Opinion of the Court.

afterwards purchase. That agreement was undoubtedly the basis of the settlement made in January, 1877; but it cannot be invoked to control the terms of that settlement. The agreement amounted to this, that the respective interests of the parties in the stock of the company should be joint and equal, Davison paying the amount necessary to equalize the difference of costs between them. It appears, from the evidence, that the stock held by the two would control the management of the company; and the object of the agreement, stated shortly, was that they should stand together and be equally interested; Davison being at that time president of the company, and Davis the largest stockholder. Up to January, 1877, Davison had never paid the difference in the cost of the stock. The parties then came to the settlement referred to. Each still held his own individual shares as at first, and as purchased afterwards, no transfers having been made. They now concluded, instead of holding the stock in common, to make an equal division of their aggregate shares ; and to do this, Davis must transfer to Davison 379 shares, and, according to the terms of the original agreement, the latter must pay therefor the sum of $6521.36. In making this change in their proposed relations, the parties treated the transfer of the 379 shares as a sale, the terms of which are specified in the receipt of January 29th, 1877. Those terms are clear and unmistakable. It is expressly declared that the note was given for the purchase of 3794 shares of the stock of the Louisville City Railway Company, to be delivered to Davison upon the payment of his note. A mere receipt is subject to explanation; but an agreement, or contract, in a receipt is as conclusive as in any other paper executed between the parties. Therefore, although the object of the original agreement was, or may have been, a joint and equal ownership of stock, with right of purchase by the survivor, in case of death, yet it is apparent that this plan was abandoned, at the time of the settlement, for that of an equal division of the stock of both, to be held in severalty only. In other words, instead of the old contract, which had never been fully carried into effect, the parties entered into a new

Opinion of the Court.

contract based upon the principal feature of the old, that Davis should sell to Davison a sufficient amount of stock to make their holdings equal, but to be held in severalty, free from any conditions, and with liberty on the part of each to dispose of his stock as he should see fit; the price being fixed in accordance with the terms prescribed in the original agree

ment.

That this was the real nature of the transaction which took place in January, 1877, is apparent from the circumstances, and from the subsequent conduct of the parties. Davison, being in embarrassed circumstances, did not retain his stock, but had parted with it all as early as the spring of 1878, thus entirely ignoring the objects and purposes of the agreement of 1873. The answer of the defendant contains the following statement, to wit: "The respondent further says that said agreements were entered into by him in the belief and with the assumption that said Davison was the holder or entitled to hold about eight hundred shares, as represented by him, and respondent does not know how much of said stock said Davison held or was entitled to hold, but he never came into possession or control of about eight hundred shares or near that amount, and as early as the spring of 1878 ceased to be a stockholder; that he then turned over to the company whatever stock he held in part payment of his indebtedness to the company, and the intent and purpose of the agreement between said Davison and respondent wholly ceased and failed." This averment is substantially proved by the testimony of both parties, Davison and Davis. The former continued president of the railway company until February, 1878, but was not reëlected after that time. He had become indebted to the company, which had run down financially, and, as before said, parted with all his stock. It is plain, therefore, that the main purpose of the original agreement had failed and had been abandoned. The only thing we have to guide us, as to what the new contract was, is the receipt of January 29, 1877, the terms of which we have already adverted to. From those terms it is clear that the sale was not to be completed until the payment of Davison's note.

Statement of the Case.

The language is, "said note is given me for the purchase of 379 shares of stock now held by me and to be delivered, upon payment of his note, to said Davison." That such language amounts to conditional sale, or to an agreement for a sale on performance of the condition, see Benjamin on Sales, Book II, Chap. III, Rule III, (p. 252, second ed.,) and the cases there collected.

If this is a correct view of the case, it is plain that the only equitable remedy applicable to it is a bill for relief from the condition, or for specific performance. Both of these remedies, as we have seen, have been lost by the laches of the complainant.

The decree of the Circuit Court is affirmed.

WEIR v. MORDEN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 182. Argued February 13, 1888.- Decided March 19, 1888.

The second claim in reissued letters-patent No. 8914, dated September 30, 1879, to Frederick W. Weir, for an improvement in railroad frogs, (the original patent being No. 215,548, dated May 20, 1879,) whether construed by itself, or with reference to the state of the art at the time of the alleged invention, is a claim for a combination of parts, viz. (1) two centre rails B B' joined to form the V-shaped point; (2) the outside diverging or wing rails; (3) the channel irons of a U shape uniting the centre rails together, and also to the outside or wing rails, so that the whole shall constitute a frog with the characteristics imparted by the features of this combination: and no invention was required to divide the U iron, shown in patent No. 173,804 issued to William J. Morden, February 22, 1876, into two, so as to connect the centre rails with the outer rail.

THIS was a bill in equity to restrain the alleged infringement of reissued letters-patent No. 8914, dated September 30, 1879, for an improvement in railroad frogs, the original patent, No. 215,548, dated May 20, 1879, having been issued on an

Statement of the Case.

application filed February 4, 1879, to Frederick C. Weir, the complainant. In his specification the patentee described the invention generally as follows:

"My invention relates to the class of frogs made by the bending of the overlapping ends of the rails themselves, and the junction of the same with the central rail constituting the point by rivets or bolts through separating pieces; and my invention consists, first, in such a formation and connection of the two rails which make up the angular point as that one of the rails extends unbroken and uncut directly across the path of the other, and in itself makes a solid end to the point with a full-width flange, which is overlapped by the flange of the other rail, and thus a flange of double thickness is afforded at a point where strength is particularly needed, and the cutting away of the flanges (as is the usual custom) is avoided entirely; second, in an improved manner of connecting the two rails of the point together and to channel-iron pieces, to which the outer rails are connected.

"One of the objects of this invention is to furnish a firm lateral support upon each side of the V-shaped rails by means of channel irons, which at the same time unite and hold the centre rails forming the V to the wing rails firmly, uniting and holding all the parts in their proper relative position."

The drawings accompanying the specification were as follows: