the decision must be the same in this case as in the Davis Case, except as to such new matter as may have been introduced since then.

"Item 2. The matter of the transfer of the contract for serving power to North Avenue Railway from United States Company to Brush Company is fully considered by the court in Davis v. United States Company, and the conclusion arrived at that the contract was lost by a policy which was adopted by the officers of the United States Company, inaugurated for the benefit of that company,' and exonerating the Brush Company from any fraudulent attempt to injure the United States Company by making an independent contract with the North Avenue Company for service. The present claim, by simply extending the period of time for which the claim is made, seeks to open that question anew. If, however, as decided in Davis v. United States Company, the Brush Company had a perfect right to make the contract with the North Avenue Company, it is difficult to see how any claim can be set up against that right now. The contract, however, subsequently entered into between the Brush Company and the United States Company, whereby the United States Company was to furnish the current, and receive in payment 66 per cent. of the amount received by the Brush Company from the railroad, may in this case, which is a bill for an accounting, be a matter of inquiry. This contract and the rate of 66 per cent. appear to have been agreed upon after a consultation between the officers of two companies at a meeting of the executive committee of the United States Company, at which Mr. Baldwin and Dr. Whitridge appeared to act on behalf of the Brush Company, and Mr. Clark, who presided, and Mr. Keilhotz, who was present, but not a member of the board, appeared to advocate the interest of the United States Company. Mr. Keilhotz relates what occurred as follows: 'A general discussion as to the cost of operating the North Avenue Railway Company's generators at the station was entered into for the purpose of determining the proper proportion of the receipts from the said railway company that are due the United States Electric Power & Light Company for operating these generators for the Brush Electric Company. Dr. Whitridge offered the following resolution, which was seconded by Mr. Baldwin: That the United States Electric Power & Light Company agree to operate the railway generators for two-thirds of the total amount charged the North Avenue Railway Company on account of this service, which proposition will be acceptable to the Brush Company. Mr. Clark objected on the ground that the United States Electric Power & Light Company would not receive sufficient compensation for the service rendered. The vote was as follows: Ayes, Whitridge and Baldwin; nay, Clark; and the motion was car

ried.' Mr. Keilhotz stated to Mr. Clark that he (Keilhotz) thought a 10 per cent. collection would be a proper charge to pay the Brush Company. The contention on the part of the complainant is that, as the above resolution was carried by the majority of the committee representing the Brush interest, the presumption is that it was unjust to the United States Company. The court, however, in speaking of this transaction, says (Davis v. United States Electric Power & Light Co., 77 Md. 48, 25 Atl. 986): "The proof leaves it somewhat in doubt as to whether that company [United States Company] incurred loss in supplying the power under the new contract; the weight of the evidence, in our opinion, being that it did not. But it is shown that no complaint was ever made to the Brush Company, or to any one, that such was the fact.' The United States Company continued to operate under these terms, and to receive the 66 per cent. of money paid; and the auditor, therefore, does not see any reason which would authorize him in reforming this contract.

"The fifth item, being for money received from various customers of the United States Company, taken from it by the Brush Company: This claim appears to be the same discussed by the court in the Davis Case, pages 45, 46, 77 Md., 25 Atl. 982, in reference to the order that all applications for lights should be referred to Mr. Tudor, secretary of the Brush, as they had formerly been referred to Mr. Baker, general manager of both the Brush and United States Company; and the charge is that Mr. Tudor refused to allow the United States Company to have such lights as justly belonged to it. The court says on page 46, 77 Md., page 986, 25 Atl.: 'We do not undertake to pass upon the correctness of Mr. Tudor's decisions in each of the cases mentioned in the testimony, so referred to him by the secretary of the United States Company. It is sufficient for this case to say that we find nothing that would justify a court in pronouncing that he was influenced in his decision by such motives as were discreditable to himself, or detrimental to the interest of the stockholders of the United States Company.' And the auditor has found nothing in the evidence taken since the Davis Case to show any fraudulent interest or injustice in the dealing on this behalf between the two concerns.

"The First Item of the Account.

