Green v. Dyersburg

HAMMOND, District Judge. Some of the grounds of this demurrer, as stated, are rather in the nature of replications, but I shall treat it as raising the questions made in the argument. The first question is, as to the power of the town to issue these bonds. The supreme court have declared that “a municipal corporation cannot issue bonds in aid of extraneous objects without legislative authority, of which all persons dealing with such bonds must take notice at their peril.” Town of South Ottawa v. Perkins, 94 U. S. 260-262. And they are equally invalid in the hands of innocent purchasers. Marsh v. Fulton Co., 10 Wall. [77 U. S.] 676. The argument of the defendant’s counsel denying the legislative authority to issue these bonds is based upon a distinction between paying for a subscription to the capital stock of the railroad company by levying taxes and paying the money, and issuing bonds in payment of the subscription; and it is contended that there being no express power granted to issue bonds in payment of subscription to stock, none will be implied; and the case of Police Jury v. Britton, 15 Wall. [82 U. S.] 566, and the eases cited in Dill. Mun. Corp. § 407, and note, and Folsom v. School Dist. [91 Ill. 402], are relied on. The plaintiff contends that the statutes referred to in the statement of the case, confer express power to issue these bonds, and, if not, then that the power is a necessary implication from the authority given to make the subscription to the capital stock of the railroad company. The act of March 13, 180S. amending the Code, would undoubtedly have been sufficient to support these bonds, if it had not been subsequently modified by the act of December 9, 1S6S (chapter 11, § 26). The act of December 16, 1871, does not confer any new power, or enlarge the powers of the town in the matter of issuing bonds. It clearly contemplates subserij)tion under the Code, g 1142 et seq., and only removes the restrictions there found as to the amount allowed to be subscribed by the town. The recital in the record of the town proceedings referring to the election of September, 1871, and the act of December 16, 1871, authorizing them to re-vote the subscription, shows conclusively that the town authorities supposed that they were making this subscription under the provisions of the Code, § 1142 et seq., as modified by the special- acts relating to this particular town, as no doubt they were. Neither is there anything in the act of December 15, 1871 (chapter 129), which confers on this town the power to issue these bonds, nor anything from which such power may be implied. The act of February 26, 1869 (chapter 59, § 20), as modified by the act of February 8, 1870 (chapter 55, § IS), unquestionably authorizes the town to issue short bonds, whatever that may mean, bearing six per cent, interest, “in anticipation of the collection of the annual levies.” By the very terms of these acts the. subscription is payable in four or six years, and I think the proper construction is, that the bonds shall not be longer running to maturity than the time within which the subscription is payable. The bonds are only to anticipate the annual collections of taxes to pay the subscription, which must all be paid “in not exceeding” four or six years. The legislature did not contemplate that the people should be burdened with a long debt, bearing interest from date, when the statute required that the taxes to pay the subscription should be levied and paid within a time specified in the act itself. If bonds were issued under the power conferred by these statutes, necessarily they must be payable when the taxes levied to pay them are collected, for it is not to be supposed that the town would be required to levy and collect the taxes and keep them in the treasury idle to meet bonds maturing years after the collections are made. It is not like the case of State v. Anderson Co., Sup. Ct. Tenn. 1874, at Knoxville [8 Baxt. 249], where the statute authorized thirty years’ bonds to be issued, and the county in exact compliance with the statute issued bonds for that time, but upon a vote of the people proposing to pay the subscription in six annual installments. At the time the vote was taken in that case, the statute made no other requirement as to the time of payment than that not more than thirty-three and one-third per cent, of the subscription should be collected in one year. Act 1S52, c. 117, g 8 [Acts Tenn. 1S51-52, p. 163], Code, § 1154. Here the requirement of — 1103 — the statute was that the amount should be paid in six years. There a subsequent statute varied the terms which the vote had fixed; here the vote varies the terms which the statute has fixed. Nor is this like the case of Louisville & N. R. Co. v. Davidson Co., 1 Sneed, 638, where it was held that the act of 1S52 did not prohibit the county from making more than three installments. A comparison of section 8, c. 117, of the act of 1S52, with section 20, c. 59, of the act of 1809, and with .section IS, c. 55, of the act of 1870, shows that while, under the act of 1852, there was no other restriction than that the time was not to be less than three years, under the two latter acts the time fixed is “not exceeding” six years. This is the necessary construction