The Bennington banner. [volume] (Bennington, Vt.) 1858-1894, 1888-10-25

make any accounting thereof as required by Nh
| aforesaid contract and that said moneys q
some portion thereof should be applied by sal
Ferry upon the said notes OF your orator so give
to said Ferry as aforesaid, or that the said az
countings provided for in said contract, and fu
and true accounting of all matters between III
said Ferry and said Tyre and Spring Works Com
/ pany and said Car Wheel Company and your or
atOr should be had prior to and as condition o
the validity or enforcement Of said notes OF you
| orator so delivered to said Ferry or that tn
said contract should be annulled and set aside u
the election OF your orator, for the nonfulhllmen
| and nOnperfOrmauce thereof by the said Ferrl
and the said Tyre and Sping Works as required
by the terms thereof
That on or about the 10th day of April A. D
1885, the orator sold to said Chicago Tyre ant
Spring Works Company (said T. NJ. Atkinson
then being the President and General Manager
and said Ferry the Secretary and Treasurer anG
the principal stockholder thereof, they two hold
ing substantially all of the stock OF said Spring
Works Company six hundred car wheels at and
for the purchase price of forty dollars per wheel
and said Chicago Tyre and Spring Works Com
pany than accepted said wheels, That said sale
and acceptance were in writing, signed by your
orator and said Chicago Tyre aud Spring Works
by said +. Nj. Atkinson as its President and
were in words and figures substantially as fol
lows
"In consideration Of one dollar and other good
hnu ihluADIe CONSIDERATION 10 me IN manu- paul. 1
have this day sold and transferred to the Chicago
Tyre and Spring Works six hundred Mtimore
elastic steel car wheels. 30 and SO inch in outside
diameter, 544 of said wheels are now finished and
the balance in process Of manufacture at my
shops in Arlington, Vermont The wheels to be
delivered by me on car at Arlington free of
charge" Arlington, Vt, April 10, 1886"
&c. W. MILTIMORE."
"Thc pure ase price Of said wheels being as
agreed upon by us this day forty dollars per
wheel, and said wheels are hereby accepted"
"CHIcAGo TYRE SPRING Works"
"By +. M ATKISsoy, President"
&c. W. MILTIMoRB."
That at the tins OF said sale and in considera.
tlOn thereof, il was agreed by and between said
Ferry and Chicago Tyre and Spring Works Com
pany, and your orator, an inducement to your
orator to sell said wheels to said Chica
60 Tyre and Stirring Works COMPANY,
car wheels should be applied TO pay and be a
payment to the amount Of said sale upon said
notes and mortgages given to said Ferry, which
said agreement on the part Of said Ferry was In
writing and signed by him as follows and under
the following circumstances while the negotia-
tons resulting in the sale and acceptance OF said
car wheels, as above stated, were being carried
on between your orator and said Chicago Tyre
and Spring Works, your orator telegraphed under
his own hand to said Ferry as follows
"ARLISGToN, Vt, April =, 1886"
ITO c. H. FERRY, "a Washington St., Chicago, ILL., 7"
"Will you be responsible for six hundred Mllt
more wheels shipped to the Chicago Tyre and
Springs Co. Milwaukee, proceeds TO liquidaie
Arlington mortgage AS per price arranged by At
kinsOn. Cars here ready TO load. Answer"
&c. W. MfLTIHoRE."
Which said telegram was duly received by said
Ferry that upon receipt ofwhiCh the sand Ferry
knowing that said negotiations were pending, re
piled by telegram signed by him as follows
"April 9th, 1886, CHICAGO, ILL.,"
ITO e. W. MILTIMoRE."
Certainly / will guarantee that proceeds six
hundred wheels shipped as directed and for prices
arranged by Atkinson shall be applied toward
''liquidLtiug Arlington mortgage. Noforma order
yet received though understand trade is def.
''nitely closed. Think you better await formal or
der before shipment for saftSy, Letter today.
&c. H. FERRY"
Aud your orator says that the words "Six Hun
dred Miltimore Wheels" and six Hundred
Wheels used In the said telegram Of your orator
and in tho said telegram Of said Ferry respect
IVely refer to the car wheels and to the same car
wheels that wee sold to and accepted BY said
Chicago Tyre and Spring Works as aforesaid, and
were so understood by said Ferry and by your
orator
That said telegram Of said Ferry was received
by your orator prior To said 10th day Of April,
1886, and before said sale and acceptance were
and said writings made, but pend
ing the negotiations, and the same was mater
al inducoment to your orator In making said sale
and without the same the said sale would n0t
nave been entered into by him.