"Going back now to those items in the account asked for by the complainant, and which are based upon occurrences since the facts involved in the Davis Case:

"The first item asks an allowance of principal, with interest, less credits, of $358,510.31; being proceeds of the business conducted from October, 1893, to November, 1894. This claim is based upon the following facts: On October 13, 1893, the Brush Company's works were practically destroyed

by fire, and the Brush Company sought, by whatever means practicable, to immediately furnish lights to its customers, many of which lights were of extreme necessity-such as the arc lights furnished to light the city. Some of these lights were, in the emergency, given to the Maryland Electric Company to furnish current over the Brush wires and poles, for which the Brush got no compensation, but the Maryland Company collected direct from the city for the service; and power was gotten to run a 60-light Brush machine from McElderry's wharf, but what compensation was paid for this power does not appear. The main power for some time after the fire came from power furnished by the boilers and engines of United States Company to Brush electric machines installed by the Brush Company in United States Company's works; and the charge is that immediately after the fire the Brush sent word to the United States Company not to take any more lights until they heard further from them, and that the Brush Company proceeded to install its electrical machines in the United States Company's works, and put blowers on the boilers, and thus stimulated them beyond their normal capacity, to the great injury of them and their engines, and thus served the Brush Company's customers. It was subsequently arranged, some time in the spring of 1894, following, that the Brush Company would pay for this power at the rate of $1,500 per month. This amount, it is charged, was grossly inadequate, and, as the Brush Company's earnings were almost entirely realized, after the fire, from currents generated at the United States Company's works, its whole gross income from October, 1893, to November, 1894, belongs to the United States Company, less what has been paid themsome 13,000-odd dollars, upon the theory that the burden of proof is on the Brush Company to show what part of its earnings came from the power furnished from United States Company's works, and what from other sources if any, and, failing in so doing, the largest sum is to be charged against them; that, furthermore, at the time of the fire there was claimed as due the United States Company $30,000, $15,000 of which was loaned to the Brush Company, and that it was the duty of the Brush Company, immediately after the fire, instead of putting its electric machines in the United States Company's works, to have purchased with this money electric machines for the United States Company.

"First, as to the charge that the United States Company was ordered by the Brush management to take no more lights until they heard further from them. It would appear from the complainant's own witnesses that the United States Company had but little capacity to furnish many more lights than it was furnishing at the time of the fire. Carmady testifies that the capacity of the

United States machines, including two 20light machines, which could be run on either arc or incandescent lights, but were in the fall of 1893 run on incandescent lights, was about 400 arc lights, and that in October, 1893, they furnished 344 Saturday night lights. It would thus appear that on Saturday nights, at least, the works were furnishing to its customers lights (if not fully) nearly up to its capacity, viz., 344 arc lights and two 20-light machines, which were running on incandescent lights, which would make 'about 400' arc lights-the full capacity of the works. Further, the complainant's witness Georgia C. Bowen, clerk and bookkeeper of United States Company, testifies: "The day after the fire there were a good many calls for lights, which we did not, as a general thing, supply (but in some cases we did), for two reasons: One was we had an order from the Brush Company not to do anything in the matter of taking lights until we heard further from them; and the other was, it was the fall of the year, and we were full of lights, and I don't think we had much room to take any. The company was of small capacity.' As to the whole of the service being rendered by the United States Company's station from October, 1893, to November, 1894, or for any great part of that time, whereby alone the Brush Company was able to furnish current from which it received any revenue: As stated above, it was testified to that it installed a 60-light machine at McElderry's Wharf. The defendants' witness Slemons testifies that he was employed at the Brush works prior to and after the fire, and that inside of three weeks after the fire the Brush Company, at its own works, had two engines going, capable of and driving 500 horse power; that there were added and going, before the end of the year, one engine capable of driving four Brush machines, of 60 lights capacity, which would be about 240 horse power, and one engine of an incandescent machine of 124 horse power. The complainant's witness Tenley states that it was between five and six weeks after the fire before the Brush works furnished any current. It further appears from the testimony that from time to time in 1894 the electric machines placed in the United States Company's works by the Brush Company after the fire were removed and installed in the Brush works. At just what dates these machines were taken out of the United States Company's works does not appear. question is, what was a reasonable compensation to be paid the United States Company for the power furnished to run the Brush Company's machines, so that the Brush Company could serve its customers over its own wires, and whether the rate of $1,500 per month paid by the Brush Company for this power was a reasonable one. The manner in which this proposition to pay $1,500 a month was viewed by those representing the minority and adverse interest in the United States

