If it please your honors and gentlemen of the jury: Certainly no one approaches the close of this
case with more gladness than I do. We have been through a long investigation, a heated
struggle in which bad blood at time has been aroused, and many hard and unkind things said.
We are glad it is over. And we come to you, gentlemen, a jury of Vermont, with the faith that you are
jhonest and intelligent men and will seek to do your duty in this case honestly and fairly; that you
will call to your aid now, after the patience you have displayed in listening to the evidence,
your best faculties of memory and reason and judgment, and try to do under your oaths that which it
is your duty to do, find a verdict in this case according to the law as it shall be given to you
by his Honor and the testimony as it has been given to you from the witness-stand.
We as lawyers here, although sometimes much wit is expended upon us, have a duty to perform and an oath
which we take when we enter our profession; and that is to be true to our clients, to be
faithful to the causes we espouse, never to betray them, faithful at all times and under all circumstances,
and,
whatever suffering and injury may accrue to self, true to that cause which we undertake. But
it is not required of an advocate to throw his personal judgment or conviction and his word
on the side in which he doesn't believe. If he goes that far he goes beyond the justifiable
principle by which an advocate should be guided and should see that he guards himself.
In bringing this case to you, gentlemen of the jury, I shall try with all the power with which Heaven
has endowed me not to utter any word that the truth does not justify, that the evidence
does not warrant; and I come to you simply as intelligent and honest men, to counsel with you, and ask you
to consider simply the questions that I shall present to your minds in the evidence, and I shall
be a sort of index-finger to run through these pages and point out the matters that seem to us worthy
of your consideration. The eloquent gentleman who opened this case, took occasion to say -- I think certainly without warrant --
that I came here with some national reputation for eloquence. That is totally unwarranted.
And I took it that it was only a clever stroke of policy on my friend's part to enhance his
own vivid eloquence by contrast with my plain speech. I am simply a plain, practical, hard-working
attorney. And I propose to present these questions to you in a plain and practical business way,
without ornament or poetry or quotation. We will leave that to the gentleman who opened this
case. I shall talk this case over with you very much on the plan that my Brother Walker pursued,
in a simple conversational way. I am indebted probably for my being here to the fact that I used to be Governor Page's
attorney in New York, and know something of his affairs; perhaps also to the presence of
Mr. A. R. Page who studied law with Mr. Bristow and myself. And the success that he has
gained in Brookly and New York in a few years of practice make us rather proud of the boy
that we turned out. And I am proud of his friendship. And I think he has demeaned himself here so that he has gained your
good will. I hope that our side has so demeaned itself that we shall go out of this case with no prejudice, and that we shall not have
injured our case.
There was a little element in my brother's opening that we did not think was worthy of him, a little
effort to create prejudice here about the ladies. Gentlemen of the jury, right-thinking men, men who have a regard for
the highest principles of polemics, do not drag ladies' names into the rough soilure of men's battles.
They leave their names where we leave the names of our sisters and our mothers -- at the altars of our homes. That is where they
should be left; not brought into our battles. If it so be that our side won the approval or has the approval
(we know not how it may be) of the ladies, we are glad of it. We thank them from the bottom of our hearts if it is so.
Their finer intuitions, their purer perceptions, perhaps, have divined the right and their hearts turned to this side.
We thank God that it is so, if it is so. But perhaps my friend is too modest.
It may be that he has made a mistake.
They come here perhaps to listen to the mujsic of his voice; to his poetry and eloquence. That wins the ladies. Orpheus of old,
you remember, the Greek god, played upon his lyre with such sweet music that he charmed the nymphs from the dells and they came and sat
down in tranced silence at his feet. He played here with the word liar with tremendous
effect, and pehaps he charmed them by that music, and they came here to listen to him. His modesty is great
and he doesn't want to mention it.
But, gentlemen of the jury, I shall pass now as I say to a plain, practical discussion of this case,
seeking not to be one-sided or unfair; I do not think an advocate wins by that sort of thing. The moment that the jury
or the court loses its power, and it is bad policy, not to say anything else; and he lowers his own manhood
who descends to it. We shall not indulge in epithets or vituperation. That does not make a
cause, it does not make truth stronger. Sometimes a man by his burning words and simulated wrath
and enthusiasm may carry men for a moment off their feet; but the sober second thought of men of strong and sound minds comes back
to the real truth at last. It does not win, and it is not right, gentlemen. These people who are assailed do not have their chance to throw back at us lawyers always. They cannot strike
back any more than that witness who stood there day after day upon that stand and was insulted in a way that I confess
made my blood boil; I do not know whether it did yours or not. He could not strike back.
It was the sanctity of the lawyer's position. We could not stop it. Entrenched within his
privilege, it was only a question of taste. We therefore say that in discussing this case,
I shall not feel justified in doing anything but present to you the facts and let
you characterize them in your minds for yourselves.
And, your Honor, we beg to say this: In the eight or nine long weeks that we have gone through this trial,
you, with your associates, have given that patient attention, that courteous and fair decision that
makes us to say we depart from a Court of Vermont with the feeling that the scales of justice are evenly poised, and that her citizens may come before her
courts with perfect faith that they will have justice and right administered.
Now, to fairly understand this case, a brief review of the situation, of the circumstances, commencing
with the relations of the parties to the property and the thing in suit and the matters in controversy is essential. It is said that men who
stand at the foot of the mountain do not comprehend its massive strength and height and wondrous proportions; but it is he that is
at a distance that gets the scope of the whole, and better judges of it. You, gentlemen, are so removed perhaps from this controversy, from its bitterness,
and from its partisanships, as to be able to view and judge it better than we in the conflict.
My Brother Walker did well when he said this case ought not to be tried on little
technicalities and by merely verbal mistakes of the witnesses, I shall renew the caution.
I do not ask you to test a man upon a single mistake, a single slip of the tongue. They are only little
indicia to you as you go along the way, to judge of men's truth. And as Brother Walker said, you must judge largely, look at the whole truth,
and try and gather in and take it as a whole.
This case starts substantially (although in some of the proof we get away back of that) in 1864. Ex-Governor Stewart of this State
and Mr. Birchard, had, I believe, for a brief time been the Trustees of the old Rutland and
Burlington road. And in July of that year, Governor Stewart went in his opening, that Governor
Page is a strong man and shrinks from no responsibility. He likened him to Napoleon.
I am not going to indulge in that sort of epithet and extravagant praise. He is not like Napoleon. But he is a strong man,
a man of large brain, a far-seeing man, a wise man, who has made this property efficient. During
the years that he took hold of it and tried to put it in order he assumed great debts to put on it
good rolling stock, and to put on good rails and build up the track, and let it have an opening into Montreal and an outlet at
the South, so that it should gather business from the South and business from the North, and compete with his rivals,
and not simply be stranded; and your village left a mere village on a side-track. And this present prosperity and your
convenience and comfort in going to and from the great cities and the transmission of the produce of
your farms every day of your lives, every citizen of this city and county is enjoying because of this road, and every citizen of this village is reaping
the benefits of the iron will and large brain and the strength of that man who was willing to take without money this streak
of rust and this ridge of dirt, and build it into a great road and make his rivals respect it.
And that is why it is, gentlemen, as I apprehend, that I have found, coming here a stranger, that I have met strangers on the streets
who have come up to me and taken me by the hand and siad, "We are glad to find you battling for the right; God grant that you will
succeed in the fight that you are making against those who are trying to break Governor Page down."
I take it it is for the reason that they have seen the things that he has done -- that he has done for the State and his city.
But I pass on. What was this property a few years later? See what he did. And I do not indulge
in my own mere words. In 1871 and 1872 this property was inspected by R. F. Parker, the Railroad
Commissioner of Vermont, and W. B. Gilbert, a civil engineer, and how did they find it then? Here are the sharp contrasts:
"The undersigned have made a careful examination of the condition of the road-bed and track throughout
its entire length, and are warranted in saying that we find them in all respects a first-class road.