of the two acts of 1809 and 1870 taken together, even if it be admitted that the act of 1870, applying to “any city or incorporation” was intended to modify the special act of 1869 applying only to the town of Dyersburg. In this view the departure from these acts cannot be regarded as falling within the fourth resolution of the court in Louisville & N. R. Co. v. Davidson Co., supra. The principle of directory statutes cannot be applied here, and the authority conferred must be pursued in its material requirements. Winston v. Tennessee & P. R. Co., 1 Baxt. 61. Besides these acts only allowed six per cent, interest, and the bonds here bear seven per cent This cannot be a change within the discretion of the town to make — it is an additional burden, not a beneficial modification of the requirements of the statute. I am not unmindful of the conventional interest act of February 23, 1870, c. 69 [Laws Tenn. 1870, p. 87], allowing an Increase by contract to any rate, not greater than ten per cent It will be observed that the first of these Dyersburg acts fixed no rate of interest for the bonds, and the second, limiting the rate to six per cent, was passed only a few days before the conventional rate of interest act just referred to, the latter being a general public law and the former a special private act I do not think, under the general law, the town could enlarge the rate of interest. It was a municipal corporation acting under a special grant of power which could not be exceeded. The result is that these bonds, being for a longer time and greater rate of interest than allowed under these two acts, cannot be supported by them. Bell v. Mobile & O. R. Co., 4 Wall. [71 U. S.] 598; New Albany v. Burke, 11 Wall. [78 U. S.] 96. The case does not come within the case of Township of Rock Creek v. Strong, 96 U. S. 271, and Commissioners of Marion Co. v. Clark, 94 U. S. 278, where-there was a substantial compliance with the legislative requirement. Dill. Mun. Corp. .§ 414. It may be that if the bonds had been issued according. to the terms of the act they would be valid pro tanto for six per cent, interest, as ruled in City of Quincy v. Warfield, 25 Ill. 317; but in the exercise of these special powers to impose the burdens of taxation upon a community, corporations should be held to a strict exercise of them, particularly in view of the peril to which the community is subject by a fraudulent use of such powers. Any purchaser of these bonds in looking to these statutes would see at once that the bonds were not such as the statutes contemplated. Marsh v. Fulton Co., supra. The remaining claim for express power to issue these bonds is based on the act of J an-uary 23, 1871, c. 50 (Code, § 491a). It is argued for the plaintiff that the last élause of the second sub-section of section 1 of that act authorizes a town to subscribe for stock, and that the clause, immediately preceding, authorizes the board of mayor and aldermen to issue bonds in payment. ' It is manifest, however, that this construction is strained and wholly unauthorized by eittier the grammatical structure of the section or by any natural interpretation of it. The section follows identically the language of the constitution in its restrictive clauses, and it is evident that both intend to indicate two corporate methods of giving aid to other persons or corporations; one of these methods— that of becoming a stockholder in a company —had been, so far as relates to encouragement of railroad building by stock subscriptions, regulated by a general law, since the act of January 22, 1S52 (chapter 117); often, however, modified by special acts in particular cases (section 1142 et seq.), the’ other method, that of giving or lending the credit of the city or town, had never been the subject of any general statute, and was always regulated by special acts in particular cases. The two methods are entirely distinct in their nature and essential ingredients. Louisville & N. R. Co. v. State, 8 Heisk. 663, and cases cited arguendo, p. 667. It happens that as to railroad building, they both aid and encourage it; but the constitution and the act apply to all corporate contracts within the scope of “corporate purposes” and to none other. Neither confers any authority either to lend credit or subscribe stock. But if the authority exists elsewhere this act regulates its exercise according to the constitution and designates the county court or the board of mayor and aldermen as the agents who shall issue the bonds when credit is lent or given. The validity of these railroad bonds and subscriptions all depend on the construction given by the supreme court to the old constitution, that the promotion of railroads is a legitimate “corporate purpose,” and not upon any legislative power to authorize corporations to engage in extraneous •enterprises. Nichol v. Mayor, etc., of Nashville, 9 Humph. 251; Louisville & N. R. Co. v. Davidson Co., supra. Interpreting the constitutional restrictions of 1870 and this act passed to enforce them by the previous legislative and judicial decisions. this giving or lending the credit of a county, city or town to some other person. — 1104 — company, association or corporation means supporting the credit of such other person, etc., by guaranties, indorsements or contracts of like character, and possibly donations or loans in aid of the enterprise, which must be a corporate purpose. Dill. Mun. Corp. § 393; Nichol v. Mayor, etc., of Nashville, 9 Humph. 231, and cases cited in Cooper’s edition; Louisville & N. R. Co. v. Davidson Co., supra. The credit cannot be given or lent nor the subscription be made upon the authority of this act, for it confers none. It regulates in certain respects the general subject, aud harmonizes all the statutes with the constitution. When the corporation subscribes for stock, it must follow the general law on that subject, or some special law provided for it. The only effect of this act, or the constitutional provision referred to in it on the general law — and it so affects all special laws as well — is to abrogate all provisions allowing the subscription for stock to be made on less than a three-fourths vote of the qualified electors, voting at the election in favor of it In all other respects the statutes authorizing subscriptions remain as they were before this act was passed. I am, therefore, of opinion that there is no express authority given by any statute to the town of Dyers-burg to issue these bonds. It is insisted by the plaintiff that there is a power to pay the subscription in bonds to bo implied from the authority to make the subscription, whether we look to the authority as contained in the railroad charter or to the general law authorizing such subscriptions. The authorities on this question are conflicting. Dill. Mun. Corp. §§ 83,106; Dill. Mun. Bonds, § 62; Daniel, Neg. Inst §§ 1530, 1532, 1533. I do not think there is. any case decided by the supreme court of the United States which supports such an implied power under a general law containing the restrictions found in these Tennessee statutes. Code, ■§§ 1142-1165. And where the mode of payment is pointed out as is done here, I hold that any other mode is excluded, and that a bare power to subscribe for stock does not imply a power to pay for it in negotiable bonds issued to the railroad company on such terms as the parties may agree upon. The intimation in Hitchcock v. Galveston, 96 U. S. 341, if it does not militate against such an implied power is the latest indication in favor of it, but I find no decision of that court sustaining it In Seybert v. Pittsburg, 1 Wall. [6S U. S.] 272, the implication was upon an act authorizing a subscription “as fully as any individual,” and in Meyer v. Muscatine, Id. 384, the implication was upon a power “to borrow money,” coupled with a general law authorizing railroads “receiving bónds'of any city” to sell them at a discount. Id. 221. In Rogers v. Burlington, 3 Wall. [70 U. S.] 654, and Mitchell v. Burlington, 4 Wall. [71 U. S.] 270. the implication was upoD a power “to borrow money for any public purpose,” and in Smith Co. v. Sac, 11 Wail. [78 U. S.] 139-156, the statement of the proposition appears in the dissenting opinion only, the case being decided on other grounds. In Lynde v. Winnebago Co., 16 Wall. [83 U. S.] 6, the implication was upon a statutory power to borrow money. In the Tennessee statutes, now under consideration, there is no power given to borrow money, nor to subscribe for stock as fully as an individual. On the contrary, the subscription for stock is regulated by a statute prescribing the mode of payment. The power to borrow money will nut be implied. Mayor v. Ray, 19 Wall. [60 U. S.] 468, 475. It may be doubted if any case hereafter will extend this implication of power to issue bonds any further than it has already gone. 2 Daniel, Neg. Inst. §§ 1523, 1532; Dill. Mun. Bonds, § 6. The legislative construction in Tennessee is against any such implied power; and ever since the act of January 22, 1852, granting power to subscribe stock as therein specified, it has been the constant practice to confer express power to issue bonds to pay for stock subscriptions whenever thought advisable, as was done by the act of December 30, 1853, amending the general act of January 22, 1852, to allow Sumner county to pay her subscriptions. Louisville & N. R. Co. v. Davidson Co., 1 Sneed, 661. Very many such acts have been passed, and as we have seen, there is special legislation as to Dyersburg. This would seem to exclude any legislative sanction of the doctrine of an implied power based on the general authority given to make these subscriptions. It is said by the supreme court of Tennessee in Moss v. Harpeth Academy, 7 Heisk. 283, of a private corporation, that there is an implied power to borrow money to carry out the purposes of its organization, and it is shown by a note to that case, that other courts have applied this doctrine to municipal corporations, notably the case of State v. Pinto, 7 Ohio St. 358, cited by counsel here. And see, also, Dill. Mun. Corp. §§ 106, 107, and notes, and § 407. There seems to me to be a vast distinction between using private funds, and implying this power to borrow money upon negotiable bonds against a body of people who have organized a municipal corporation with limited powers of taxation for special purposes. Vet, the supreme court of Tennessee have said in the case of Adams v. Memphis & L. R. Co., 2 Cold. 645-650, that there is an implied power to borrow money for corporation purposes belonging