But the

Company furnishes the best evidence of its reasonableness. The complainant, Cannon, testified that he was present at the meeting when this proposition was made, and that he asked if they could not make it $1,550 a month; that Mr. Clark thought the allowance entirely too low, 'and, as he thought so, I thought so, too, and I made the proposition to try and get $50 more, and failed.' It would thus appear that the complainant himself only asked for a slight increase over the price named and paid.

"There is a further claim that it was the duty of the Brush Company, representing, as it did, the controlling interest in the United States Company, immediately after the fire, to have purchased, with whatever amount of money was to the credit of the United States Company, machinery, and installed it in United States Company, so that the United States Company could have served the Brush company's customers who applied to it immediately after the fire. It is somewhat uncertain just how much money there was to the credit of the Brush Company at that time -whether thirty thousand or twelve thousand-but it is alleged that it was thirty thousand dollars, and that fifteen thousand dollars was loaned to the Brush Companysome, but how much is not stated, on notes which had been redeemed from time to time, and some on call of long standing. As to the remaining fifteen thousand, Cannon states that, at the time of the meeting to which the said newspaper article refers, a question came up in reference to the ground rent on the United States Company's works, then coming due, and that could be redeemed out of the funds of the company. It appears that this ground rent was so redeemed, and the question is, was it a fact that the Brush Company did not take the money used in redeeming this ground rent, and return whatever amount it held on call, and pay the notes given to the United States Company, and install machinery in the United States Company's works, so that the United States Company could reap the full benefit of the Brush misfortune? As stated in the opinion in Booth v. Robinson, 55 Md. 419, the common directors had duties to both companies which they must observe, and to sacrifice the interest of either company to the other would have been a breach of the trust reposed in them. It could not be supposed, even if they had purchased, at a large expense, additional machinery for the United States Company, that the common directors would have been justified in allowing the United States Company to have offered more than a temporary service to the Brush Company's customers, and that when the Brush Company was able to resume business the United States Company would not have been left with the machinery on its hands. It does not appear that the arrangement made with the Maryland Company, which the Brush found fully equipped to come to their as

sistance, was anything but a temporary arrangement, or that the Brush Company did not, as soon as it was able, resume furnishing lights to the city. The auditor, therefore, does not find that the Brush Company, as represented by its directors, was guilty of that crassa negligentia which would make it liable in not using the funds on hand, at the time of the fire, to install new and additional machinery in the United States Company's works, but, rather, that the weight of the evidence is that it acted wisely for the United States Company in not doing so, under the circumstances.

"Third Item of the Account.

"Gross profit on amount admitted by the Brush Electric Company to have been realized by it from the business of the Northern Central Railway Company taken by the Brush Electric Company from the United States Company.' It appears that the United States Company had been furnishing the Northern Central Railway with arc lights to light its yards at 50 cents per light per night; and Mr. Wilkens, manager of the railway company, applied to the United States Company for a reduction to 35 cents, but only obtained a concession to reduce to 45 cents. Apparently, this was in the fall of 1894, after which the Northern Central Railway Company made no further efforts for a reduction from the United States Company, as it regarded this reduction as conclusive on the part of the United States Company. Subsequently (apparently in the fall of 1895) the Northern Central Railway Company, contemplating a change from gas to incandescent lights at Union Station, requested a bid from the Brush Company, and subsequently received a request from Mr. Morrison, the manager of the Maryland Electric Company, asking the privilege of bidding on this contract, and the contract was awarded the Brush Company. Mr. Wilkens states the reason why the railway company discontinued the service from the United States Company as follows: 'Several reasons. Chiefly because the Brush Company furnished the arc lights at a lower rate, and because we contemplated introducing incandescent lights at Union Station, and we did not care to make arrangement with two companies for electric lighting, nor to continue the arrangement of receiving incandescent lights through another company; my understanding being that the United States Company only furnished arc lighting.' From the above evidence it would appear that in the letting of this contract the railway company desired to deal with the company capable of furnishing both arc and incandescent lights, which latter class of lights the United States Company was not adequately equipped to furnish, and that both the United States Company and the Brush Company found themselves confronted with a competitor in the Maryland Electric Company, which competition the Brush Com