And the civil engineer signing this article takes pleasure in saying that he finds the
condition of the road-bed from Burlington to Rutland, a distance of sixty-seven miles, in
every respect equal to and in as good and perfect condition as are the Hudson River and New York Central roads -- roads that are known and
regarded as model roads in our country.
We also find the road from Rutland to Bellows Falls, a distance of fifty-three miles, in good and safe condition.
The Company are now replacing some of the iron rails and will soon place this part of the road from
Rutland to Burlington. It is evident that the condition of your entire road previous to October 30
would compare favorably with any of the first-class roads in the country. The points where
the road received injury are now being repaired and placed in a permanent condition."
That is something to have been achieved for a road that was bankrupt, that was in the hands of trustees or receivers,
because the Company could not pay the interest on its mortgages, without funds to draw from,
without power to mortgage the property. How as it to be done? Think of what a labor that was. But Governor Page achieved it.
After the administration of this trust of the old Rutland and Burlington property from 1864 down
to the last day of December, 1870, or the first day of January, 1871, there came a close of that trust.
We offered to prove here, as a good deal had been said and thrown out about it, that the Trustees
in administering that property had made a profit instead of a loss, with all that had occurred. But his Honor
rightfully perhaps, thinking that unnuecessary, as he kept out from the case all that pertained to that old question of whether there was
any liabiliity on the part of these Trustees, said it was needless to go into that. We therefore will claim
neither one thing nor the other; whether it was profitable or unprofitable. But they came up
to the question of accounting in 1871, and in that matter it is essential and important that you
understand it thoroughly because it bears on several important questions in this case.
In 1867 the Rutland Railroad Company, an entirely different corporation from the one that originally built this road,
was chartered. An organization took place in July of that year. And they kept up their pro-forma organization,
though having no railroad. It was for the purpose some time probably, of taking possession of this property,
getting it out of the hands of the Trustees, and then operating it. They had power to exchange in their charter their
preferred stock (this corporation organized in 1867) for the first-mortgage bomb of the Rutland and Burlington Railroad. That is
conceded by the parties. A question comes later on whether under that charter they had the power to exchange that preferred stock
for second-mortage bonds. But however that may be (we will come to that in a moment) they commenced soon after their organization
to take in the first-mortgage bonds in exchange for the preferred stock of the Company, and did that along up to 1871. That was
for the purpose of getting the control eventually of this property, these Trustees still being in
possession of the road, having, as Colonel Walker explained to you yesterday, made it an efficient property,
with its opening north and south, and a great highway and a great rival of their competitors for profit, the Vermont
Central Road. Governor Page had made it so strong a rival, had made it so formidable
in dividing the business, and perhaps in making rates, that the Vermont Central came to them
with a proposition to lease this property. Well, they had been carrying heavy burdens; they had $1,800,000 of these
first-mortgage bonds of the old Rutland and Burlington to carry, whose interest had been accumulating all these years -- none of it paid. They had had to expend all
the income of the property in trying to build it up into this efficient condition. And also they had
$1,200,000 of the second mortgage, under which Governor Page was operating the road as Trustee. All this burden they were carrying.
All this burden they were carrying. And the question was, even if the stockholders got possession of the property, whether or not income could
be made out of the road in addition to carrying it on and keeping it in efficient condition, and keeping up a war and rivalry with the Vermont Central,
to make anything more out of it. That was a grave question. But finally Governor Page made
the war so hot and made himself so formidable that these people found that, for their own life they
had to absorb this road, just as the Lake Shore has had to absorb the Nickel Plate, and as the New York Central eventually will have to
absorb the West Shore. Two great parallel lines warring with one another for the same traffic cannot live.
It is a divided household or worse.
Finally the Vermont Central people came to them with a proposition to lease this property.
And a lease was made. That I will come to a little later.
What was essentially the first thing to do? The very first thing was for these Trustees
to consent to turn over this property, if a lease was made to the vermont Central. The Rutland Company had not taken
possession of the property, had not taken it out of the hands of the Trustees. The first step was to get
them to consent to pass it over. These Trustees in the administering of this property, in building it up from a worthless to an
efficient condition, in leasing the Vermont Valley Road to get an outlet southward, and in
building this steamboat to the north, and in building the addison Road to have a connection with the Plattsburg
Road, and so on into Montreal in the winter when the boat could not run, had assumed great obligations. The Company
could not take this property upon which these Trustees held a lien, every foot of it, every car,
their lien attached (prior, I believe, the Courts have held everywhere) to the mortgages, for they are
expenditures on the property itself; they could not take it without satisfying them, and giving them
indemnity against these burdens which they were carrying. Now, what did they do? The Trustees said, "Certainly, we will do
anything that is for the benefit of the corporation; we have no selfish interest here; we do not want to go on here administering
this property. Governor Page, thney would fain make you believe, was receiving such a salary that he was growing rich
out of it -- salary as President, salary as Trustee. Has there been any manifestation that he wanted to hold on to this plum
for himself. From beginning to end has there crept into this case one single instance where he sought to advance his individual interests at
the expense of this corporation, or where he has not struggled at all times to advance his trust?
And when the war came between self and his trust, has there ever been an instant that self did not go to the wall and the trust
carried on and protected with his great strong arm and that strong personality of his? They brought
on their accounting, the trust having run from 1864. It could not be done before. They were in a great contest with the
first-mortgage bondholders, and it might be some concession in a legal way, so they had been advised
not to go into that Cheever and Hart suit to make that account. But when the decree was handed
down, sustaining the old decree, the Ellis-Gray-Loring decree for Cheever and Hart, trustees
of first mortgage, decreeing that the property should be turned over to Cheever and Hart under the first
mortgage -- when they go into that situation and they had to make a lease, or turn it over, or satisfy
these first-mortgage bondholders, then something had to be done; Governor Page had gone out and worked
up this lease. They commenced under that suit to make their accounting.
What is an accounting? Why, it is simply for a man to give to those who have a right to call upon him
an account of his stewardship; to give a history and show what he has done; to bring forward the proceeds
and see whether he has what his books call for. It is a simple matter. You put an agent
in charge of your farm and say, "Here is so much stock, so much hay, so much grain, and so many
farming implements;" and you come back in two years and call upon him and say, "What have you done with
the things I left with you, what have been the results of your trusteeship?" Now that is an accounting.
This was a sort of three-cornered accounting. They were the Trustees nominally under the Ellis-Gray-Loring
suit which was under the first mortgage, and also under the second mortgage of the old Rutland and
Burlington Railroad; under that decree, under the order of the Court, and under the decree foreclosing
those mortgages. The Rutland Railroad had bought up some of these, and some were still outstanding.
It had a virtual interest in the property. It was prospective owner of it all, because it was going forward and trying to acquire all these interests.
Therefore the Rutland Railroad Company, which had acquired largely of these mortgages, was
interested in this accounting and appointed a committee to enter upon it
with these Truestees and see that they turned over the whole, that nothing
stuck in their hands, and that they had put on these books
nothing that was wrong during their trusteeship, and made no unjust liabilities for the Rutland Railroad Company to pay.
Thiat is what that accounting meant. It was to be done in a
judicial way, before a master, where if there was any contest,
these people representing this corporation, the Rutland Railroad, could come in and look over all these accounts
stretching back over the whole trusteeship. Opposing counsel have
sought to warp this accounting entirely out of its proper functions and out of its meaning. The meaning was that these Trustees
were to bring in before that master every single item of their work, of their property, of their income, and
of their obligations. Anything less than that was not an accounting. It was an accounting with these Trustees under
this decree, and under this second mortgage that had been foreclosed.
Now you get the scope of it and you see what came into it.
They were accounting as Trustees. They were not accounting for a month or for a day but for their whole stewardship, for their whole trust.
