Page:Federal Reporter, 1st Series, Volume 4.djvu/81

 0. & li. C. E. CO. V. B. <fc II. B. COBP. 67 �not less than one-fourth, and asks for an account hj whîcii the precise proportion may be ascertained, and for payment of the amount found to be due, and other relief. The case was argued upon the bill and the defendant 's demurrer. The theory of the bill is that the companies composing the party of the third part are absolutely bound to pay the com- plainant the sums advanced. The demurrer assumes that the payments are to be made only eut of gross receipts from the Ogdensburg business. �Upon the most careful reading of the contract, we are of opinion that the parties of the third part have not bound themselves to pay this advance at ail events. It may be diffi- oult to see why the complainant should have made such a contract; but we must take it as it is. It seems to us that the parties of the third part were willing to rely upon the security which would be furnished by buying up the bonds, stock, and debts of the transporlation company, and that the complainant trusted to thàt and the pledge of the gross eam- ings of the business. The agreement for Becuring the com- plainant seems to us to be sumraed up in the concluding part of article 7, that "if said sinking fund shall prove insufficient, the parties of the third part shall make up the defieiency out of gross receipts from said business, brought by steamers as aforesaid." �Upon this construction of the contract it becomes necessary that the bill should allege that there were gross receipts up to the time when the business was stopped, beyond what was paid to the siaking fund Besides this, the bill should either make the trustees, Smith and Stark, and the trustees of the sinking fund, parties, or allege (wbat we suppose is the truth) that they have nothing of value in their hands applicable to the payment of the complainant's advances. �If the other railroad companies, who, with the defendant, are parties of the third part, were citizens of this district, or found therein, it would be proper that they should be parties, in order that the total, account of gross receipts should be taken in one suit. If they are not within the jurisdiction the suit will not be defeated, because the undertaking of each. ����