Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-04-14
Concluded, in Hubs
Great Litigation.
Sum Of Ten Million Dollars involved
in Transaction.
The Decision Of Justice Barker Has
Been Reserved.

rlOus boston gas companies Of SIC, 600,
OO0 snail be restrained and declared null
ana Vold as asked for by Receives
George w. Pepper of the Bay State Ga.
co. OF Delaware, now rests with Justic,
Barker OF the supreme judicial court O
massachusetts. Today were concluded
the arguments of counsel, includinf
Sherman L. Whipple, attorney for the
petitioner, Augustus Hemenway, rep.
resenting Mr.. Rogers of New York, and
counsel for kidder. Peabody & Co., OF
Boston, both defendants in the suit
Previously over four weeks had been
passed in hearing the evidence in the
case. Judge Barker announced. to-
day, that he did not know when he
would announce his finding.
Sherman L. Whipple resumed the
argument for the petitioners in the Bay
State Gas case, today. Taking I'D his
argument where he left off, yesterday.
he continued a discussion of Henry n
Rogers position with reference to the
Boston gas situation.
Mr.. Whipple said:
THE equity in the stock of the Bos
to companies has always been consid-
cred by the Delaware company and its
security holders as of great value. To
preserve this equity the Delaware COM
pany paid to the Mercantile Trust Co.,
out of it's own assets between 1894 and
January. 1902. more than $1,150,O0O for
payment of the sinking fund and the
deficiency in bond interest. These pay
mentS have been made in order to pre-
serve the equity of the Delaware Co. and
add value to it. The conduct Of the de-
PENDANTS throughout in the foreclos-
ure proceedings shows lack of ap-
probation or wilful disregard of their
duties as trustees. The specific grounds
upon which the petitioner seeks to set
aside the sale may be thus stated.
First, because Rogers, as trustee of
the Delaware Co., with knowledge and
at the instigation of Kidder, Peabody
&, Co., acted in bad faith toward the
Delaware Co.
Second, because the Mercantile
Trust Co. with the knowledge of Kid
der, Peabody & Co., the purchaser, in
instituting and conducting the foreclos-
ure did not act in good faith towards its
equity officers.
Third, because the foreclosure was
instigated and carried out as a result of
collusive arrangements between Kid
der. Peabody & Co., the Mercantile
Trust Co., and Henry H. Rogers, with
out a reasonable regard for the plain
tift's interests.
aside from these charges of neglect
of duty the plaintiff further claims that
the sale is invalid in law.
First, because the mortgage in the
execution of the power of sale failed to
comply strictly with the provisions of
the power in the trust agreement under
which it purported to act.
Second, because the default did not
in fact exist
Continuing in his argument, Counsel
Whipple said that Henry H. Rogers
was universally recognized by all as
absolutely and completely in control of
the Boston companies. He had shown
through sense of responsibility as
trustee interrupted only by the promo
ton of his personal and selfish inter-
eSts.
referring to the Intervention of Kid
Ter. Peabody & Co.. Mr.. Whipple said
that the technical default in the bond
interest had not existed sufficiently
long so as to become the basis of fore
'losure proceedings. The definite pur-
pose of Kidder, Peabody & Co.. Mr..
Whipple said, was to get hold of the
New England gas and coke interests.
The motive and inspiration of the con-
duct We're not benevolence.
Mr.. Whipple said that it was expo
dent for Mr.. Winsor in carrying out
his Plan to dispose of the opposition of
Messrs. Addcks and lawson. Accord
ingly it was proposed to purchase the
assent of Lawson to quiet his OPPOSE
ton. and apparently to bride Addicks
rs president of the Delaware company
to join with it's trustee in the betrayal
of the interests of it's stockholders. To
perform this ignOble services Rogers
was solicited. and he consented. Mr..
Whipple claimed.
Mr.. Whipple went on: I'VE have pre-
scented in this transaction a spectacle
of the trustee of the Delaware company
charged by his trust with the express
duty to save its interests in the BOs-
ton companies, having himself agreed
not interfere. accepting the commits
sion to corruptly approach others from
sense of duty or self-interest might
interest refer with plan to destroy
those interests. The failure to produce
Miss Harrison. who took Mr. Lawson's
telephone message, is practical con-
cession of the truth of Mr.. Lawson's
testimony. In addition to the testi-
mOny. the circumstances and proba-
bilities of conduct drive one to the con-
clusion that the buying off of Lawson's
opposition comprehended the scheme
of securing the Boston companies.
The consolidation of the Boston
companies had been the dream of pro-
motors for years. 1t had been ATTEMPT
ed by Whitney. Later. Elkins tried it.
After LawsOn's defeat of Whitney no
one had attempted it without seeking
to al!ay his opposition"
Mr.. Whipp!e said: 1T is clear that Mr.
Rogers caused the failure on the part of
the Boston companies to declare divi-
bends in June, 1902. For this failure
Charles ID. Burrage. vice president and
Mr.. Rogers representative since 1896 in
the management of the Boston companies
is Immediately responsible
I'VE submit" said Mr. Whipple. chat
evidence fairly justifies the Inference