to municipal corporations. And, relying upon the settled doctrine in Tennessee that railroad building is a corporate purpose, the learned counsel for plaintiff presses with great earnestnessthedoctrinesof that case. We are asked, upon its authority, to imply a power to borrow money for this corporate purpose, and then again to imply from the power to borrow money the power to issue negotiable bonds. In Nashville v. Ray, 19 Wall. [60 U. S.] 479. it is said that this declaration of the supreme court of Ten — 1105 — nessee in Adams v. Memphis & L. R. Co., supra, was not necessary to the decision of the case, as it clearly was not. The case of Nichol v. Mayor, etc., of Nashville, supra, does not support the implied power to issue bonds where authority to subscribe stock is given under a statute appointing the mode of payment. In that case there was express power to issue the bonds, and even if it had been necessary to their support to rely on any implication of power, the charter of the railroad company in that case authorized corporations to subscribe stock “with all the rights of any other stockholder.” This is directly within the case of Seybert v. Pittsburg, supra, where the words were “as fully as any individual.” Here there are no such words, either in the railroad charter or in the act of 1852, under which this town acted. There are decided expressions in the case (pages 202, 203) in favor of powers by construction, but confessedly they did not arise, and we have the authority of the same court for saying that “the reasoning, illustrations or references contained in the opinion of a court are not authority, not precedent, but only the points in judgment arising in the particular case before the court.” Louisville & N. R. Co. v. Davidson Co., supra. The case of State v. Anderson Co., supra, is much relied on by plaintiff. This is also a case in which there was express power to issue the bonds, and they were issued in exact conformity to the statute. There is a very strong expression in the opinion in this case in favor of the incidental right to issue bonds or other commercial evidence of debt, wherever the power to contract is given, but it is manifest that the case is not an adjudication on the point, and it could not have been, for there was no want of a positive grant of power to issue the bonds, and the decision is put upon that ground. I am unwilling to adjudicate in the absence of a controlling authority that a municipal corporation has power to issue coupon bonds in payment of any debt it is authorized to contract. No case that I have found decided, either by the United States supreme court or the supreme court of Tennessee, has gone that far as an adjudication. And after a most patient and deliberate examination of the subject, 1 am of the opinion that the defendant corporation had no power to issue these bonds to be implied from the authority to subscribe stock. This judgment is supported by the reasoning in the case of Gause v. Clarksville [Case No. 5,276], where the question is examined by Judges Dillon and Treat upon authority and principle. The opinion of one of the learned judges in that case, as shown in the second division of the opinion, would seem to be against the views here expressed, but I think there is here in Tennessee no universal practice to issue bonds without si>ecinl authority, as in Missouri. in payment of stock subscriptions. And I have endeavored to show that the United States supreme court have not yet decided in favor of any such implication of power. Until it decides the point, I cannot yield my own strong convictions against the doctrine, acquired by this investigation. I have also considered the other question, raised by the pleadings, as to the effect of the condition mentioned in the face of the bond. These coupons not containing on their face the condition expressed in the bonds, unless the reference to the number of the bond is to be so taken, the first question argued is, whether they are affected by the recital in the bond? If this can be regarded as an open question since the case of McClure v. Township of Oxford, 94 U. S. 429, it is not raised by the demurrer. Harshman v. Bates Co., 92 U. S. 569. The third, fourth and fifth pleas aver that the plaintiff had notice of the condition and its breach. He may have had such notice otherwise than by the expression of this condition on the face of the bond. The demurrer admits this averment of notice, and the only question is, whether the facts stated constitute a defense. It is not denied by the plaintiff that, if this be a condition precedent to the payment of the bonds, they are not negotiable and are subject to all the defenses which could - have been made against them in the hands of the original holder. Indeed, as the pleas charge notice of the failure to comply with the contract on the part of the railroad company, the case must be treated as if the railroad company itself were the plaintiff. So many decisions have been made upon the vexed question of what are. and what are not. dependent covenants, that, being irreconcilable with one another, ithey rather perplex than aid the judgment in determining a given ease. That the intent of the parties is to control is a universal rule. Officer v. Sims, 2 Heisk. 