Page:North Dakota Reports (vol. 1).pdf/501

 Braithwaite and John D. Biggert as trustees, to be held by them thereafter as such trustees for the following uses and purposes: First, that the same be managed and run in the interest of all of the parties hereto, said W. Braithwaite to act as captain, and John D. Biggert as financial agent; the said Braithwaite to receive a salary of one hundred and fifty dollars per month, and said John D. Biggert to receive a salary of one hundred dollars per month during the time she is run in the interest of the parties hereto.

"Fourth. Out of the earnings of the said steamboat the respective claims of said parties of the second part are first to be paid, and, second, the full amount of their respective portions of said $10,000 advancement is to be paid; and when said parties of the second part are fully paid, then this trust shall cease and determine, and the said steamboat shall remain wholly to the use and benefit of the said W. Braithwaite and John D. Biggert, their executors, administrators, and assigns. Signed and sealed and delivered this 4th day of February, A. D. 1880, with our hands and seals.”

The name of Joseph McC. Biggert was afterwards substituted for that of John D. Biggert in the agreement.

It appers that under this arrangement the money subscribed was paid, and the vessel bought therewith at the marshal’s sale, the title being taken in the names of plaintiff and Biggert. The vessel was being operated under the contract, when this freight was earned. The intervenors, until paid under the contract, are clearly entitled to the net earnings of this vessel, after deducting the expenses of operating her, and the necessaiy expenses of collecting the funds which are embraced within the trust created by the agreement. Plaintiff does not appear to question this, but insists that the intervention was not upon the theory of a litigation of the rights of the parties as between themselves, but merely for the purpose of-joining plaintiff in the prosecution of the action. The allegations of the intervention complaint, its prayer for relief, the procedure upon the trial, the joint verdict rendered without objection—all justify the plaintiff in assuming that such was the sole object of the intervention. There is no suggestion that plaintiff has been guilty of any