Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1905-12-29

lions, have been so universally an
swered in the affirmative both by the
decisions in our own State and by the
Supreme Court of the United States
that it is no longer a question for ar
gument or even OF doubt.
Exceptions overruled, Judgment fol-
the State.
Reed Dec 81, 1905.
Waldo County Charles W. Merrill ct
al. VS.. Elias Miliken. Rescript by
Whitehouse. j.
Nov. 20, 1897 the defendant with 1. c.
Libby. A. +. Gerald and seven others
formed a syndicate for the purpose OF
acquiring and extending certain street
railway properties in Lewiston, Bruins
agreement creating it negotiable paper
not TO exceed $350,0O0 at any one time
was to be isSud by the defendant and
two others named as trustees and To
be negotiated by !. c. Libby agreed to
rs treasurer. In pursuance OF this
agreement on the same day all the
members of the syndicate signed and
delivered to the trustees 10 notes OF
5000 each and 10 notes OF $4,000 each.
Two days later the Plaintiffs, two of
whom We're not members Of the syndi-
cate, entered into Il contract of in
deinniiy with the defendant whereby
they agreed to pay him $1,000 and thirty
shares Of stock, and 70 protect him
against loss, in consideration Of which
the plaintiifs We're TO have all profits
and income arising from the operations
Of the syndicate. In this action the
plaintiffs seek to recover on this con-
tract Of indemnity the sum Of So 800,
being one tenth part Of the $325 900
alleged 70 have been realized by the
syndicate as the profits Of the enter
prise
1t appeared in evidence ana is not
controverted that the defendant Mill
ken never attended any meeting of the
syndicate after that of November 20
when il was formed, and refused to
participate in any Of its subsequent
transactions.
1t further appears. however, that at
some time between Nov. 90. 1897 and
May :. 1893, the Bruins wick Electric
IsallrGad Co. changed its name to the
Lewiston, Brunswick & Bath Street
Railway, and on this latter date n con-
Struction contract was entered into
between the Lewiston, Brunswick &
Bath Street Railway by A. II. Shaw
President and /. c. Libby. Treasurer,
and the Lewiston. Brunswick e Bath
street Railway Syndicate, by |. c.
Libby, Trustee.
All Of the stipulations which I. c.
Libby undertook to make in behalf of
tract Of May :. 1895 Were Il radical de
parture from the obligations assumed
by Milliken in the agreement of Nov. 20
1897, signed by him. The construction
contract and the original syndicate
agreement differed toto cocle in their
scope and purposes. The original
scheme involved q maximum personal
credit OH the part of the syndicate OF
$3S5,000. According to the plaintiffs
claim the construction contract exc
cuted by Libby but repudiated by Mill
ken involved Il personal credit of the
syndicate as individuals to the extent
Of one million dollars. and by its terms
:;N CT Tho Negotiable securities We're to
n, i''.-*to' instead of the trustees
i.l' lc': IL ii.n original agreement. Milli-
Ken $40 evidently become alarmed at
the proin.ton tlInS to remove the eX-
press limitations and personal safe
guards provided by the syndicate
a agreement, and refused to consent to
such an unWarranted extension of the
liability of the members of the syndi-
cate.
Upon this state of the evidence the
plaintiffs offered at the trial the con-
struction contract of May Z, 1898, for
the purpose of showing that the syndi-
cate ultimately performed all the
things to be done under the syndicate
Il agreement and that Milliken was there
fore entitled to receive one tenth of the
profits Of the contract.
The presiding Judge ruled that the
contract was not admissible as evidence
q gainst the defendant and the plaintiffs
took exceptions to this ruling. There
was no evidence that I. c. Libby was
ever expressly authorized to execute
the construction contract in behalf of
the syndicate and he obviously had no
greater implied power than that of
other members of the syndicate. If he
had implied authority to bind his nine
associates under any circumstances, it
is plain that he had no implied power
to sign the syndicate name to a con-
Strnction contract involving important
duties ana extensive liabilities not
specified in the syndicate agreement.
and manifestly not within its scope and
purpose.
But under subsequent rulings Of the
court fun opportunity was given to the
plaintiffs to prove everything that was
in fact done by the syndicate, either
with or without the participation of
Milliken, either under the contract of
Nov 20 or the construction contract of
May I, hut no such evidence was intro
ducnd or offered.
But for the purpose Of showing the
amount of profits alleged to have ac-
crued 10 the syndicate from the COM
plcted enterprise and rs bearing upon
tine question of damages in this action,
the plaintiffs offered in evidence the
account book of 7. G. Libby. as treas
urcr to prove the disposition and sale
of the stock and bonds committed
to him as treasurer of that
syndicate. The presiding judge ruled
that the book was not adj
for that purpose and ordered