The New York herald., 1878-11-15
MILLIONS AT STAKE.


ING OUT OF THE SALE OF THE PACIFIC RAIL-
ROAD OF AussoURr-ARGUMENT ON DEMURRER
TO THE CoMPLAINT-JuDGE spEIR RESERVES
HIS DECISION.
Peter Marie. Frank A. Otis, George Fearing N. A..
Cowdrey Robert l.. Cutting. Jr., and Jacob Cromwell
have commenced suit in the Superior Court to re-
from Cornelius K. Garrison and John II. Denny
the round sum OF $s,00o.oO0 The suit grows out of
the circumstances attending the sale of the Pacific
Railroad of Missouri.
THE COMPLAINT.
In their complaint, made by Messrs. Trenain and
Tyler their attorneys the plaintiffs aegc that they
were holders either in their right or in trust for
others. with full power of disposition. Of $4,000
shares Of the stock OF Pacific Missouri. amount
ing in the aggregate to $36O0.0O0. rhe defendant
Garrison at the same time held a majority of the
bonds, amounting to s2,2oo,ooo ont of issue Of
s4,0o0.00O Of bonds known as third mortgage bonds
Such bonds Of doubtful validity mortgage
security. valid obligation against the road it
being claimed by the stockholders that said bonds
collusve and fraudulent and that the mortgage
given to secure the payment of the
authorized the stockholders never having consented
thereto required by the laws of Missouri and they
got up frauduently by the then directors of the
road Mr.. Garrison claimed, the complainant
tinucs, that there then past due two semiannua
coupons for interest upon the bonds. and was So
lictous to get the bonds adjudicated valid.
coLLusIvE SUIT.
For that purpose collusive suit in the interest Of
Garrison and those associated with him had been
commenced in November. 1875 by George L. Ketchum
to foreclose the mortgage in which Garrison ad-
of the plaintiffs filed petition to be made par
ties defendant on their behalf and that Of all
other stockholders After describing the road its ex-
tent and earnings. the complainant further proceeds
to allege that in March, 1876 Mr.. Garrison in order
to get rid Of plaintiffs opposition to the foreclosure
jointly with his codefendant Mr. Danny entered into
agreement With plaintiffs that in the event of sale
Of tho road under foreclosure. and he (Garrson)
should become the purchaser thereof he would con.
vey the road If at any time within six months from
the date OF such purchase plaintiffs should organize
successor company under the laws OF Missouri, and
such company pay to him all money, with interest,
from the date Of payment which he might have ex-
pended in procuring making good the title to said
to the date of such purchase in the and running
Of the road over and above the income Such con-
veyance would be made to this company, and it
would thereupon issue thirty years bonds for
S4, 500 000 such bonds to be secured by nge
the franchises Of the road Of which $2,431 900 were
to be delivered to him those he represented in ex-
change for old bonds and the remainder to be ex-
changed for other old third mortgage bonds, or be
sold on available terms. This agreement, plaintiffs
claim. WAS made on the representations that Garr-
son was able to buy in said road, and they with
drew their opposition to the sale: At the
tion of which he paid In third mortgage bonds the
remainder being secured by Mr.. Garrison Mr. Charles
Choatean and D. A. Mangam Garrison, il is alleged
furnished most OF the means for the purchase and
Baker received $500 for his services. Baker then
as further alleged. organized the Missouri Pacific
Railroad Company and 1fr Garrison was elected pres
dent. I>conclusion. plaintiffs acge that Mr.. Ciarr-
son has failed to carry out his contract to exchange
the bonds Of the company for the old bonds held
by the plaintiff, and hence their demand to recover
$3,6 900, the valuc Of such bonds held by them.
DEMURRING TO THE COMPLAINT.
To this complaint Mr.. Garrison through his coun-
sci, Mr.. Edward L. Andrews interposed demurrer
the grounds;-l That it does not state facts suf-
ent to constitute cause Of action against defend
ant; 2) that it does not appear from the complaint
that the plaintiffs either OF them. have the legal
capacity to the defendant nssmuch there is no
account in said complaint showing whether plaintiffs
in their own right in trust for Others and no
authority Is shown for suing in trust for Others and
no specific interest in the matters complained Of is
shown to exist in the plaintiffs either Of them,
authority capacity this defendant either for
misjoinsier Of parties plaintiff, inasmuch as it
does not la appear from said complaint that
therein. and said complainant further fails to
show any state of facts such as to authorize the
other plaintiffs named n the complaint ~ that there
is defect of parties plaintiff in the case inasiuuch
il said complaint Is 10 bo construed ayerring
that persons other than the plaintiffs and the defend
ant Denny are interested, or benefciarics in the
premises and agreements sued on. and If any joint
right of action is shown averred in said plaint
then such persons other than the plaintiffs are neces
sary parties plaintiff in this suit, it not appearing
that plaintiffs have any right to in their behalf or
to represent them in this suit.
ARGUMENT BEFORE JUDGE spEIR.
This demurrer came up for argument yesterday be-
fore Judge Speir, holding Special Term Of the Supe-
rior Court, and argued at great length, Messrs.
Henry L. Clinton and Edward l.. Andrews appearing
in favor of the defendants and William A. Beach and
Mr.. Tyler in opposition. Mr.. Clinton who opened
the argument contcnded that the complaint did not
show any contract, and, consequently, did not show
any breach OF contract He also contented that the
plaintiffs in the complaint do not show any perform
any offer TO perform, any for not
performing the conditions upon which 1t Is pretended
the delivery Of the stock to the defendant was made
He also maintained that in the complaint no contract
and breach had been disclosed; that the plaintiffs
had not shown that they had any right to issue that
there also msjoinder Of the parties plaintiffs
that there other parties in interest; that the
complaint vague, uncertain and fatally defective
and that tho demurrer should be sustained.
Mr.. William A. Beach, on tho contrary. contended
that full and complete cause Of action set forth
in the complaint he discussed the at consider
able length. The argument occupied nearly the
whole day. AT it's close the Judge took the papers
and reserved his decision.