
    SAMUEL H. TAGART and F. W. Bennett, Executors of Zenus Barnum v. THE NORTHERN CENTRAL RAILWAY COMPANY.
    
      Decided December 18th, 1868.
    
    Corporations ; consolidation ' and conversion of stock and BONDS ; ESTOPPEL ; DAMAGES.
    B. was the hoi del- of twenty-five bonds of the York and Cumberland R. R. Co., each for $1000, with fifteen interest warrants for $30 each, on each bond. The bonds were dated the 7th- of January, 1851, and bore interest at six per cent, per annum, payable semi-annually, and matured on the 7th of January, 1871. They were secured by a second mortgage of all the property and effects of the York and Cumb. R. R. Co., chartered by the State of Pennsylvania in 1846. Each of the bonds contained the following clause: “And the said G., B. & Co., or any holder of this *bond, are and shall be entitled to convert this bond, and the money due thereon, into an equal amount of the capital stock of the York & Cumb. R. R. Co., on the surrender to said company of this bond; whereupon the said holder shall receive from said company a certificate of said stock to the amount thereof.” At the date of these bonds, the Northern Central Railway Co., was composed of four distinct railway lines, of which the York & Cumb. was one. In 1854, these four companies were consolidated and became one corporation. The legislative Acts of the States of Pennsylvania and Maryland which sanctioned the consolidation, made it one of the conditions of such consolidation, that the property of each company should remain liable for the respective debts and liabilities of that company, unless such debts and liabilities should be assumed by the new company. The articles of union were ratified by the respective companies, and the necessary deeds of conveyance were duly executed. The articles provided sfibstafitially, that after the organization of the new company and the execution and delivery of the necessary deeds of conveyance, they should be merged into one body corporate under the name and style of “The Northern Central Railway Company,” that all the property, rights and privileges belonging to each should be vested in the new company, and the debts and liabilities of each were declared to be, “the debts and liabilities of the consolidated company; subject to the conditions prescribed in, and as the same were provided for and required by the said Acts of consolidation.” B. was cognizant of the terms of the consolidation, assented thereto and was satisfied therewith, and took an active part in effecting the arrangement. From the date of the consolidation in 1854, up to its last-financial statement in 1864, the Northern Central Railway Company charged itself with the twenty-five bonds of the York & Cumb. R. R. Co., held by B. At the time of the consolidation the stockholders of the York & Cumb. R. R. Co., delivered up their stock to be cancelled, and received in lieu thereof the stock of the Northern Central Railway, at the rate of two shares of the latter for one of the former; that being the rate of their relative values as-then agreed on. B. did not then elect to convert his bonds into stock, but continued to hold them until 1863, when he demanded of the Northern Central Railway Co., that they with the money due thereon should be converted into the capital stock of the York & Cumb. R. R. Co. With this demand the Northern Central Railway Co. refused to comply; but offered to convert the same into its own stock dollar for dollar. B. thereupon brought suit against the company to recover damages for such refusal. Held:
    
    That the obligation to convert the money secured by the bonds, into the stock of the York & Cumb. R. R. Co., did not continue after the consolidation had been effected, and B. had no right, as bondholder, to demand such conversion in 1863. p. 569
    *That by the act of consolidation the York & Cumb. R. R. Co. ceased to exist as a separate corporation, so far as respected its power to create or issue certificates of capital stock,  p. 569
    That B., having elected not to have his bonds converted at the time of the consolidation of the companies, when it was practicable, and having acquiesced and participated in the arrangement by which such conversion became impossible afterwards, he is bound by his election and precluded from impeaching the arrangement, which at the time it was made was satisfactory to him.  p. 571
    And that he is not entitled to a reversal of the judgment rendered in his favor for $31,780, because the court below limited his right of recovery to the market value of a certificate of the capital stock of the Northern Central Railway Company, at the time of his offer to surrender, equal in amount to the face of the bonds with the accrued interest thereon up to that date, with such an allowance for interest on said market value as the jury might think proper to give. p. 571
    Appeal from the Superior Court of Baltimore City.
    The cause was argued before Bartol, C. J., Stewart, Miller and Alvey, JJ.
    