Every single item it was the business and duty of the Court or of the master to see was brought in.
Your laws provide here how people shall be notified and
how their rights shall be cut off if they do not come forward and make their objections if they have any;
and that is by publication in your newspapers. And that publication was made, calling upon all the world
whbo might object to the account of these Trustees to come forward then and there and
make their objections or forever hold their peace. The master gave the
lawful notice. Not only that, but out of
abundant caution the stockholders of the Rutland Railroad Company,
the beneficiaries, the real parties in interest of these plaintiffs here,
appointed a special committee to sit down and go over every item of all
this property which these men had been administering and watch and guard and
see that that road suffered no wrong, that there had been no breach or
betrayal of trust. And they did it. That committee was
Mr. Butler whom you have seen on the stand, Peter Butler of Boston, a man of
intelligence and integrity, whose character is as high as that of any man
in New England, and Mr. Kellogg and Mr. Williams, the President of the Bellows Falls
Bank, whom our adversaries on the stand have had to concede to have been a
competent and able man. Some of you knew him, or know of him. His integrity
stood so high that no man questioned it. These men sat down with these people
and went over every item of this accounting. We assume that they did because
we assume, and it is a presumption of law, that men perform their duties. Finally
the accounts were reported to the Court by the master. They were allowed and
confirmed October, 1871. There was no haste about this, if your Honors please.
The petition for the accounting was presented in March. Not until October 26th,
was it finally confirmed. It was not done in a corner. It was done openly,
after public advertisement in your newspapers, the master giving notice that
if any man questioned any of these accounts that these men had made, after all
these entries that are made upon the books, he should appear and make his objection.
And I shall come to the matter of these entries later and to this $30,000 Valley item.
This committee with their eyes open approving it, the account is finally allowed by
the master, and approved by the Chancellor. It stands res adjudicata.
Now from there I turn back a moment. We had reached October, 1871. And I have
simply called your attention to the fact that there had been a mandate for a decree
in the Cheever and Hart suit. That decree was entered February 5, 1870. What was
that decree entered in February, 1870, and what its influence and effect upon
this property and upon these Trustees. Cheever and Hart held, not in and of themselves
but representing a sort of pool, $645,000 of the first-mortgage bonds of the Rutland
and Burlington Road. And they were seeking to enforce the lien of these bonds upon
this property and have it turned over to them. There had been a long contest over that
matter, whether they were entitled to foreclose. The second-mortgage
bondholders had attacked the validity of that mortgage, but
finally the first-mortgage bondholders won. And on the 5th of February a
decree was entered. That $645,000 had borne interest so long that the
judgment rendered upon those bonds was $1,549,000 and about $90,000 of cost,
in addition. Nearly $1,650,000 was entered up as a judgment against this
property which these Trustees had been administering. That property when the
Trustees took possession of it was, as you have seen, of little value.
I don't remember, Brother Barrett, whether his Honor allowed that part of Mr. Birchard's
deposition to go in which states the value or not.
Mr. Barrett. I have no objection to your stating it from Mr. Birchard's
deposition even if not allowed by the Court.
Mr. Burnett. It was excluded according to my recollection.
Mr. Barrett. I have no recollection about it.
Mr. Burnett. I will pass it for the present. As to what the property
was worth, perhaps you have seen enough from what I have stated. Now, here was
a decree rendered against this property of nearly $1,650,000.
Mr. Barrett. I will refer you to a page in the report which is in
evidence. The last paragraph on page 38, which states it, I think, stronger
than Mr. Birchard's deposition.
Mr. Burnett. If I recollect right, Mr. Birchard stated what the property
would have been worth at the rate at which the securities were selling, but I do
not see his statement and I pass it for the present.
By this mandate, possession was to be surrendered immediately, but it was suggested
by the Court rendering the judgment that it be held with the Chancellor until the following
June, 1870. Therefore these Trustees or the Directors of the Rutland Railroad
had from February 5th until the 1st of June, to raise $1,650,000 or the property
go into the hands of this Cheever and Hart party. And what then would have
been its condition. Where would have been any of these gentlemen who
represent the Rutland Railroad Company, had the property been permitted to go under
that decree? It would have cut out the second-mortgage bondholders. The stock
would not have been worth a dollar. And these first-mortgage bondholders
might have operated that property for
all time or organized anew or had it sold at public auction.
There is no telling what would have become of it. And there
within that short space of time, from February to June,
$1,650,000 had to be raised by somebody who had a strange power to raise money and who was not afraid to shoulder
great burdens.
What did the Directors of the corporation do when they found themselves in this position? Why they turned to the
man that alone could save them. They had failed and refused to take his advice
in administering this property in a former instance.
He had made a settlement, as Colonel Walker informed you yesterday; he had made an adjustment of
this Cheever and Hart matter (I will refer to that in a moment) that would have saved them this difficulty and saved them a great amount of money;
but his board refused to back him. And when they found themselves pushed to the wall,
what did they do? They turned like a lot of helpless
children to Governor Page, and they passed this resolution at a meeting held March 10, 1870. Present,
all the board. "Voted, that the President of the corporation be authorized in his descretion," etc.
No limitation on his powers now when they were in a corner.
:Voted, that the president of the corporation be authorized in his discretion to negotiate with the
committee of the trustees of the first morgage."
Talk about power being given to the President. Then was not the time to talk about power when there was something to be saved.
They have him all power. What did he do? He got hold of these parties and made a stipulation by
agreeing upon terms upon which this decree should be paid off.
By that agreement there was to be paid, including expenses of near $100,000, up to and by the first day of April, 1871,
when the last payment was to be made, this $1,600,000 and odd, or else the property had to go.
Then Governor Page went at it to raise the money. He went to work in the first place and negotiated
two or three things at a time. In the next place he had
to negotiate with the Central Vermont people to see if he
could make this lease. If that lease could be assured, then
financiers would see here was a permanent income, so that if
they advanced the money to this corporation there would be
some source from which would come their interest, and that
would be secure. So he starts up with one hand to gather up
the strings there and make the property of worth and of
value; and then, getting these well in his grip, he turns to persons
interested in the property, financiers in Boston and
elsewhere, and said, You must help us, and loan us this
money; you can see that our property is going to be of value
and have an income; we have got up so many of the
first-mortgage bonds, and this stock will become really equivalent to a first lien upon the road,
especially if we can get up all of these two mortgages.
He convinced them. And he raised large sums of money, so taht up to the time when the lease was
actually made there was only about $400,000 more to be raised to pay off the Cheever and Hart decree.
This Mr. Chase who was on the stand was of great assistance. He helped do the work.
Now do you think that was any light work? When they came kneeling down to Governor Page and asked
him to help, giving him absolute discretion, to save their property, he might very well have said to them:
Gentlemen, now you see the wisdom of what I advocated and what I have done once before.
He had made a contract. And in his report of 1872 Governor Page speaks of this perhaps as he had a right to, where he says:
"In the fall of 1868 a settlement was attempted of all the
pending litigation, and was so far consummated as to be reduced to writing. This paper I have
included in the Appendix on page 60. When the parties to that contract separated
it was supposed that peace was at last declared; that large expenses would be stopped and all the energies
of the managers given to the development of your property. It was
necessary to secure the cordial co-operation of the directors in order to carry out this agreement.
This wass found impossible, owing to the influence of interested parties,
and I was obliged to notify Mr. Farlow, chairman of the first bondholders' committee,
to that effect. In reply I received the following letter:
"'Boston, Dec. 17, 1868.
"'Hon. John B. Page, Rutland, Vt.
"'Dear Sir: Your favor dated at Rutland the 12th, but
mailed at Boston the 16th inst., reached me last evening. I take due notice of what you say,
that "after due consideration by the parties acting with you, and under the advice of counsel, you now
withdraw from further negotiation for a settlement of the pending litigation
between the bondholders of the Rutland and Burlington Railroad."