"The contention is that the Brush Company ran its lines on Pennsylvania avenue and Patterson avenue, which streets had been previously occupied by the United States Company, and that, although the United States Company's lines still remained, the company's business was damaged by the Brush Company paralleling its lines on these streets. Samuel Knouse says: "The United States Company had the first commercial line out Pennsylvania avenue and on Patterson avenue. At present the United States has two arc circuits out Pennsylvania avenue part of the way. One wire goes to Fremont and Pennsylvania avenue, and returns to Patterson avenue; then out` Patterson avenue to Gilmor or Stricker. The Brush has a circuit out Pennsylvania avenue to Patterson avenue; Patterson avenue to Carey street, one arc circuit.' Why the Brush Company should be excluded from running its lines a part of the way on the same streets the United States Company had a line on, does not clearly appear to the auditor. The auditor has, therefore, not allowed this claim.

"Upon the whole view of the case, the auditor finds that there is a 'failure to establish the fraudulent design or purpose alleged to have characterized the various acts and transactions done and instigated' by the directors representing the Brush Company, and he has therefore not allowed any of the claims presented by the complainant.

"The auditor was engaged seventeen days in examining the proceedings, reading the testimony, and examining a great number of authorities; one of the parties having submitted for his consideration a brief of 71 pages of typewritten legal cap, and the other, one of 9 pages, besides which the auditor had a great number of interviews with the respective counsel in regard to the case. The auditor has prepared, at the request of the complainant's counsel, Account X, but which he does not adopt as his own. The last account stated by the auditor (Auditor's Account No. 2, filed February 28, 1898) was ratified in part, and excepted to in part. These exceptions have never been heard, as they are dependent on the decision of the questions now brought before the court. As the only funds in the hands of the receivers have been distributed by auditor's account No. 2, to which exceptions are pending, as stated above, the auditor has not stated any account of expenses or court costs, but ap

FOWLER, J. This appeal presents for the second time questions growing out of the alleged maladministration of the affairs of the United States Power & Light Company of Baltimore City by the Brush Electric Company of the same place. Some time prior to January, 1893, one Augustus Davis and others, stockholders of the United States Company, filed a bill in the circuit court of Baltimore City on behalf of themselves and others for a receiver of the United States Company, to prevent it being wrecked, as alleged, by the Brush Company. This was the beginning of the litigation which resulted in the appeal which was disposed of by this court in the case of Davis et al. v. United States Electric & Light Co. et al., 77 Md. 35, 25 Atl. 982. The history of the two companies, and the relations existing between them, are clearly given by Page, J., who delivered the opinion of the court in the case just cited, and we will reproduce it here: The United States Company was supposed to have been incorporated under the general incorporation laws of this state "for the pur pose of manufacturing electricity for illuminating and for use as a power, and for all other purposes to which electricity or magnetism may be applied, and for buying and selling dynamo electric machines. * ** For a number of years it had been engaged in the business for which it was incorporated in the city of Baltimore. The Brush Electric Company * was also incor

*

porated under the laws of this state for the purpose of conducting the same business, and prior to the year 1886 was a rival and a competitor of the United States Company in the city of Baltimore. To prevent the ruinous rate cutting and underbidding which were the consequences of this rivalry, the Brush Company in that year became the purchaser of a majority of the stock of the United States Company, on the invitation of the latter company or its stockholders. The affairs of the United States Company seem to have been conducted to the satisfaction of both the companies until November, 1891, when the troubles began which form the subject of complaint. The bill [in the Davis Case] alleges that an election was held by the stockholders of the United States Company, at which was chosen a board of directors, a majority of whom were persons principally interested in the affairs of the Brush Company, appointed by that company to carry out a policy dictated by the Brush Com