      James A. Buchanan and I. Nevitt Steele, for the appellants:
    There was and could have been no merger of the York and Cumberland Rail Road into the consolidation, so as to affect the rights of the appellants’ testator as bondholder. The Acts of the Maryland and Pennsylvania Legislatures, authorizing the consolidation, carefully guard against such a result.
    The language and just interpretation of the clauses of these Acts repudiate any idea of merger in the sense of absolute extinguishment of the original company, so as to operate a legal impossibility of compliance with the bondholders’ demand for an equivalent in the company’s stock. The Acts of consolidation, too, provide that the new corporation was to be composed of the companies cpmprising it, and rebut the idea of merger.
    The existence of the unpaid and unreleased second mortgage of the York and Cumberland Rail Road was sufficient *to prevent any merger. By the terms of the mortgage securing these bonds, the fee simple in all the property of the York and Cumberland Rail Road was, on the 7th of January, 1851, conveyed to Gonder, Burke & Co., as trustees for the holders of the bonds.
    The Pennsylvania Act authorized a union or consolidation, but did not grant to the new company the corporate powers of the lines of road so united. It worked no merger, but created one corporation out of several others. P. W. & B. R. R. Co. v. Maryland, 10 How. 393; Bishop v. Brainerd, 28 Conn. 289; R. R. Co. v. Wheeler, 1 Black, 286.
    The articles of union were signed December 4th, 1854. The Northern Central Railway Company was fully organized on the yth of the same month, by the election of a President, and after this organization, the companies composing the consolidated, company perfected by delivery the conveyances provided for by the 4th Article of union to the Northern Central Railway Company. The Northern Central Railway Company was in existence when these transfers were made to it, and it was bound, therefore, to provide means for fulfilling the obligations it assumed in the 6th Article of union, in accordance with the terms of the Pennsylvania and Maryland Acts. Being in existence when the York and Cumberland Rail Road Company made its assignment to it, the Northern Central Railway Company was bound to have required from the former the reservation and transfer to it of so much of the York and Cumberland Rail Road stock as was necessary to meet the alternative obligation of these bonds, and was bound to have arranged for the conversion of such stock. There was no impossibility in such action on its part. There was only neglect to take such action. 1 Parsons on Contracts, 556; Fischel v. Scott, 80 E. C. L. 69; Wright v. Bundy, n Ind. 398; 2 Redfield on Railways, 656, 662.
    The rule is that the impossibility must exist at the time of the creation of the liability, otherwise the covenantor is liable. *Platt on Covenants, 569, 3 Law Lib. 259; Atkinson v. Ritchie, 10 East, 533; Paradme v. Jane, Alleyn, 27; 2 Parsons on Cont. 672, 673; Addison on Cont. 1123, 1124; Bute v. Thompson, 13 M. & W. 493.
    But the rule which holds the appellee, in any event, is that if the promise can be substantially if not literally executed, performance is not excused. White v. Mann, 26 Maine, 361; 2 Parsons on Contracts, 673; Chapman v. Dalton, Plowden, 284; Holtham v. Ryland, 1 Eq. Cas. Ab. 18.
    It cannot be reasonably said, that there was any impossibility even when the demand was made. For if the York and Cumberland Rail Road Company were not merged, it is still alive under sec. 3 of its charter. It continues to exist " per se
    
    The consolidation of the four companies would have thrown this obligation of the York and Cumberland road upon the Northern Central Company, even had there been no statutory obligation. R. R. Co. v. Winans, 17 How. 39; Bishop v. Brainerd, 28 C01111. 289, 299; Farnmn v. Blackstone Canal Cor. 1 Sumner, 46; R. R. Co. v. Howard, 13 How. 333; North. Cent. R. R. Co. v. Prentiss, 11 Md. 126; State v. North. Cent. R. R. Co. 18 Md. 211.
    The principle is that the four companies entered into a contract, of which the Northern Central Company reaped the benefit; and it is, therefore, bound to give the appellants all the advantages of the stipulation. Gooday v. R. R. Co. 15 E. L. & E. 596; Preston v. R. R. Co. 7 E. L. & E. 124; Gould v. Lang-don, 43 Pa. St. 365;. Edwards v. R. R. Co. 1 Mylne & Craig, 650; Lindsay v. R. R. Co. 19 E. L. & E. 87; R. R. Co. v. Howard, 13 How. 307, 333; Pierce Am. R. R. Law, 503; R. R. Co. v. Cochrane, 24 E. L. & E. 495; R. R. Co. v. Goodwin, 3 Exch. 320; 2 Redfield on Railways, 659, sec. 254; *R. R. Co. v. Hunt, 20 Ind. 457.
    The measure of damage would seem to be the value on the day of the demand. Cockerell v. Van Diemen’s Land Co. 86 E. C. L. 454; Van Diemen’s Land Co. v. Cockerell, 87 E. C. L. 739; Peterson v. Ayre, (note,) 76 E. C. L. 369; Shaw v. Holland, 15 M. & W. 136; Pinkerton v. R. R. Co. 42 N. H. 424.
    