"'I quite agree with you in the belief you express that an
early equitable settlement would promote the interests of all parties,
and I think it will be cause for regret that you were unable to secure the sanction and necessary
vote of your Directors to the equitable terms arranged between yourself,
Judge Prout, and Mr. Edmunds, and accepted by me in behalf of those I represent.
"'Regretting individually that we have had so much labor-negotiating in vain, I remain, very truly yours,
"'J. S. Farlow.'"
Upon examination of the arrangement above referred to it will be seen that the first bonds were to be paid for at the
rate of one hundred eighty-nine dollars and twenty-five cents for each one hundred dollars of principal
of bonds as of October 31, 1868. Adding the interest to the first of February, 1870, on the same basis,
would give one hundred ninety-eight dollars for each one hundred dollars of principal of bonds;
the maximum amount to be paid for being four hundred and
fifty thousand dollars of principal of the bonds. Under the
"mandate for decree" there was paid two hundred thirty-seven dollars and sixty-nine cents, as of first day of February,
1870, and the amount of bonds then was six hundred and forty-five thousand nine hundred dollars, represented by
Cheever and Hart. It will be noticed by the vote already given (see page 37) that, on account of the additional
allowance under the opinion of the court for interest upon interest semi-annually, additional preferred stock was issued to all who had
converted their bonds, to an amount equal to the sum due on each bond under the "mandate for decree." The result was,
that the preferred capital stock was increased over what it would have been under the said agreement in the sum of
| . | $ 714,400 |
| To raise the money upon the preferred stock at par to discharge the "decree of court,"
the subscribers for the stock were given 7 per cent. bonds as a bonus. There were outstanding |
500,000 |
| The dividend and interest accounts have been increased by payment on this stock and bonds
to February 1, 1872 | 170,016 |
| Additional costs, including amount paid Cheever and Hart, under the third provision of the "stipulation" on page 33,
with interest to February 1, 1872 | 146,000 |
| . | $1,530,416 |
Here we have an increased capital and debt of one million five hundred thirty thousand
four hundred and sixteen dollars. Well might Mr. Farlow say, "I think it will be cause for regret
that you were unable to secure the sanction and necessary vote of your Directors to the equitable
terms arranged between yourself, Judge Prout, and Mr. Edmunds."
He was not always receiving the support of his Directors. He received the support of his Directors after a time because
they learned that his course was wise and that which he sought
to do was right. To raise this money under the Cheever and Hart decree, they voted to issue a million of stock, which, in
in addition to that which had already voted, made the total amount of stock $4,300,000, of the Rutland Railroad Company,
and a bonus (I will not go back to read that) to induce people to that atake stock
and raise this money and to save the property from passing under this decree and out of the hands
of this corporation. They voted, and had to issue bonds as a bonus as an inducement. A circular was prepared and
sent out, and every effort made to induce people to subscribe to that additional million
of stock which had to be raised before the following April, and which had to be secured far
enough to make the property secure before they could complete their lease to the Central Vermont.
And bonds to the amount of $500,000, carrying 7 per cent. interest were voted.
To every subscriber for a hundred shares of the preferred stock of the Rutland Railroad Company,
there would be issued with them 30 per cent in bonds; that is, for every $100 in stock there would be $30 in value of these bonds. And by great effort,
they got enough subscribed, within $300,000 or $400,000 by the time they were to make the lease.
And a funny thing has crept in to give color and tone, as our friends
on the other side would say, to this matter: and that is,
that these same gentlemen who are now Directors of this Company, and are now here prosecuting
Governor Page to recover from him the bonds he received as bonus when he subscribed for this stock, subscribed for this preferred stock
and took this bonus. One of the gentlemen who was put on
the Committee of the Railroad Company to bring this suit against Governor Page,
namely, Mr. Barnard, subscribed for $250,000, I believe, of this preferred stock, and got some $80,000 of this bonus of bonds.
That is what he did. No fault in him. It was a good thing for the Company to have done. That was not a fault.
But to show the nature of this suit, and its conduct, and what it is: He was on the Committee,
one of the leading old Directors. They came up here and planned a scheme for the rocovery -- I don't know
whether it is $100,000 or $150,000, but an enormous sum -- against Governor Page for doing what he has done, nothing more;
and he has got his money in his pocket when he is on the stand. And that is Brother Barnard. It only
characterizes the nature of these proceedings.
Well, they raised this $300,000 or $400,000 by the time this lease was made, and then the Governor
had to put his shoulder to the wheel and get this debt in such shape that these people holding this decree
would consent to release the property, to let it be turned over under the lease. That was done, and
the property was turned over. All these leases and sub-leases of property, which the Truestees had made like the
Vermont Valley, and a whole host of them, are set out here in this report, pages 42 and 43, and were
assigned first to the Rutland Railroad Company, and then they were reassigned to the Vermont Central Company,
the Rutland Company getting the benefit of these leases and becoming the lessors of this property;
the Trustees not holding anything in and to themselves, but passing everything into the Rutland Railroad
Company so as to consummate the lease, passing it on to the Vermont Central.
In passing this property out of their hands, and to do it speedily, there being some unadjusted matters perhaps,
obligations, liabilities, the Directrors and stockholders (they both acted) said, If you gentlemen now
will pass this property over so that this lease, which is to be advantageous to us, can be perfected,
we will give you indemnity against these liabilities under your turst; we have had
the Committee go over your accounts; we are satisified that
they are all right; now then, we will vote to you [and they did vote] a thousand shares [I want you to bear this in mind]
of preferred stock, and a thousand shares of the common stock, and in addition to that,
all the notes to be given for the rent; everything in fact that they were to receive under this lease,
these Trustees were to have and hold until such a time as they should be satisfied (there was no limit as to that) against
any liability they might be under as Trustees. And that was passed over and delivered to them, and thereupon they surrendered the property, having
gone into a full accounting and all that.
This was voted by the Directors, December 1, 1879, and ratified by the stockholders,
January 26, 1871.
It was on this stock that Governor page received at a subsequent time dividends, which were characterized (in this beautiful report that
has been referred to by my friend) as having been "wrongly" paid to Governor Page.
I will come to that again.
The lease was made to the Vermont Central Railroad Company, and that Company was to pay annually $376,000,
and then, inaddition, annually, commencing with a $40,000 paycheck in 1873, it increased to $94,000 in 1874; to $108,000
(and this is all the time in addition to $376,000) in 1875; to $148,000 in 1876; to $162,000 in 1877;
to $162,000 in 1878; to $175,000 in 1879, and at the rate of $94,500 each six months thereafter
during the lease, which was twenty years. That made the rental from that time
$565,000 per year; enough to have paid the interest on all mortgages, paid dividends
on its stock, interest on the fixed obligations, and at the end of twenty years, or towards
the close of it, paying dividends on its common stock up to as high as five per cent.
Now that was a piece of financiering which Governor Page had worked out. A man is not responsible for the breach of
a contract which he makes with his fellow-man. He does the best he can. He makes negotiations and financial
transactions covering great properties, and passes them over and makes contracts with men
of standing and character, and he has a right to rely on the assumption that they will be carried out.
He had carried this property, which was as nothing in 1864, until it commanded an income in the judgment of wise men, of practical men, of $565,000 per annum.
Was it not something of which Governor Page might not only be proud, but for which his fellow-citizens might be proud of him?
Shouldering a responsibility of raising $1,650,000 out of a bankrupt property in four-months time, and bringing it
through and securing a lease that paid $565,000 per annum. Fancy his rival doing that. He did not shoulder any debts.
They have got no debts just now; no, and when there is, you will find these people scuttling away from
this Railroad like rats from a sinking ship. No personal obligations will be assumed by them.
Mr. Ballard.
That is a quotation; you said you would not use any quotations.
Mr. Burnett.
I said I would not quote any poetry. I am dealing with hard facts. I leave you to carry this case on
Hudibras, Shakespeare and Whittier and Bret Harte and Ballard.
Well, gentlemen, that was what Governor Page had achieved at that time. And it ran along, they paying their rents,
and the Company beginning to lift itself out of its embarrassments and its difficulties and paying itself
into good shape along up to 1874 from 1871. And then came trouble. This world is full of
trouble. These Central Vermont people did not want to pay this increasing rent. They began to squirm
under their contract. I don't know how the fact is, but it has been suggested tghat these gentlemen
made this lease for the sake of getting rid of a rival and outwitting Page, and controlling their rival, and that they intended to break it. I don't know that it is tru.e
I dislike to believe that the men controlling the Central Vermont property were of that character.
But, at any rate, they began to find the burden heavy, and threats were thrown out; and it was in March, 1874, I think,
that they passed a resolution that after the 1st of April, 1874, they would pay their rent no longer;
that they would stop entirely. Well, that would have been a mighty bad condition for
the Rutland Railroad property if they could receive no more income. They had a floating debt;
they had the interest on bonds. They would have been wrecked. The phrase used by my friend
in his speech would have been very applicable, "a wrecked corporation," had they been permitted to do that.
And again came in the man who was ready to assume any responsibility. And he said, "Gentlemen,
if that is your game, if that is what you intend to do, we will see
what we can do with you, whether that can be met, and we will manuever our hosts while
you manuever yours, and draw the line of battle." What did Governor Page do?
Without taking into his confidence this Mr. Haven, who takes umbrage at it, and perhaps Brother Chase
who publishes the wrecked condition and burdens of this Company in Boston, and thinks that is the way to raise its
credit -- without taking any of these men into his confidence, but as Colonel Walker said, with a becoming reticence, he goes to his
friends and makes a pool and gets these men as individuals to sustain this Company, strong
men, able men, and he said to them, Come and put your shoulder to mine, touch elbows, move forward, and see if we can meet this
rival. They made up a pool and bought 9800 shares, nearly half of the capital of the Vermont
Central; and then they said, we will walk in here and vote and see if you will break your contract. It brought them up to a halt.
But here an astonishing thing happened, and it is in the public records of Vermont that
your Supreme Court here held (perhaps rightfully, but I venture to say that there is
hardly a lawyer in the land that would have dreamed that the courts would so hold) that when our
parties were going to an annual meeting to vote on the stock to hold that property and hold
them to their contract, these old directors of the Vermont Central could call a meeting in a railroad car and vote to issue
additional stock and keep the control, and were enabled to break this contract through that ruse.
That is in your reports of your courts here and it is a matter of public record. But still Governor Page had grip enough upon them
to make them carry out their contract until 1875. And the difference between breaking it in April, 1874 and
April, 1875, was nearly a quarter of a million dollars. In his own pocket? Oh, no; oh, no; but
into the treasury of the Rutland Railroad Company. That was his duty. Perhaps no great credit
to be claimed from that; but there was no betrayal of trust. That whole Central Vermont purchase
made by Governor Page was a little outside the strict line of his duty perhaps. And I wonder that they
did not bring in some specification here for violating his duty, for embezzling money to buy this
Vermont Central Stock. It would be on a par with the rest of this business here. They take all advantages, they pocket
everything they can get in any one of Governor Page's transactions, and then they want him to pay back all that he has
paid out in getting them; keep all the advantage and then try to get back the consideration.
It was a wonder they did not bring in this Central Vemont matter in some way. It is just as much a
conversion and embezzlement as many of these things they have included in their specifications. We are not
going to paint Governor Page in unwarranted colors. He has his faults, strong ones like his nature,
strong with great characteristics. One of his faults is that he is not regardful enough of the feelings, and perhaps of the rights,
of other men. He sees a great good to be accomplished and moves toward it, conscious of the rightfulness
of the end which he seeks. In acquiring this Vermont Central stock to keep that contract sacred and whole,
he did what the law does not authorize him to do, that was to go and pledge the
securities of his own Company in order to buy up the stock of a rival Company. it is beyond the charter power probably. He had no right to do that.
Yet, was he wrong in doing it? Who shall say? Brother Ballard has said you must not stop at the
end lines of your road. It is true. And another thing, Governor Page is sometimes regardless, thoughtless, heedless, not over scrupulous
of the minutia of orders and by-laws, and of the regular order of things, and his trouble comes
from moving forward strongly, brushing aside mere forms, mere regulations, when an end has to
be achieved. These are his faults. And another great part of Governor Page's troubles has come
from his over confidence in the trustworthiness of his fellow-men, a confiding nature which is often deceived. He did assume to purchase this Vermont Central
stock for the reasons that I have told you.
The claim has been brought in here that he used the credit of this Company to his own
advantage. And plaintiff seeks to charge him interest. You remember the instance when there was an exchange of checks
over night; these men managing the prosecution sat up nights working and digging, and thought they had found something that would carry this jury clear off their feet;
and they would hold Governor Page and they would make a great deal of dirt and smut rest upon him because the Brandon
Manufacturing Company had borrowed the credit of this Company for twenty-four hours.
Now, there is fairness in human affairs, even of corporations. You treat them as having an
individuality. They have a personality to be treated with in the business affairs of the world.
They have the personality which the law gives them and they are to be held accountable and held
responsible for the acts they commit through their agents. It is true as an old English rough judge once said, that it is a pity -- speaking of the power of corporations
and the wrongs which they do -- that for these they hae no "souls to be damned or bodies to be kicked," for only in that way sometimes could full justice
be done. But they have to answer in dollars and cents, and that is a pretty good way. The complaint is made here that
the Governor has used the credit of this corporation. Let us see on the other side. He said, to save this contract we must
step in here and purchase this stock. And he did it. He id it how? He used not only the Company's credit, but he used his own.
And here is the note that has been put in evidence. He stepped forward and made his individual note,
in the purchase of that stock, of $100,000. And he put up what with it? His own collaterals
of $40,000 Rutland first-mortgage bonds, 289 shares of Champlain Transportation Co. stock,
$10,000 in shares of Central Vermont common stock. Did he hesitate? If this lease was
broken was the property worth a cent? Will his note ever be paid? It was a great
individual risk. A hundred thousand dollars is a good deal of money for a man to put up, and put his own collaterals to back it.
It was all on the case of a die. And shall they come in here now and seek to break this man down and hound him to his death for these
things that they set up here; and because he had and used the credit of the Company to the amount of $40,000?
Not if there is a sense of justice in the hearts of Vermont jurors.
In addition to this $100,000 that I have shown you that Governor Page put up of his own
creidt, in 1875, there were other notes -- $17,500 May 17, and September 21, $25,000;
May 17, 1876, $25,000; I think this $25,000 is a renewal of the other; and again $17,500, and $12,000, and
$10,000. There were $72,000 altogether of these notes in this same transaction. Out of all this, not one cent,
the proof is, which you are bound to take -- for there is not a scintilla of evidence to the contrary -- rested in Governor Page's
pocket -- not a cent.
You recollect that they called him up and asked whether any profit was made out of it, whether
he made anything out of this transaction. He said, "I know of none except perhaps a little profit
that was realized on this stock, and that went to the benefit of the Company; I know that not
one cent of profit rested in my pocket." And there he left it; and no effort was made to
contradict it.
There was a great transaction, a very admirable piece of work, breaking through forms and regulations,
perhaps violating the rule of what an officer in form or in law is authorized to do.
If he had regarded simply the letter of the law this contract would have been broken the 1st
of April, 1874, and this Company would have been short nearly a quarter of a million dollars.
But he looked at the spirit of the work he had to do, the soul of things; and he said, It is my duty to guard
and protect and to advance the real interests of my corporation, and not regard the mere letter of the regulation
laid down for my government.
Now, gentlemen, after April 1, 1875, the Central Vermont
broke this contract and reduced the rent to $258,000 per annum.
And what was the result? What was the amount of
the burden on the Rutland Company's shoulders in 1877?
Addison rent, $35,000; script dividends on $300,000 with interest
thereon, $18,000 per annum; floating debt and old
bonds, $400,000, with the interest, $25,000 a year; equipment
7s and 8s, $1,000,000, amounting to $75,000 per annum; first-mortgage 8s,
$1,500,000, amounting to $120,000 a year; salaries
and incidental expenses, taxes, etc., $18,000; making a burden that they could
not shift of $291,000 per annum. And
the amount of the income adding some little items of rent amounted only
to $258,000; $32,000 a year worse than nothing. A bankrupt concern. That
ws their standing when that lease was broken. Here was another load to shoulder.
And who was to do it and lift this Company out again? Did
Governor Page shrink from the work? No, gentlemen; as Colonel Walker told you
yesterday, that situation had to be
faced and something done, or else these old mortgage bondholders (and there were some still out) could foreclose. The
first-mortgage 8s could foreclose on their $1,500,000. The stock would not be worth a cent.
it would be questionable whether any of the other mortgages except the first one foreclosed
would be worth anything, and the whole property would be swept out. What was to be done?
Well, they got together and had a conference, and they said this interest must be reduced;
eight per cent is too much in the present worth of money; perhaps immediately after the war,
or soon after, the rates were high and gold at a premium and we then
had to pay high rates, seven and eight per cent, but now it is not worth that;
it is justice to these men as well as to the road that this interest should be reduced
and that we should not have to pay such a rate of interest.
And so in 1878 on the first of October or November, they paid their last coupons
and shut down on these obligations, and said they must be reduced. Governor Page and his friends
went out at first and bought up shares to control the Addison-road. They said that
rent is too much and that must be reduced; they are getting seven per cent dividends and we must
cut that down. We as individuals own a large proportion; it is necessary that we buy up
enough to control it, and it should be cut down; we must come within the lines of our
income -- $258,000 per annum. That was accomplished in 1878, 1879, and 1880. It was not
an easy thing to do. It took good work, a great deal of diplomacy, and a great deal of
persuasion. These men knew their rights who had these eight-per-cent bonds. They
realized that they could come over here in Vermont and commence suits of foreclosure
on every coupon that matured and get judgment. Think of it, gentlemen. Was it an easy thing
to persuade men to forgive the debt and consent to its being reduced into the lines where
it could be paid? That work was done and all was reduced except the Chase bonds, or the Chase pool,
representing about $200,000 of these eight-per-cent bonds. And there comes in that struggle and the purchase
of these Chase bonds and the necessity for it. Now, you will see as Colonel Walker expressed it,
the side light thrown on these things. You will see how the testimony bears, how these lines of
truth converge to certain points.
There is another thing to be spoken of here. As my Brother Ballard was making his speech,
the answer would almost flash to my tongue, it seemed so easy and conclusive. You
remember what he said in regard to this settlement paper "A," and I thought ht was going to smash
this table with his fist in announcing to you that that must stand. He said if
Governor Page had coming to him $40,000 and odd from the Railroad Company, even if he was worth $300,000,
why was it that he should not be enforcing it, that he shouldn't be taking his debtor by
the throat and saying, "Pay me that which thou owest." You remember what he said in regard to that.
Most astonishing. Well, men speak sometimes the sentiments of their clients. That would have been so
doubtless with his client. Is it strange, now that you have seen Governor Page's conduct
here, is it strange that he did not go to his debtor, this bankrupt concern, unable to pay the interest
on its obligations along in 1878 -- and this was the time when paper "A" was made -- was it wonderful that he did not
take his debtor by the throat and say, "Pay me that which thou owest men?" No; he had
a larger spirit and a more manful way.
First let me lift up this corporation, he said; "There are other people who have great
interests at stake and who have much to claim from this Company; let me first get it on its feet;
there will be time enough for me to get my rights, to look into this statement; I have done
justice to Mr. Haven; he has got his memoranda; I have done my duty to him; he can make out
his cash accounts; let me bear up and lift up this drooping corporation and put it on its feet,
and then will be time enough for me top speak."
This is the difference in men. Was it wonderful? Was it wonderful that he should not come in and be
the first, being the President, to enforce his individual claim, when the Company coudl not pay its
annual dues by $32,000 a year? And that did not change until 1881. The Peters bonds were not
taken up until 1882.
It is said that every truth in the world is in harmony with every other truth in the world. They go hand in hand, like two gentle sisters,
never warring with each other. Wherever you get one fundamental truth fixed, every other thing that is true will harmonize
and fit in with it. When we establish the nature of the man, his way of dealing with his trusts, you will see that in every relation with his trust he will be the same man with the same attributes and with the same purposes. Every falsehood in the world will be at war,
from the days of the Garden of Eden until your great hills shall be shaken from their foundations, with every truth that shall live in that time.
In 1883, after the Chase bonds had been taken up, and the Peters bonds cut down, the interest to six per cent on the eight per cents and the
seven per cent bonds cut down to five, and the Company put on a paying basis, the floating debt substantially wiped out (and would have been totally wiped out, except for this pressure for dividends that
had been started in 1881), then what was done? There came rumors; there came struggles for the dividends; perhaps
opposition on Governor Page's part to paying dividends -- and there are suspicious men always; in this case
their suspicion was justified to a certain extent, and they got up investigation after investigation.
The war began in 1883 that has resulted in this suit.
It has come out in evidence in this case that a suit is pending in this Court against parties
for holding stock -- if not it appears in the documents in evidence -- it has come out here that Governor Page
has commenced libel suits against various parties. It has come out in evidence that there is much
bitterness and conflict. And how does it come about that this suit which, as Brother Ballard
styles it, is the only proper suit that has been brought, is also before you for disposition?
To understand this situation you have got to look at a few antecedent facts.
And at the risk of being tedious I will read you a little from the report
called the McLaughlin report of July 7th, 1883; I suppose, called that because it is not Mr. McLaughlin's
report; it is the report of other people. And I will read you a little from what Brother
Ballard called the report of Governor Page, I suppose because Governor Page did not make it; it is signed by all
the others except Governor Page. When a deficiency had been discovered in the Treasury
of the Rutland Railroad Company, and the air was filled with rumors and charges and
counter-charges, and people were bewildered and hardly knew what the truth was and did not
know how far it might extend, it probably resulted in many unjust things being siad, and perhaps more
unjust things being done. But after the atmosphere had cleared a little and they had
discovered what had taken place, all the Directors, consisting of Mr. Whitney, Mr. Brichard,
Mr. Robinson, Mr. Hickok, Mr. Williams, and Judge Prout, united in issuing to the people
interested in this property a circular. Now, note that this is not signed by Governor Page, although
extracts were read from it the other day by Brother Ballard; undoubtedly making a simple mistake,
saying it was Governor Page's report. His report is in the back part of the pamphlet, but it is
a different article. I read you an extract from this statement of the other members of the Board:
"It becomes our painful duty to announce to you that the cash account of your late Treasuruer,
Joel M. Haven, is short to an amount not less than $38,000 -- and possibly a large sum -- which can only be determined by a
thorough investigation of all the accounts of the Company for a series of years; which
investigation is now being made by a skilful accountant, and nearly completed. It also
appears that there has been a large over-issue of stock, at one time amounting according to
the books, to 5392 shares, but the actual over-issue apparently outstanding is now believed
to be 2391 shares, if spurious shares can be made valid by the surrender of other stock without action
by the corporation. That there was an over-issue of stock, at one time amounting according to the books,
to 5392 shares, but the actual over-issue apparently outstanding is now believed to be 2391
shares, if spurious shares can be made valid by the surrender of other stock without action
by the corporation. That there was an over-issue was discovered by an examination of the
stock-books by H. B. Wilbur, at the suggestion, as we understand, of the President. When these
irregularities became known to the President he requested and secured the resignation of Mr. Haven
and Mr. J. H. Williams was appointed Treasurer pro tem., which office he still holds.
An attachment has been placed upon the property of Mr. Haven, and it is hoped that, together with
his bonds, enough may be secured to save the road from ultimate loss."
Now here comes a significant feature:
"The examination of the stock-books has been thorough and complete, and revealed the fact
that your late Treasurer has over-issued both the preferred and the common stock from time to time,
and to large amounts. one of the latest and most important transactions took place in November last.
There was issued at that time to P. W. Clement, 3170 shares of the preferred stock, for which no
valid shares were surrendered. These spurious shares, invalid in their origin, and issued
under very peculiar circumstances, are now in first hands, and, as we believe, afford no
ground for claim against the corporation."
Now, if that was so and Joel M. Haven was not personally responsible, whoever Mr. P. W. Clement
represented would have to answer, or he himself answer to the Company, in the return of those shares
or their value. That was an interested situation just at that time -- but a little further
-- "afford no ground for claim against the corporation; and under advice of their counsel a
bill in chancery has been filed against Joel M. Haven, P. W. Clement, Charles Clement, and John A. Mead,
the latter of whom was a party to the sales of the said spurious shares to the Clements."
It might well be asked, How much did this Dr. Mead know about it? He was a party to the sale as he
admitted on the stand here.
"And a temporary injunction obtained restraining them from making any use of the said
shares, or bringing suit in regard to them until the Court adjudicates as to the matter.
It is intended to faithfully prosecute this suit, and it is believed that upon the evidence the
Company have, these shares will be cancelled and the Company suffer no loss therefrom.
* * *
"We annex a statement," say these gentlemen, "from Mr. McLaughlin, the accountant
employed by the Company in regard to the stock and cash accounts of the Company,
showing that no other officer of the Company but the late Treasurer is in any way responsible
for the irregularities."
Then, here comes a statement of McLaughlin, following right on.
We do not have to rely on one witness for our evidence. We do not have to rely on our side
for our evidence. And you will see during the discussion of this case I go to the witnesses
of my adversary and shall prove our case by them.
Here is Mr. McLaughlin:
"My examination of the books of your Company is nearly completed. By direction of the President
I have made it very thorough, and shall prepare a full and particular statement of the
condition of all accounts.
"The preferred stock was over-issued 2741 shares, of which 350 shares have since been
replaced by the late Treasurer, leaving a balance of 2391 shares. The over-issue had varied
in amount at different periods, being replaced, in part, from time to time.
The effect of this replacement I do not pretend to understand. In November last,
when 3170 shares were made by the Treasurer in one transfer to himself, and to his own
debit (personally), there would not have been a single share to his credit providing all
transfers and debits to his account had been properly posted. The details of this will
be shown in my report, as also the exact extent of over-issue at the time the three
dividends of August, 1881, and February and August, 1882, were made, and how the books were
then altered so as to appear correct. There is an over-issue of common stock, about 500 shares.
This amount cannot yet be given exactly. A deficit exists in cash accounts which amounts to some
$38,000. This is indefinitely stated, for the reason that it includes unpaid dividends,
charged as paid, the exact amount of which cannot be ascertained till all stockholders are heard froim.
The Treasurer claims that some portion of his money remains in the hands of the President unaccounted for;
the fact being, that for a certain period, by vote of the Directors, and for satisfactory
reasons, the rent of the Cheshire Railroad Company was paid directly to your President,
who acted as temporary agent or depositary of such moneys, paying the Company's obligations,
depositing in bank, and otherwise accounting to the Treasurer for the same.
On the other hand, the President avers that he has fully accounted for such receipts and more."
Now they say this claim of ours is all new, and that Governor Page had not suggested his
claim up to the time of the meeting of his board. Again --
"And in every instance has traced the money directly into the hands of the Treasurer
and has obtained his acknowledgment thereof."
That is true. And here is the paper on which the accounting has been made.
"This would seem to be a matter entirely between themselves, of which nothing in the books
of the Company was intended as a record or can be accurated treated as such. I am confident that
the Treasurer must account for his deficiency in some other way."
Mr. Barret.
I suppose you do not intend to misstate what we claim. You said that we claimed that
Governor Page had made no suggestion of his claim until the meeting at that time.
Mr. Burnett.
I so understood.
Mr. Barrett.
Our claim is that he told the Board that he discovered it since the annual meeting, and
that that was a false statement.
Mr. Burnett.
Perhaps instead of taking the gentleman's way of now stating it, I am taking it upon
Mr. Ballard's opening statement of the case in which it was stated substantially as I have stated it.
Mr. Barrett. Well, we rest the case on the evidence.
Mr. Burnett.
WSell, that is a good place to rest it. And now gentlemen, I will call your attention to
a report which Governor Page did then make to the stockholders and which is published in
the same pamphlet in which he says this. And it shows the nature of the man, I think.
Colonel Walker put that very well, yesterday (I cannot do it nearly so well), as
to the relation that existed between Governor Page and Mr. Haven through a series of years,
and the friendship and affection that had grown up between them, the trustful nature of Governor Page
towards this man, the almost impossibility for him to believe that Mr. Haven could be guilty
of a wrong to this corporation, such as he has been charged with, and to him. And he adds this pathetic sort of sentence:
"I do not hold myself in any way responsible for statements said to have been made by Mr. Haven
to the various so-called accountants brought by the Clements from the office of a Director of the Central
Vermont Railroad Company, and elsewhere, to spy out damaging admissions. That Mr. Haven
has grossly deceived me, I admit. It was a terrible surprise to me and remains a last grief."
That was his true feeling. It was not any triumph to Governor Page to find that a man
who had sat at his table and his fireside, had betrayed his trust. Does that gratify the heart of
any true man, to find some one who had walked uprightly in the community; who had occupied positions of trust and honor;
who had been leading in good works and a foremost member of the church -- to find religion made a reproach
by his wrong, to find his friendship betrayed? Do good men rejoice in such things? It is only sad.
They love to see their fellow-men prospering and living rightful, pure lives, and to be vindicated when reproach
reaches them and when they are assailed. How great the contrast from the way it has been here.
Why, gentlemen of the jury, when they thought they had got evidence clinched in here that would
destroy Governor Page and make it beyond a question that he had stolen the property of this
Companmy, and that they could denounce him as a thief to you, how they gloated, how they smiled.
With what theatrical effect was the evidence put before you that here was $30 at any
rate that they would be able to fasten upon Governor Page as a steal.
Their countenances fairly glowed in their triumph over the fall of a man who had stood high in your regard.
It was the laugh of malicious men, of men who gloat over the downfall of their neighbors. IT is the desire
to pull down and to assail. The smile of the adversary was so glowing that it was almost sad
to disappoint it -- the smile that showed its teeth. This adversary who assails here, smiles
with his teeth, and of such men beware.
These things give a little of the reasons of this assailing and of the ground-work of this
beginning. There was another report issued July 30th, in which more fully is detailed the deficiency of Mr. Haven and the over-issue of 2391 shares. This was twenty-three days
after the issue of the former report. It says, "An over-issue has existed since November, 1879,
and has been continued." And then it goes on to state that on these over-issued shares, Mr. Haven has been
paying dividends. And speaking of this Clement transfer, it says:
"The transfer of 3170 shares to Mr. Clement was not based upon any surrender of certificates, and at first a single certificate, not regularly made,
was issued to him. This was afterwards exchanged for eleven certificates, and these again turned in and nineteen
new ones given. Two of these last, for one hundred each, were subsequently returned by Mr. Haven, being a part of the 350 spoken
of as being placed to his credit, leaving seventeen certificates for, in all, 2970 shares,
in the hands of Mr. Clement, for which no basis exists, other than the said transfer."
