Page:Federal Reporter, 1st Series, Volume 10.djvu/437

 TLAGG V. MANHATTAN EY. 00. 435 �braced in and created by the terms of said agreement and leases, as modified, and the terms and provisions of thia agreement." By a supplemental agreement of the same date, executed by the three par- ties, it was further agreed that the Manhattan ■will pay to the New York all sums due and owing to it under its lease to the Manhattan, up to and including October 1, 1881, and that the Manhattan will pay the New York the sum of 6 per cent, on its present capital stock "in the manner and at the times stated in the foregoing agreement, and the payment thereof shall be cumulative, notwithstanding any provision in the eighth subdivision of the third clause thereof." �The bill in this suit is brought by the plaintiffs in their own behalf, andinbehalf of allothers, shareholders in the Metropolitan, similarly situated with the plaintiff, -who may come in and contribute to the expenses of the action, and consent to be bound by the decree herein. It alleges that immediately after the execution of the tripartite agree- ment and the leases, and the delivery of its road to the Manhattan, the Metropolitan, in order to secure to its shareholders the benefit of article 2 of the lease, and in order to enhance the value of the shares of said stock, caused to be printed on Ihe stock certificates of the Metropolitan the following memorandum : "The Manhattan Eailway Company, for value received, bas agreed to pay to the Metropolitan Elevated Eailway Company an amount equal to 10 per cent, per annum on the capital stock of the latter company, — that is to say, on $6,500,000, payable quarterly, commencing January 1, 1880;" that the capital stock of the Metropolitan then was, and still is, $0,500,- 000, divided into 65,000 shares of the par value of $100 each; that ali the certificates of said shares issued by the company after the execution and delivery of the tripartite agreement and leases were issued with said memorandum printed thereon ; that the said shares were largely dealt in in the city of New York, and were bought and sold as stock, upon which an annual dividend of 10 percent, was guarantied by the. Manhattan, and as, upon the sale and transfer, from time to time, of shares of said stock, certificates were surrendered for cancellation and reissue, the Metropolitan issued new certificates containing the same memorandum, and no shares were dealt in after January, 1880,. which did not eontain said memorandum; that during the year 1880 the Manhattan paid to the Metropolitan quarterly, and the holders of shares of the Metropolitan received, the said dividends se- "guarantied," and said dividends were also paid in January and April, 1881, but thereafter the Manhattan made default in the pay- ment of the dividend due July 1, 1881, and bas hitherto continued ��� �