      Daniel M. Thomas and William Henry Norris, for the appellee :
    The second and third prayers of the appellants are obnoxious to the objection that there was no evidence to support them. No evidence was offered to show the value, relative or otherwise, of York and Cumberland stock on the day of the offer to surrender the bonds, or at any other time subsequent to the consolidation. But the object of the appellants in each of these prayers was to argue before the jury that the relative value of the stock of the York and Cumberland Rail Road and that of the appellee, as shown by the settlement in 1854, furnished a standard in itself, independent of any other evidence by which they might fix the value of York and Cumberland stock in the year 1864. These prayers were further objectionable, because they claimed that the appellee’s obligation was to convert the bonds into stock of the York and Cumberland Rail Road Co., which became an impossibility by the very nature of the basis on which the consolidation was effected. The counter proposition to this was contained in the appellee’s fourth prayer, which claimed that the appellee’s obligation was to convert into its 
      
      own stock; and that the extent of its liability to make such conversion, was (in the absence of some express stipulation to the contrary) commensurate only with its liability for the indebtedness on the bonds assumed by it, that is to say: at the rate of one dollar of its stock for one dollar of its indebtedness.
    The Pennsylvania Statute before referred to, made it a com dition precedent to the destruction of the liability of the com *solidating companies for their existing contracts, engagements and liabilities, that such contracts, engagements and liabilities should be adopted and assumed by the consolidated company “ in such manner and to such extent as shall be satisfactory to all parties having an interest in the same.” The two material points of inquiry in the case, then, are:
    ist. Was the assumption of liability for these bonds by the defendant, as contained in the articles of union, satisfactory to the appellant’s testator, the only party " having an interest in the same ? ”
    
    2nd. Was the extent of the liability so assumed, correctly expressed in the appellee’s fourth prayer?
    1. That the arrangement embodied in the articles of union zvas satisfactory to Mr. Barnum, is clear beyond dispute.
    He was a stockholder of the Susquehanna Rail Road Company, and one of the committee appointed on behalf of that company to arrange the terms on which the consolidation was to be'effected. He was also a stockholder of the, York and Maryland Line Rail Road Company, and as such took part in the proceedings by which the articles of union were unanimously adopted by that company. The, assent of the stockholders of the several companies is also asserted in the articles of union. And it also appears that he not only assented to the consolidation as effected, but. was the very person who proposed the basis on which the companies should consolidate. The conclusion, therefore, is irresistible, that whatever may be the legal effects, consequences and incidents of the consolidation, he was aware of and assented to them, and therefore they are to be regarded, in the language of the Act of Assembly, as “ satisfactory ” to him.
    2. What, then, was the effect of the consolidation upon the rights of the appellants’ testator as holder of these convertible bonds ?
    
      By entering into the articles of union and executing the deed of the nth December, 1854, of all its property and estate, the York and Cumberland Rail Road Company became '^merged into the Northern Central Railway Company, and from that time ceased to exist. It no longer possessed any property or franchises, or any of the attributes of a body corporate, and to all intents and purposes its corporate life was destroyed. Slee v. Bloom, 19 John. 456; Canal Co. v. R. R. Co. 4 G. & J. 121, 122; Mumma v. Potomac Co. 8 Pet. 281.
    • If this be the legal effect of the consolidation, the subsequent conversion of these bonds into York and' Cumberland stock was thereby rendered impossible. No power to issue such stock was reserved in terms to the York and Cumberland Company, or conferred upon the Northern Central Railway Company, by the articles of union or otherwise, and such omission, it is to be presumed, was intentional; as also that the appellants’ testator did not intend to impose, nor the appellee to assume an obligation which it was impossible for it to comply with; and, therefore, that it was not within the intention of the parties that these bonds should be convertible by the appellee into York and Cumberland stock, but that the conversion which it undertook to make, was one that was possible of performance. 2 Parsons on Cont. 673.
    In other words, the obligation which the appellee assumed in regard to these bonds, was either to pay 'them at maturity, or, if desired by the holder, to convert them into its own stock. And if such were the import of the articles of union, the conclusion is irresistible,.that in the absence of an express provision to the contrary, such obligation would have been gratified by the appellee’s delivering to the appellants’ testator an amount of its own stock equal to the amount due on the bonds at the date of the offer to surrender them.
    The appellee’s fourth prayer also correctly stated the measure of the appellants’ damage to be the market value, at the time of the offer to surrender, of an amount of stock equal to the amount of indebtedness evidenced by the bonds, together with such allowance for interest as the jury might think proper to make. Cannell v. M’Clean, 6 H. & J. 301; *Gray v. Bank, 3 Mass. 364-390; Sargent v. Ins. Co. 8 Pick. 90-100; Hussey v. Bank, 10 Pick. 415; Wyman v. Am. Powder Co. 8 Cush. 168.
    
      
      а) As to the right of one corporation to own and vote the stock of another corporation, and the right of corporations to sell out to other corporations, see Stokes v. Detrick, 75 Md. 256; Davis v. Electric Light Co., 77 Md. 35; Glymont Co. v. Toler, 80 Md. 279; but cf. Healey v. Loveridge, 72 Md. 232. In Booth v. Robinson, 55 Md. 419, it was held that corporations, unless expressly prohibited, have such right by implication, without its being expressly authorized. But cf. State v. Consolidated Coal Co., 46 Md. 1, where it is held that the mere fact that the charter of a corporation conferred upon it the power to purchase railroads, did not imply a grant of power to railroads within the State to sell their roads to that company; such powers, if they exist, must have been otherwise conferred. As to the right of corporations to consolidate, see Code of Pub. Gen. Laws, Art. 23, sec. 39; Act of 1892, ch. 666; as to j-ailroads consolidating, see Code, Art. 23, sec. 190; Act of 1890, ch. 553. As to the liabilities of consolidated corporations, for torts, etc., see State v. Balto. and Lehigh R. R. Co., 77 Md. 489; see also cases cited in McCann v. B. & O. R. R. Co., 20 Md. 202, note (b).
    
    
      
       As to estoppels, see Alexander v. Walter, 8 Gill, 185; for later cases, see Albert v. Bank, 2 Md. 160-161, note.
    
   Bartol, C. J.,

delivered the opinion of the court.

This suit was brought by the appellants’ testator, in his lifetime, to recover damages for the alleged refusal by the York and Cumberland Rail Road Company, to convert into its capital stock certain.of its bonds which he held and which were payable to Gonder, Burke & Co., or bearer. He held twenty-five of the bonds, each for $1,000, with fifteen interest warrants, of $30 each, on each bond, dated the 7th of January, 1851, bearing interest at six per cent, per annum, payable semi-annually, and to mature on "the 7th of January, 1871. They were secured by a second mortgage of all the property and effects of the York and Cumberland Rail Road Company, a corporation chartered by the State of Pennsylvania in 1846. Each of the bonds contained the following clause: “'And the said Gonder, Burke & Co., or any holder of this bond, are and shall be entitled to convert this bond, and the money due thereon, into an equal amount of the capital stock of the York and Cumberland Rail Road Company, on the surrender to said Company of this bond; whereupon the said holder shall receive from said Company a certificate of said stock to the amount thereof.” The alleged breach of this undertaking forms the ground of the present suit. It appears by the proof that, on the 15th of May, 1863, the appellants’ testator, for the first time, made a demand upon the appellee for the conversion of his bonds into the stock of the York and Cumberland Rail Road Company, which was refused; the appellee offering to convert the same into its own stock, dollar for dollar.

At the date of the bonds, the line of communication now known as the Northern Central Railway Company, was owned by four distinct corporations, viz: The Baltimore and '“Susquehanna Rail Road Company, incorporated by the State of Maryland in 1828; the York and Maryland Line Rail Road Company, incorporated by the State of Pennsylvania in 1832; the York and Cumberland Rail Road Company, chartered by the latter State in 1846, and the Susquehanna Rail Road Company, chartered by the same State in 1851; the-rail roads of the three last mentioned lying entirely within the limits of Pennsylvania. In the year 1854, the Northern Central Railway Company (the appellee) was formed by the consoih dation of the four companies above named. The States of Maryland and Pennsylvania respectively, gave their legislative sanction to such consolidation; the former, by the Act of January session, 1854, ch. 250, and the latter, by an Act passed May 3rd, 1854, No. 531. These Acts made it one of the conditions of consolidation, that the property of each company should remain liable for the respective debts and liabilities of that company, unless such debts and liabilities should be assumed by the new company.

The provisions of the Pennsylvania Statute on this subject, were as follows:

“ First. That all existing contracts, engagements and liabilities of each of the said companies, shall continue to bind them respectively, and their property and effects, as fully as before they shall have become consolidated into one company; or that such contracts, engagements and liabilities shall be duly adopted and assumed by the consolidated company, in such manner, and to such extent, as shall be satisfactory to all parties having an interest in the same.”

The contracts and liabilities of the York and Cumberland Rail Road Company, and of the appellee upon its assumption thereof, must be governed by the provisions of the Pennsylvania Statute, as the former company was chartered by, and lay wholly within, that State.

No question arises in this case upon the regularity and binding force of the proceedings by which the several companies formed the consolidation, and conveyed to the new *company all the estate, property and rights belonging to them respectively. The negotiations began in July, 1854, and culminated in the adoption of articles of union on the 4th day of December, 1854, which were duly ratified by the respective companies, ^nd the necessary deeds of conveyance were executed in December, 1854.

Without reciting here at length the articles of union entered into between the several companies, by which their consolidation was effected, it is- sufficient to say, that they provide in substance that, after the organization of the new company, and the execution and delivery of the necessary deeds of conveyance, they shall be merged into one body corporate under the name and style of “ The Northern Central Railway Company; ” that all the property, rights and privileges belonging to each, shall be vested in the new company, and the debts arid liabilities of each are declared to be “ the debts and liabilities of the consolidated company, subject to the conditions prescribed in, and as the same are provided for and required by the said Acts of consolidation.”

The record show's that, from the date of the consolidation in 1854, up to its last financial statement in 1864, the appellee has charged itself with the $25,000 of bonds of the York and Cumberland Rail Road Company held by the appellants’ testator. It also appears from the proof that, at the time of the consolidation, the stockholders of the York and Cumberland Rail Road Company delivered up their stock to be cancelled, and received in lieu thereof the stock of the appellee, at the rate of two shares of the latter for one of the former, that being the rate of their relative values, as then agreed on. The appellants’ testator did not then elect to convert his bonds into stock, but continued to hold them until 1863, when, as we have before said, he made the demand on the appellee for their conversion, and brought this suit to recover damages for the refusal to comply with his demand.

This theory of the appellants’ case, as stated in their brief, is, that “ being entitled at any time before maturity, to concert the bonded debt into an equal amount of stock, the consolidation of the York and Cumberland Rail Road Company with the Northern Central Railway Company could not affect their testator’s guaranteed rights as bondholder; and that being entitled, as of the date of the demand, to so many shares of the stock of the York and Cumberland Rail Road Company, one of which ivas, by the articles of union, equivalent in value to two shares of the Northern Central Railway Company he was entitled at the date of his demand and offer to so many specific shares of the York and Cumberland Rail Road Company, or to what would represent them in value; that is to say, double their amount in the stock of the Northern Central Railway Company.”

The questions presented on this appeal have been somewhat narrowed by the course of the trial below. The Superior Court granted the first prayer of the appellants which asserted their right to recover upon the finding by the jury of the facts therein stated. No exception to the granting of that prayer having been taken by the defendant, we are not called on to review it on this appeal, except so far as the legal proposition, therein contained, is connected with the decision upon the other prayers embraced in the exception. These relate to the rule or measure of damages.

By the second prayer of the appellants they asked the court to direct the jury that the measure of damage to be awarded to them was the value, at the time of the demand and refusal, of so much of the stock of the York and Cumberland Rail Road Company, as would be equal, at par, to the amount of debt secured by the bonds; and- in estimating such value, the jury might consider the market value of the stock of the defendant on that day, and also the relative value of the stock of the York and Cumberland Rail Road Company and of the stock of the defendant, as shown by the evidence in the cause.

The third prayer asserted the measure of damages to be the value of the stock of the York and Cumberland Rail Road Company at the time of the demand and refusal, to be estimated from all the evidence in the cause.

