Subsequently, upon consideration of the petition for rehearing in this cause, the following additional opinion was filed:
Per Curiam:In the petition for a rehearing in this case it is said the main item recovered by the decree is §5709.37, to “amount from coal mines.” The main error in the findings of the Appellate and Supreme Courts is, that the fact was overlooked that this amount had been paid in the bonds of the Crown Coal and Tow Company.
The appellant agreed to deliver to appellee, Thomas, bonds of the company in payment of §5000 due him for property turned over to the company, but, as we understand the record, he never obtained the bonds. It appears from the record that at a meeting of the stockholders of the appellant company on March 12, 1894, the following proceedings were had: “The dispute as to the amount at which the Crown Coal Company’s property and good will was taken by this company, was this day settled by agreement of all the stockholders present, and said figure was fixed at $18,000, of March 1, 1893, the same not to include the book accounts belonging to the Crown Coal Company.” A resolution was passed to issue $200,000 as bonds, and secure them by mortg'age to the Union Trust Company, as trustee. The following resolution was also adopted: •
“Whereas, the capital of this company has been contributed in unequal proportions by various stockholders, the distribution of stock having been made without reference to the stock contributed; and whereas, this company was originally projected and organized by the parties interested in a certain railroad then known as the Belleville and St. Louis railroad, and now known as the Belleville City railway, as an adjunct to said railroad; and whereas, it was originally contemplated, understood and agreed by the parties interested in the formation and organization of this company that all the amounts advanced by any of the stockholders of this company should be re-paid out of the proceeds of bonds to be issued by the said railroad company and guaranteed in part by this company, and that the stock of this company should be subject to the indebtedness created by said bonds; and whereas, various of the stockholders of this company, on the faith of the said agreement and understanding, have advanced large sums of money to this company and have conveyed to it property of great value; and whereas, a doubt has arisen as to the legality of such proposed endorsement or guarantee by this company of the bonds of the said railroad company or the application of the bonds of the said railroad company to the purposes of this company, and said plan has been in consequence abandoned; and whereas, it is the desire of this company that' the true intent and meaning of said agreement and understanding be carried out, and that the persons conveying their money and property to this company on the faith thereof be protected; therefore it is
‘ ‘Resolved, That the president of this company deliver to each stockholder who has contributed either money or property to the capital stock of this company, bonds of this company at par, to an amount equal to said contribution, with interest from the date thereof to this date.”
Immediately after the adjournment of the stockholders ’ meeting a meeting of the directors was held, at which the president and secretary were directed to cause bonds and mortgagee to be issued, as directed by the stockholders. At a meeting of the directors held March 10 the following resolution was adopted:
“Resolved, That the Union Trust Company of St. Louis, trustee in the mortgage given by this company to secure its bonds, be authorized and requested to make deliveries of said bonds as follows, to-wit: To Sam’l H. Leathe, $118,500; to Bart S. Adams, $10,000; to John T. Taylor, $4000; to Edward L. Thomas, $5000; and of the balance of said bond to S. H. Leathe, treasurer, $62,500.”
Under these proceedings bonds were delivered to Leathe, Adams and Taylor, but no bonds ever passed into the hands of Thomas. It is true, Thomas, in his cross-examination, was made to say that he received the bonds, but such was not the case. He no doubt intended to be understood as saying that the bonds were set apart for him or ordered to be delivered to him. What counsel for the appellant understands to have been a delivery of the bonds to Thomas is fully explained in his argument on page 20 of his brief, as follows: “Thus we see from his own testimony he did get the bonds,—that is to say, they were delivered to him by the trustee. That they did not reach his hands is not the company’s fault. His testimony above quoted shows that they were arrested in the hands of the trustee by an attachment proceeding by Mr. Leathe,-—presumably a creditor of his. But as far as the company was concerned the delivery was complete. Its trustee was ordered to deliver them to Mr. Thomas, and did deliver them, or hold them subject to the order of the court in the attachment proceeding.”
It thus appears that after the bonds which Thomas was to receive had been made out and were ready for delivery, Mr. Leathe, who was president of the appellant corporation and who held the controlling stock in the company, commenced in the city of St. Louis an attachment proceeding against Thomas and attached the bonds, and thus prevented delivery. The fact that a resolution had been passed by the appellant directing a delivery of the bonds did not constitute a delivery, nor did the act of the president of the corporation attaching the bonds before they passed out of the hands of the trustee constitute a delivery. Whether Lea-the was to blame for stopping the bonds, or whether Thomas was in fault, does not appear nor is it material. The fact remains that the bonds did not pass from appellant to Thomas. Indeed, it is apparent from a subsequent contract made between the appellant and Thomas that the appellant did not regard the bonds as having been delivered to Thomas. That contract was as follows:
“Whereas, Edward L. Thomas has certain claims against the Crown Coal and Tow Company, based upon what he claims to be his portion of the purchase price of certain coal pits which were turned over to said company by him and his associates; and whereas, a partial settlement of the said claims has heretofore been made and certain bonds of said company were set aside to the said Edward L. Thomas as in satisfaction or settlement of a portion of said claims in consideration of the surrender of whatever interest in said bonds the said Edward L. Thomas may have: It is agreed by the said company that any former arrangement or settlement made between the parties, namely, said Thomas and said company, growing out of the said transactions, shall be considered abrogated and annulled and as though it had never been made, and the said Edward L. Thomas shall be relegated to any actions or suits that he may be advised may be proper for the purpose of adjusting and settling the differences between him and the said company, growing out of said purchase money or other moneys which he may claim to be due him on account of the transactions hereinbefore mentioned.
“Dated this 8th day of November, A. D. 1895.
Crown Coal and Tow Co.
By S. H. Leathe, President.
“We ratify the above this November 8th, 1895.
Sam’l Leathe, Director.
John T. Taylor, Director.
Bart S. Adams, Director.
Fred B. Merrills.”
In this agreement between appellant and Thomas it is not intimated that Thomas had received the bonds, but it is stated in a mild form that the bonds were set aside for Thomas. The agreement then provides that in consideration of the surrender of whatever interest Thomas has in the bonds the former arrangement made between the company and Thomas, under which he was to receive bonds in payment for his interest in the property turned over to the company, should be abrogated, and Thomas was left free to institute proceedings to recover of the company for the property he had turned over to it. The only fair inference that can be drawn from this contract is, that the bonds originally designed for Thomas passed back into the hands of the appellant corporation.
In view of the foregoing, the position assumed in the petition for rehearing, that Thomas was paid in bonds for the property he turned over to appellant, is not borne out by the facts in the record, and the petition for rehearing will be denied,
Petition denied.