That the said contract first herein above men,
,ioned before providing that said notes and mort.
cages should be executed and delivered by your
orator to said Ferry, provided that the said nc
counting in said contract mentioned and herein
above mentioned should be had and taken, and
hat the balance found upon such accounting
should be paid, liqudated and discharged in
whole or in pat by said notes OF your orator
md your orator charges that before said notes or
mortgages can be justly enforced or have any
Ialidity, such accounting must be first had and
iken.
lnat your orator is unable to state, until such
shall be had, what the precise state OF
he accounts as between your Oraror and said
Ferry Is but your orator upon Information and
,elief shows and charges the fact TO be that upon
uCh accounting and after the proper credits are
made ON said notes, the aforesaid fOnr notes and
Mortgages will be found fully paid and satisfied,
md If not paid In full then, that only small bal
Ince will be found upon such accountings and
lfteE the proper credits shall be made upon said
notes to be owing to said Ferry or any one else
IN said notes.
Upon information and belief that William C.
D. Grannis, as trustee for the Union National
Bank, and the the Union National Bank OF Chica-
90 aforesaid, claims to hold the said notes and
mortgages given by this orator to the said Chas.
II. Ferry, as hereinbeiore stated, as collateral
'e1urlty for the payment OF spme, gotes Of said
Chicago Tyre and Spring Work., TO said bank,
ndorsed by said Ferry, or clam that the said
irannis holds the same, as trustee for said bank,
~ collateral security for some pretended indebt-
sdness Of said Ferry, and Of said Chicago Tyre
and Spring Works Company to said bank and
that said Ferry pretends that said Grannis, as
trustee as aforesaid, and said bank one Of them
nave u right to enforce said notes and mortgages
rs against your orator as the assignee OF said
Ferry and said bank and said Grannts, as such
trustee acting, as your orator is informed and be
ieyes and therefore AYERS, under the direction
and at the nstigation OF said Ferry, have brought
A foreclosure on said mortgage upon said real es
tate, and two suits at law on said notes. and com
mRnrpl .padinrs n have said DprSOnal
srty sold by officer under and by virtue of said
,hattel mortgage as more fully and infinitely
hereinafter set forth.
That IL said Grannis or said bank have any val.
d claim upon said notes and mortgages, which
orator denies, the same is, and is claimed by said
Ferry and Grannis and said bank TO be held by
aid bank or by said Grannis in trust for said
bank and not otherwise, rs collateral security
Jnly for the payment Of some note or notes OF
laid Chicago Tyre and Spring Works Company,
md that said note or notes of said Tyre and
spring Works ~ collateral security for which
'aid notes of your orator are claimed to be so
leld, were made and given by said Tyre and
spring Works, and bear date, long after the said
our notes OF your orator aforesaid given to said
Ferry, by the terms thereof became due and ma
ured and after the 10th day Of April, A. ID. 1856,
md that said bank and said Grannis took and held
iaid notes Of your orator, and acquired such
lights hereunder, as they have, IL any, charged
with notice Of and subject to the equities and de-
ences fyOur orator, and Of all the facts and cir
in this bill set forth and alleged upon
and belief
That said bank, at the time the notes and mort
cages made by your orator, were assigned to It
'r TO said Grannis as trustee for said bank, AS
,urity or pretended security for said notes Ofsaid
Ferry and said Tyre and Spring Works Company.
leld by said bank, held and possessed and still
holds and possesses other collateral security for
he payment Of said notes OF said Ferry, and said
Tyre and Spring Works OF much greater value.
hen the amount OF said Ferry's and said Tyre
md Spring Works notes held by said bank and
IF much greater value than the amount OF
my Indebtedness Of said Ferry and said Tyre aud
Spring Works to said bank.
That said bank. at the time Of the pretended
aking by 1t or by said Granns, trustee for said
bank, of said notes and mortgages given by your
orator, and thence hitherto has held and still
holds Us collateral security for the payment OF
'Ad alleged Indebtedness OF said Chicago Tyre
md Spring Works to said bank, TO secure which
iaid bank pretends to have taken and now to
lold said notes and mortgages OF your orator,
Rrge amount OF blooms and ingots of steel of
great value and also large amount Of bonds and
itocks and other securities Of great value the pre-
,ise amount and description and value Of winch
other security is TO your orator unknown, but
which will, from the answer of the defendants
hereto and by the evidence herein and upon the
rearing hereof be made to appear but your ora
.Or upon information and belief states that said
'ther security 10 of great value, and Of value ex-
seeding said alleged Indebtedness ofsaid Chicago
Tyre and Spring Works to said bank.
That said other security Is capable Of prompt
into money, and the right and power
II said bank to sell and dispose Of the same TO
pay said indebtedness is unrestricted and sub
ect 10 no equities as against said Spring Works
DR. said bank, and the rights or security and
equities of no outside or third parties will be
Affected or impaired by the enforcement and sale
,f said other securities
That heretofore on or about the - Gay OF
January. A. d. 1881, the said Union National
Bank Of Chicago duly recovered Judgment az ainSt
he said Chicago Tyre and Spring Works in the
superior Court OF Cook County, In the State OF
illinois, which Is court Of record of general
Jurisdiction, for the full amount of the said al.
eyed Indebtedness of the said Chicago Tyre and
sprinR Works TO said bank, 70 secure which sAid