*In our opinion the Superior Court committed no error in refusing to grant these instructions. Apart from other objections to them, it may be remarked that there was no evidence in the cause from which the jury could estimate the value of the stock of the York and Cumberland Rail Road Company, at the time of the demand; no such stock was then in existence, nor had any existed in fact after the consolidation of the companies ; at that time, which was nearly ten years before the offer to convert, the relative value of that stock, as compared with the stock of the appellee, had been fixed and agreed on for the purposes of the consolidation. But that could furnish no standard whatever for estimating either the actual or relative value of the stock in May, 1863. To have granted these prayers would have left the jurjr to mere speculation and conjecture, and without any evidence to guide them in making up their verdict.

But these prayers were objectionable on other grounds. They both rest upon the legal propositions that the obligation to convert the money secured by the bonds, into the stock of the York and Cumberland Rail Road Company, continued after the consolidation had been effected, and that the right of the appellants’ testator, as bondholder, to demand such conversion, was a subsisting right in May, 1863, notwithstanding all the facts disclosed by the evidence.

We do not concur in that view, but are of opinion that by the act of consolidation the York and Cumberland Rail. Road Company ceased to exist as a separate corporation so far as respected its power to create, or issue certificates of capital stock. By the terms of the consolidation, all its shares of capital stock were actually surrendered up and cancelled, and thereafter all its property and franchises were represented by the capital stock of the Northern Central Railway Company, the new corporation, to which all its property had been transferred. It is true all its debts, liabilities and obligations were assumed by the new corporation, and among them the liability and obligation created by the bonds. That appears on the *face of the bonds, to be to pay a certain sum of money with interest, or to convert the same into stock of the York and Cumberland Rail Road Company, at the option of the holder. The primary object of the bonds was to secure the payment of the money, while they gave to the holder the alternative right to convert. This last has become impossible by the act of consolidation, for there is no such stock nor any power to create it. What then is the consequence? The appellants’ counsel have argued that such impossibility does not excuse either the company which issued the bonds, or the appellee which assumed the obligation, because it is said such impossibility, if it exists at all, has arisen from their own act; and it has been further argued that provision might have been made in the articles of union, for the reservation or transfer to the new company of so much of the stock of the York and Cumberland Rail Road Company as might be required to meet the alternative .obligation of the bonds. But it appears from the proof in the cause, that the appellants’ testator was cognizant of the terms of the consolidation, assented thereto, and was satisfied therewith, and took an active part in effecting the arrangement. Ele was a stockholder of the Susquehanna Rail Road Company, and one of the committee appointed on behalf of that company to arrange the terms of the union. He was a stockholder of the York and Maryland Line Rail Road Company, and as such took part in the proceedings by which the articles of union were unanimously adopted by that company. The articles of union, on their face, declare that the stockholders of the several companies assented thereto. These facts, if found by the jury would be conclusive to bind the appellants’ testator, and estop him from claiming against them. By the words of the Pennsylvania Statute above cited, the appellee was bound to assume the existing contracts, and liabilities of the consolidating companies “ in such manner as would be satisfactory to all parties having an interest in the same.” If the terms of union were satisfactory to the appellants’ testator, and he acquiesced therein, he is *bound by all their legal consequences and effects. .He had at that time the option to have his bonds converted into stock, according to their terms, having elected not to do so when it was practicable, and having acquiesced and participated in the arrangement by which it became impossible afterwards to perform the alternative obligation pf the bond, he is bound by his election and precluded from impeaching the arrangement, which at the time it was made was in the words of the statute satisfactory to him. For these reasons we affirm the ruling of the Superior Court upon the second and third prayers of the appellants.

We are also of opinion that the appellants are not entitled to a reversal of the judgment on account of any thing contained in the appellee’s fourth prayer which was granted. Having before said that the appellants were not entitled to claim damage on the basis of a supposed right in their testator to claim a conversion of the bonds into the stock of the York and Cumberland Rail Road Company, at the time when he made the offer, which right we have said did not then exist, it follows that ho injury was done them by instructing the jury in the language of the fourth prayer, that even if the defendant was bound to convert the bonds into stock at the time the offer was made, its obligation would have been discharged by delivering a certificate of its own capital stock of an equal amount with the principal of the bonds and the interest due thereon, and that consequently the appellants could only recover the market value of such certificate at the time of the offer with such allowance for interest as the jury might think proper to give.

Under this instruction the appellants recovered the full measure of damage to which they could in any event be entitled, and there is therefore no ground for reversing the judgment.

Judgment affirmed.  