If Mr. McLaughlin spoke the truth there (their witness) it is the duty of that gentleman,
Mr. Clement, instead of being here to prosecute this suit, to walk into the treasury now held by one of the gentlemen who was a party to that spurious issue,
Dr. Mead, and surrender those certificates. There is where this Company can go for something that seems a pretty straight claim.
Then Mr. McLaughlin goes on and shows how the deficiency occured; that the check books are
not records of the transactions; that he (Haven) mingled the Company's moneys with his own;
that he held himself only responsible to the Company for the amount called for at any
time by his books; that he did not pretend to keep it in bank. That is what Mr. McLaughlin reported.
Talk about Governor Page making up bank accounts. Why, at no time did this treasurer undertake
to say that the bank account should agree with his books, says Mr. McLaughlin,
"only holding himself responsible to answer for the amount that his books called for."
That is what we say he should answer for. The books call for a deficiency
of $40,000 and odd when he resigned as Treasurer, and there is your deficiency. That is
Mr. McLaughlin; it is not Governor Page speaking. I will show you that he speaks the same
to-day, after three years of investigation; not one scintilla to take back. Not one bit of variation
from that testimony does Mr. McLaughlin make when on that stand. He swears that the deficiency
is with J. M. Haven and nobody else. In all of this examination, says Mr. McLaughlin, "Governor
Page has afforded me every facility which I sought or required, and evinced a desire to aid in
every way to arrive at the exact truth; he seemed to have nothing to conceal."
Is there any other witness that speaks otherwise here? Following this discovery of the
deficiency, this suit being brought against these gentlemen to return this stock into Governor Page's
hands -- that is, he was President, and the board had brought a suit, and sought to have the Clements account for
over-issued stock; then they got into a war. The Clements were successful in ousting him
from control. They had more money than he. The deficiency of the Treasurer probably, did, more or less,
cloud the reputation of the Governor, and lead the stockholders to distrust him, and he was ousted from control and the
Clements went in.
Did their wrath stop there? Was that the end of the controversy? No; not yet. A suit
had been brought, an injunction suit, which is set up here to prevent Page and Haven from
getting
any access to the books or controlling these affairs; the injunction as to Governor Page
was
set aside, without Governor Page ever appearing in the case. Then they appointed a
committee to investigate. Governor Page appeared there from time to time, offering to give
any information, claiming that he had a claim against the Company, and asking an arbitration.
Now, go back and look at that situation, and bring it all up to your mind. These people, we take it, -- I don't know
that it appears in evidence, but it is plain so that any one can see it, -- had been rivals more or less in business here. When Governor Page was Treasurer of State
was anything ever hinted against his integrity? And when his treasurership ended, and the boys came home from the great struggle,
with their honors thick upon them and covered with the scars of their long service, whom did they take up and make their foremost representative?
They placed John B. Page in the highest place in your State. He was President of the Rutland Railroad, Vice-President of the Central Vermont,
and had held placed of trust innumerable. And here a great fight had come. The railroad Treasurer's accounts were deficient.
The expert appointed to make the investigation reported that it was with him; not anybody else. Not a word at that time
except what rested in rumor or the suspicion of these gentlemen against Governor Page. Yet, how did they treat an adversary? Well, they might have gone back to the dark ages,
the period of the wars of the Moors and Spaniards, and taken a bright example from them. And that is, not to stab in
the dark; never take an unfair advantage of an adversary; meet a man breast high, to demand only an open field and fair play. Did they meet him so? Did they call him in and say,
It is due to you and to the great trusts you have held, and to the people of Vermont whom
you have so represented, that you should not be condemned unheard. Was it not at least right that the same
justice should be meted out to the Treasurer? They called him in and heard his statement. They took him into their confidence and heard his story.
But did they call upon Governor Page at all for information? Mr. Sargeant, their own Director, swears that no information was asked of him;
but among the first things they do (and that comes ou in the testimony) they issue circulars assailing Governor Page through financial channels,
trying to destroy his credit and break him down. And that is the way they assail their enemy, that is the way
they fight a railroad fight. That is the way they undertake to enforce their claims against him.
A man who is carrying on great industries, the Howe Scale Company, the West Shore Railroad,
marble quarries, this railroad that he had built up, owner of these Valley Railroad
stocks, carrying large debts and large assets, his credit was the most tender point at which they
could assail him. It was a thing that if they had struck down made him almost powerless as a man,
it was like the Moore slipping up behind the Spaniard and cutting a leg so that he could not use it,
or maiming an arm and then calling upon him to meet him in open fight with the sword. That is what they were doing.
That is the way they did. And that is in the proof here. Think of it, think of it, gentlemen! It seems to meit must arouse your just indignation when you come to think of it.
And they succeeded. They were shrewd. To use the phrase of my Brother Walker, they are not fools;
they are clever men. They knew where to assail and they have made him grow old, good fighter as he is,
ready for the battle when it is fair fight, and always fighting above the belt, open and manly;
but it has made him grow old. You have seen him pass along your streets here sometimes with his sad face.
Sad, not for this claim, not for what they would bring against him here; he doesn't fear you, gentlemen,
and I don't fear what your verdict will be; but it is because they have charged him with fraud and crimes, and
have assailed him in the court-room; and counsel have come here and attacked him as though he was
some prisoner that had escaped from the penitentiary. That and the destruction of his credit has bowed his head.
That makes people old and long for the end to come and for the time to cross the dark river.
And that is the way the fight was carried on. that is where it began. That is the way it has been conducted.
When that circular came out, what did he do? You have heard of a libel suit that has been spoken of here.
Not a secret attack on credit but a demand to come into the courts of this country; Governor
Page saying, I will make you answer and see where the fraud is. Have they met it? Has
it been tried? No. Perhaps not their fault, but it has not been heard. That is the way Governor Page fights his fights. That is the way he
meets their slander. He came into court and was ready to meet this suit from the first day. It is public record, it is public history, that from the first day he has been ready
to meet their claim here before his fellow-men and before this court. He is trying to make them answer before his fellow-men in this libel suit.
But if they could break him down, they thought, if they could destroy his credit when he was carrying this great burden
of property and of public enterprises, he would not be able to fight this fight. It is an expensive
business. I do not come here for a trifle to work for this man, although I have a strong friendship and affection for him that has grown up in nearly twelve years' service for him.
I know the man inside and out; and I would come here were there not a dollar of pay to fight this fight. But it has been at great cost to him for all this labor of preparation and
all the work that has been required to be done; and he is trying to carry the burden. These accounts stretch over twenty odd yuears
and cover some twenty-three millions of expenditures, hundreds of thousands of checks and acceptances; certainly reaching up into the tens of thousands, that had to be investigated. Three
and a half millions of dollars of them hurled at him without a word of warning, and saying, you must answer every one of them. That could not be lightly done.
That had to be accomplished by months of labor, and by skilled men employed and paid, and who must live while they work.
But if they could crush him financially so that he could not carry on his fight, they proposed to do so. And perhaps they would have succeeded had it not been, gentlemen,
that there are men in the old State of Vermont that love their old Governor, and are ready to reach their hands into their pocks and help
him, and said to him, "This outrage shall not go on without your having a chan ce to meet it; you shall fight out your fight if we have to help you through it."
Perhaps that may be so. I do not know. That was a shrewd move on the part of these assailants -- that was a prime move;
it was the move of a man who smiles with his teeth. He can grasp the hand of a man and smile,
but his teeth will show every time he smiles.
What next? How did they begin the fight?
This suit was commenced, I think, in February, 1884, and in the following May they set out
these specifications, conveying nearly $1,000,000 of claims. I am not going to stop to read them all.
They are in brief --
Copyright © 1998, Mary S. Van Deusen