501; Grant v. Johnson, 5 N. Y. 247, 255. The intention is to be ascertained from the contract; there is nothing technical in it The parties have a right to make their agreements dependent or independent, and as they make them the courts are bound to enforce them. Commissioners of Clermont Co. v. Robb. 5 Ohio. 491. Where parties have made an express' contract none can be implied, is an axiom in the law particularly applicable to this subject. Cutter v. Powell, 2 Smith, Lead. Cas. 1; Hudson Canal Co. v. Pennsylvania Coal Co., 8 Wall. [75 U. S.] 276. In the notes to Pordage v. Cole, 1 Saund. 319, 320a, Sergeant Williams has deduced from the cases certain rules for ascertaining the intention, which have all the force of judicial decision because they have been referred to and adopted by almost every court considering the subject from that day to this. But in the application of these rules the courts have great difficulties, and there is no subject in our jurisprudence more beset with conflicting decisions. The difficulty is determining whether one promise be the consideration for another, or whether the — 1106 — performance and not the mere promise be the consideration. As in this case, was the construction of the railroad to Dyersburg or the undertaking of the company to construct it to that place the consideration of these bonds? It is said that this is to be determined by the intention and meaning of the parties as shown in the face of the instrument, and by the application of common sense to each particular case. Chit. Cont. (11th Ed.) 1082; Stavers v. Curling. 3 Bing. N. C. 353; Taylor v. Mason, 9 Wheat. (22 U. S.] 327. The court will not coniine itself to particular expressions but will collect the intention from the whole instrument. Chit. Cont. 122. And every part must have its effect. Id.; Henschel v. Mahler, 3 Denio, 428, 431; Heywood v. Perrin, 10 Pick. 228. Where there are mutual covenants or acts they are construed to be dependent, unless a contrary intention appears, and there is good sense as well as practical convenience in the rule. McNeill v. Magee [Case No. 8,915], The supreme court of the United States »have said that although many nice distinctions are to be found in the books upon the question “whether the covenants or promises of the respective parties to the contract are to be considered independent or dependent; yet, it is evident the inclination of courts has strongly favored the latter construction, as being obviously the most just. The seller ought not to be compelled to part with his property without receiving the consideration; nor the purchaser to part with his money without an equitable return.” Bank of Columbia v. Hagner, 1 Pet. [26 U. S.] 455, 465. This is said in a case of vendor and vendee of an estáte, but it applies as well to all contracts. It is undoubtedly true that in cases involving the forfeiture of estates, and perhaps in ordinary commercial contracts, where the language of an agreement can be resolved into a covenant, the judicial inclination is to so construe it. And where a party has another remedy for an injury inflicted by the non-performance of a condition, which may be compensated in pecuniary damages, ne will be remitted to that remedy. Paschall v. Passmore, 15 Pa. St. 293, 307. The reason of. this distinction is stated to be that the other consideration prevents the court from dealing out justice to the parties according to the equities of the case. Front Street. M. & O. R. Co. v. Butler, 50 Cal. 575. But this doctrine appertains rather to courts of equity than those of law, and can never be invoked to destroy the clear intention of the parties, and where the enforcement of the rule would operate to inflict injustice on the other side. In a case like this there can be no compensation in damages. How could this town be compensated in damages by a failure to build a railroad to it? Nothing less than money enough to build the entire road from Padu-cah to Memphis would answer as compensation, in case of total failure to build it. The object of this subscription was to secure the road to that town, and whatever they may have technically expressed by their contract. I have no doubt they intended to secure the construction of this road by making their contribution dependent upon the performance of the condition, and did not intend to rely upon any mere covenant on the part of the railroad company secured against a breach by an action for damages. Where the acts stipulated to bo done are to be done at different times the stipulations are to be construed as independent of each other. Goldsborough v. Orr. 8 Wheat. [21 U. S.] 217. This rule is not inflexible but yields wholly or in part to the intention of the parties, and the good sense and equity of the case. Cunningham v. Morrell, 10 Johns. 203, and cases cited in note to Wilks v. Smith, 10 Mees. & W. 360, by Hare & Wallace. A more practical test for all cases is. whether the defendant reasonably appears to have looked to the plaintiff’s covenant, or to its performance as the consideration and condition of his being bound. Id. Here, however, no time is fixed for building this railroad to Dyersburg. The law implies that a reasonable time was intended to be given. Chit. Cont. 1062; Davis v. Gray, 16 Wall. [83 U. S.] 204, 231; Cock v. