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each. The subscribers to the stock have the greatest confidence in the success of the company, and cheerfully recommend it to the consideration of those de siring a profitable investment, believing that an examination of the properties will more than confirm any statement made concerning it." -That the Old Peach Bottom Slate Company, of Harford county, referred to in the prospectus, was a corporation formed practically by plaintiff some time in 1890 to take this property of the defendant and the Coleman tract and operate the two properties.
That the $77,000 mentioned as the cost of the two properties in the prospectus, was made up of $65,000 to be paid for defendant's property and $11,700 to be paid for the Coleman tract. That the reason why plaintiff ,made the cost of the Coleman property $12,000 was that “when I first presented the matter and told them the cost of the Coleman tract was $11,700, every one said, “we will call it $12,000 in round numbers,” so plaintiff put it at $12,000 in the prospectus to make it an even sum, but explained to nearly every one that the property cost "nearly $77,000.” That this prospectus was shown to the president of the defendant some months after the deed had been prepared, and that said president knew what properties were, included in the $77,000. That plaintiff, in the spring of 1891, and later, had negotiations known to the officers of the defendant with various parties looking to getting money to complete the purchase and payment of the balance of the money. That he kept the president and secretary of defendant advised as to whom he had interested in the matter, and took, at various times, parties of gentlemen to the quarries. That the president of defendant always went around and showed these gentlemen the properties, and explained what the resources of them were. That Mr. Hill, of Baltimore, came up in February, 1891, and the president of the defendant met him and showed him through the quarries and over the Coleman tract. That in April or May, 1891, several parties came up with the same object with Thomas A. Hays. That shortly after May, 1891, the railroad facilities were poor, and plaintiff said to the president of defendant that he thought "we had better defer further efforts until the railroad company got into better shape; for the reason that if any parties were brought there the first question would be, 'What are the facilities for transportation ?'” That the defendant's president agreed with plaintiff that it would be better to suspend operations for the present. That this condition of things continued until winter came on. That winter is a very unfavorable time to show anyone the slate property, and no further effort was made until the spring of 1892. Then plaintiff resumed efforts. That the president of the defendant knew that plaintiff was working to get any one interested that he could. That in the fall of 1891 plaintiff received letters from Mr. D. P. Jones in regard to furnishing money to make up the balance of the $77,000 mentioned in the prospectus above set forth, to be paid for defendant's property and the Coleman tract, and that plaintiff showed the letters to the president of the defendant. That in the spring of 1892 plaintiff negotiated with Senator Baker, and with a party in Philadelphia. That the president of the defendant knew of these negotiations. That in addition to the negotiations spoken of, which were known to the officers of the defendant, plaintiff saw Governor Jackson, of Maryland, in February, 1891.
That about that time he had an interview with Mr. Rose, of Harrisburg. That he met a number of gentlemen in PhilaHelphia and New York. That he went to Newport and Providence, R. I. That he made several trips to Pittsburg, several to Philadelplia, several to New York, and a number to Baltimore. That, in
, fact, during what might be considered the proper season to work, after October 7, 1890, to July 15, 1892, there was not an interval of two weeks that he was not away seeing somebody in reference to these negotiations. That plaintiff spent his time and about $800 by way of expenses in conducting the said negotiations. That these efforts of the plaintiff to secure the balance of the purchase money were practically continuous down to July 15, 1892, when they were successful. That about June 20, 1892, plaintiff received a letter from Mr. Coleman in which Mr. Coleman said that he had a cash offer for the Coleman tract, and, unless plaintiff could dispose of it very soon, he would have to withdraw his option. Plaintiff showed this letter to the president of defendant and said: “If this Coleman property passes out of my control, it will be impossible for me to get the people to take your property, because the Coleman property is a very important feature of the transaction.”
And plaintiff further said to the president of the defendant that he had his party, he thought, ready to take defendant's property, but that it would require a few days, and plaintiff asked the president of the defendant that defendant should take the Coleman property, and hold it until plaintiff was ready to take the whole thing off its hands, and plaintiff would then take the Coleman tract off defendant's hands, together with the defendant's property. That this proposition seemed to strike the president of the defendant favorably. That the same proposition was communicated to the secretary of the defendant, and seemed to strike him favorably. That the same proposition was submitted to Col. Webster and Mr. Harlan, two directors of the defendant, Col. Webster being also a large stockholder, and Mr. Harlan being its counsel, and was finally accepted by defendant. And that the purchase of the Coleman tract was soon after made by defendant, at plaintiff's request, to enable plaintiff to get the balance of the purchase money for defendant's land, and then take the Coleman tract, together with the defendant's property, off defendant's hands. That the option under which the Coleman tract was finally purchased is the option above mentioned, continued sometimes in writing and sometimes verbally, and that plaintiff never paid Mr. Coleman anything for it. That a few days after the purchase of the Coleman property by the defendant, plaintiff met secretary of the defendant, who showed him a letter from Col. Webster asking him to come to Bel Air to see him. That plaintiff asked, “Were you down ?" That the secretary of the defendant answered, "Yes." That plaintiff said, “What did you do?” That the secretary of the defendant replied: “Well, we want you to have the property, but we have an offer from another party, and we don't want to lose the sale of it. We want you to hurry up.” That plaintiff therefore renewed his efforts, and saw Mr. Smith of Wilkesbarre, who agreed to take the property, with others, on July 15th. That on the 4th of July, plaintiff had an interview with Mr. Harlan, counsel for defendant, Mr. Rees, its president, and Mr. Humphrey, its secretary, and talked over the matter of the property. The plaintiff then, in response to the following questions, gave the following apswers:
“Q. State what occurred. A. They came in there from a meeting which they had at Mr. Rees' house. Q. Came in where?
Q. Came in where? A. Came to the bank. Q. At Delta ? A. Yes, sir. Q. Where you were? A. Where I was at their inyitation. I received word Mr. Harlan was coming up and desired to meet me on the 4th of July, and they came in there and talked this matter over. Q. What matter? A. The matter of the property,-paying the balance of the purchase money. I told them that I thought I could get the money by the 15th of July, and they gave me to the 15th of July to consummate it. Q. Was anything else said? A. Mr. Harlan remarked, 'You are to get a commission of $5,000;' I said, 'Yes, a commission of $5,000 and the $7,000 which I have already paid you. He said, 'Oh, that $7,000 was put in by speculators and lost.' I said, 'Why, you knock the wind out of me. I just felt as if the wind was knocked out of me, because it was the first intimation I ever had there was to be any forfeiture. It had never been intimated in the slightest degree. Mr. Harlan reared himself up and said, “Why, I am appalled to think you claim that $7,000.' The matter dropped then. We went away, and Mr. Harlan says, 'Well, we will pay you the $5,000 commission, but the $7,000 is a matter for further consideration. With that they went out. That was the first intimation I had that they had any notion of asking the forfeiture of that money. Q. That was all that was said ? A. That was all that was vital to the matter. Q. You say they gave you to the 15th to complete the contract and pay the balance of the purchase money? A. Yes, sir. Q. What happened, then, on the 15th? A. I wrote a letter accepting the properties, and had it served on Mr. Rees. Q. In the interview of July 4th, when you say you talked about the property, what property was it? A. It was the property of the Peach Bottom Slate Company, of Harford county, together with the Coleman property, which I expected to take off their hands at the price they had paid. Q. At your request? A. Yes, sir."
And on cross-examination, in answer to the following questions, plaintiff gave the following answers:
"Q. Now, Mr. McConkey, on the 4th of July, yesterday, you will remember, you said that in the bank Mr. Harlan and Mr. Rees and Mr. Humphrey verbally extended your right, under the option of April 19th, from the 4th of July to the 15th of July; that is correct, isn't it? A. Yes, sir. Q. That is the option of the original Peach Bottom property? A. My understanding was this: that they extended the time for me to raise this money until the 15th of July; in other words, they gave me until that time to get it." —That the letter served on the president of defendant by the plaintiff was as follows:
"July 15th, 1892. "Mr. Richard Rees, President of the Peach Bottom Slate Company, of Harford County-Dear Sir: I hereby give you notice of my readiness to complete the purchase of the 'Slate Properties and to enter into a mutually satisfactory arrangement as to the terms of payment of the balance of the purchase mori ey, and the taking possession of the properties, to wit, the lands of the York & Peach Bottom Slate Co., of Harford Co., $65,000; the lands known as the "Coleman Tract,” $11,700; subject to the following credits, to wit: Seven thousand ($7,000) dollars paid your company on account of the purchase money, and five thousand ($5,000) dollars to be paid me by your company as a commission for effecting the sale of the first-mentioned lands, leaving a balance of sixty-four thousand seven hundred ($64,700) dollars, thirty thousand ($30,000) dollars of which will be secured by mortgage on the first-mentioned lands, payable in five years, with interest at the rate of five per cent. per annum, and the remainder, to wit, thirty-four thousand seven hundred ($34,700) dollars, to be paid in cash as aforesaid. “Very respectfully,
Chas. R. McConkey." -That to that letter the following answer was received:
"Bel Air, Md., July 16, 1892. “Charles R. McConkey, Esq., Delta, Pa.-Dear Sir: Your letter of yesterday to Mr. Rees, in reference to purchase of quarry property of the Peach Bottom Slate Co. has been handed to us. The company has no knowledge of any arrangement for the sale of the property upon the terms stated in your letter, and desires to negative most strongly the intimation of the existence of any such arrangement. If your letter is intended as a proposition for the purchase of the company's property, it cannot be entertained on account of the inadequacy of the price offered. "Yours, very truly,
Harlan & Webster,
"Att'ys for the Peach Bottom Slate Co." -That this answer was received by plaintiff about July 16th. That about the 20th of July plaintiff's horse ran away with him, and he met with a very severe accident. That soon after his recovery from this accident plaintiff went to Mr. Stewart, his lawyer, in York, Pa., who prepared another letter, which plaintiff copied and sent, as follows:
"Delta, Pa., Sept. 13th, 1892. “Mr. Richard Rees, Pres. the Peach Bottom Slate Co. of Harril ('.., VI 1.Dear Sir: Referring to iny agreement, dated the 19th day of April, 1990, with your company to purchase all the real estate then held by your company in Harford Co., Md., and which has been kept up until the present time, I beg to say I am now prepared to take and accept the land and property therein mentioned in accordance with the terms of said agreement. You will please furnish me with the deeds and other papers necessary for an examination of the title and the preparation of the deed, and you will also have the property freed from all incumbrance, so that I may be able to obtain a title in accordance with the terms of said agreement. Your immediate reply and compliance will very much oblige me, as I desire to consummate the matter at once. "Yours, truly,
Chas. R. McConkey." To that plaintiff received answer as follows:
"Bel Air, Md., Sept. 15, 1892. "Charles R. McConkey, Esq., Delta, Pa.-Dear Sir: Your letter of 13th inst. to Mr. Rees, president of the Peach Bottom Slate Co., h:1s been han led to us to answer. The company denies that your option of April, 1890, has been kept up, and further denies that any agreement is in force under which you have the right to purchase all or any part of its land. "Yours, very truly,
Harlan & Webster, Att'ys." After that, plaintiff demanded the return of the money paid, by letter, as follows:
"Delta, Pa., September 24th, 1892. "Richard Rees, Esq., President the Peach Bottom Slate Co., of Harford Co., Md.-Dear Sir: In view of the refusal of your company to perform its contract with me, as demanded in my letter of the 13th inst. to you, and refused by letter of Harlan & Webster, your counsel, in their letter of the 15th inst., I now demand the return of the amount of seven thousand ($7,000) dollars paid on account of said contract and the interest thereon from each of said pay. ments, and also the remainder of five thousand ($5,000) dollars commission agreed to be paid me in said transaction, and on account of which I have received two payments aggregating tive hundred and thirty-eight 47-100 ($538.47) dollars. Your prompt compliance will oblige, “Very respectfully,
Chas. R. McConkey."
To this plaintiff received answer as follows:
“Bel Air, Md., Sept. 27, 1892. "Charles R. McConkey, Esq., Delta-Dear Sir: Your letter of 24th inst. to Richard Rees, Esq., president of the Peach Bottom Slate Co., of Harford Co., has been forwarded to us. The company still insists that it has no subsisting agreement of any kind with you and respectfully declines to comply with the demand made in your letter. "Yours, truly,
Harlan & Webster, Attys for Company." —That then plaintiff referred the matters to his attorneys, who brought suit that fall; but the case failed by reason of lack of jurisdiction in the Pennsylvania courts, and a short time afterwards this suit was brought in Maryland.
Plaintiff further testified that the president of the defendant, in the spring of 1891, agreed to take $3,000 of the stock of the new company formed by plaintiff in order to help plaintiff raise balance of purchase money; that from February, 1889, to July, 1892, the quarries of the defendant were worked in about the same way they had been worked for years, as far as plaintiff could judge; that from October 7, 1890, to July 4, 1892, no one ever said anything to plaintiff about the forfeiture of the $7,000 paid.
"Q. Did ever anybody connected with the company ask you to hurry to get ready to complete your purchase? A. No, sir. Mr. Humphrey, secretary of defendant, either sent me or handed me in an envelope, a copy of a letter that he had received from Col. Webster, as follows:
“ 'Bel Air, Md., Oct. 11, 1890. “ 'John Humphrey, Treas.-My Dear Sir: Mr. Walworth's letter to Mr. McConkey of 6th inst., a copy of which you kindly inclosed on 10th inst. in reference to contract for buying the quarry, is rather an unusual business communication. Of course we highly appreciate Mr. Walworth's good opinion that we are "fair-minded men,” and “will accept the situation gracefully and gentlemanly,” but we certainly would like to be informed what the situation is that we are expected to accept. We have made a contract to sell a certain valuable property upon terms clearly stated. Does Mr. Walworth propose to fulfill his contract, make his cash payment, now overdue, and take his deeds, and if so, when are we to expect the cash payments? I prefer that Mr. Walworth shall take the property, but must insist that he must be either "off or on" without further delay. I trust you will make no other agreement for delay without my consent, as you are aware the delays in payment heretofore granted have been against my judgment of what were sound business transactions. You are at liberty to show this letter to Mr. McConkey. “'Yours, very truly,
Edwin H. Webster.' “My recollection is that Mr. Humphrey handed me the envelope containing the letter, and said, 'Here is a copy of a letter which I received from Col. Webster.' He said nothing more. He made no comments on it. I never heard it alluded to since. This was about two months before the deed was prepared by defendant. I saw Mr. Webster several times after that, possibly twice. I saw him in the latter part of February, 1891. He was returning from Baltimore. He had been down, he told me, to see Mr. Hill, a gentleman, of Baltimore, that I had had up there to look at the property some days previous. Mr. Webster told me he had missed seeing Mr. Hill. I told him I thought Mr. Hill was interested in the slate business, but he wished to satisfy himself about the profits of the business for the preceding five years, and that he had seen Mr. Humphrey, and the information he got from Mr. Humphrey was not satisfactory. The colonel said he thought he could make it clear to Mr. Hill that the company had made money, and that he would try to see him afterwards and have an interview with nim on the subject. Q. Did he say anything about hurry then on your part? A. No, sir; not a word. Q. He knew Mr. Hill had gone up with you to look at the property with a view to going