CONCURRING- Opinion.
Manning J.The stumbling block in the way of the defendant is his letter to McGuire of Feb. 11, 1880. If that is susceptible of explanation conformably to his defence, there will be no other difficulty in maintaining it, and the key to that explanation is the circumstances surrounding the parties at that time.
The business had reached a crisis. The prolonged negotiations had resulted in no definite arrangement, but an arrangement must be made, or all was lost. Time pressed. Further delay was ruin. Plan after plan had been devised, matured,'and when on the eve of adoxrtion and execution had been shivered into atoms by hindrances which were not foreseen, or if foreseen, could not be avoided or removed. The situation changed every day as rapidly as the shifting views of a kaleidoscope. Stubbs was in the thick of the fight, managing, arranging, negotiating, marshalling all his resources, and directing them. The struggle had been going on several weeks. The tension of mind consequent upon it was extreme. Anxiety devoured him. Apprehension of failure weighed upon him. Every thought, faculty, was absorbed by the impending danger, and was employed in finding means of escape. He was in a maelstrom which threatened to ingulf large interests.
In this perilous condition he wrote the letter — “if Gordon does not come, get him to consent to take $40,000 cash by 5th March which I will secure him abundantly, or $10,000 cash and balance not to exceed $35,000 within ninety days after 1st March. Get the best from him and let it be positive and in writing.”
The effort was to get better terms than the optional contract. It is not inconsistent with the existence of that contract. When the optional contract was made, Stubbs had in view the advance settlement, and was trying to effect it. It had failed to all appearance, and he instantly *637devised another scheme. 'The offer in the letter was a part of that scheme. But that was not an abandonment of the optional contract, much less does it prove that such contract never existed.
Besides, there is no evading the issue. That contract was made, or both Stubbs and Waddell have committed deliberate perjury. They swear to its existence point blank. Character, antecedents, must weigh. But put those considerations aside. What are the probabilities?
Gordon had looked upon his railroad interests as secure beyond peradventure. He had regarded the suit in the TJ. S. Court with complacent indifference. His companions in the venture, thoroughly well informed as he believed, laughed to scorn the attempt to disturb them. Then came the decree from Washington like an avalanche from the mountain-top, like a clap of thunder from out a clear sky. Alarm and dismay succeeded the sense of security. There was a complete revulsion of feeling. Instead of realizing- from -his investment, the loss of the whole of it stared him in the face. The judgment for betterments put him in heart. But if the other had failed, why not that? And very soon it looked certain it would fail. On one contingency alone was there any hope. He was weary of the strife. He longed for something sure. Absolute assurance was not to be had. An unconditional promise to give him a certain sum was out of the question. Nobody would have been wild enough. to make such an offer. A contingent promise to pay was the utmost he could hope. He found Stubbs devising a scheme to save himself and his comrades along with him. The success of that scheme depended upon the assent of all. If he could find any one willing to promise him $45,000 payable on that contingency, and before 1st March, it opened a chance of escape. Stubbs was the only one who would be apt to entertain the proposition. It fitted in with his scheme. He offered it to him. Stubbs took the option of accepting it. The whole affair is probable and natural.
The scheme of advance settlement that had fallen through suddenly became practicable by the assent of Judge Ludeling, hitherto deemed impossible of attainment. That scheme was effected. Stubbs availed himself of the optional contract, and complied with it.
The decree is based on that. I concur in it.