Page:North Dakota Reports (vol. 1).pdf/500

 pellant asks on this appeal is that the judgment in this respect be modified by directing the payment of the amount thereof into court subject to the further order of the court. We think appellant’s prayer should be heeded. A glance at the facts will make this apparent. The vessel in which were the goods, to recover freight for the transportation of which this action was instituted, was the steamer Eclipse, and she was engaged in that kind of business under an arrangement embodied in a written contract between the plaintiff and the intervenors. This agreement recited the facts that this steamboat was at the time it was made hopelessly involved in debt, and was about to be sold at marshal’s sale, and that certain of the parties to the agreement were creditors of the vessel. The agreement then continues:

“And the parties hereto, fearing a sacrifice, to protect their several interests, and to prevent such a sacrifice, and form a fund for building up said boat, and afterwards, if knocked down to them, to provide a working capital to manage and run said steamboat, covenant and agree as follows:

“First. That each of said parties shall contribute into a general fund the respective amounts set oppositieopposite [sic] their names: Capt. W. Braithwaite, $2,500; John D. Biggert, $2,500; Robinson, Rea & Co., $2,500; Cadman & Co., $100; Kay, McKnight & Co., $450.—which several amounts are to be paid in cash; by the respective parties, to said parties of the first part, in case said steamboat is purchased by them as herein provided, or so much thereof as may be necessary to be used for paying so much of the bid as may be necessary to be paid in cash, and the remainder to be used as working capital.

"Second. That, in addition to said cash fund, the several parties are to contribute as capital the amount of their respective claims against said steamboat, and, in case said steamboat is bought in by the parties hereto, their claims are not to be paid at once, but be receipted for by them, and afterwards paid, as hereinafter provided for.

"Third. When the said steamboat is put up at marshal’s sale, the same is to be bidden for by the several parties of the first part to such an amount as a majority in interest in said amount of $10,000 may determine, and to be put in the name of W.