & Sons for
all moneys payable in respect of the said one hundred and
twenty-five tons of contained nickel. (8) By way of
security for payment of the sums which will become payable
in the year one thousand eight hundred and ninety-five, and
each of the four subsequent years, by the company, under
clause 4 of these presents, the company hereby charge the
first products of the mines during each of such years,
respectively, with the payment of the amount payable in
such year, except that as regards the year one thousand
eight hundred and ninety-five the charge shall only operate
after the said one hundred and twenty-five tons of
contained nickel has been produced. (9) The company hereby
guaranties that it has not and will not issue any
debentures which can in any way take priority over the
charges hereby created, and it is expressly stipulated that
the syndicate shall not be bound to make any advances other
than the necessary cost of traveling expenses and current
salary of Mr. Martino, unless and until the syndicate shall
be satisfied, by an examination of the registers necessary
under the law of Nevada, that no such charges exist; and,
in the event of any such charges being discovered, the
company hereby agree forthwith to repay all moneys then
advanced by the syndicate, together with all expenses and
costs as hereinbefore mentioned, and together with interest
thereon at five per cent. per annum. (10) the above
agreement has been entered into by the syndicate at the
request of the said John Leighton, who is largely
interested in the company; and the said John Leighton, in
consideration thereof, hereby guaranties the due payment of
the moneys payable by the company under clause 3 of these
presents, and, further, that the company shall and will
make, do, execute, and perfect all such deeds and
documents, and make and complete all registrations
necessary to give the syndicate a valid and effectual
charge on the products of the mines, as provided by clause
eight of these presents,
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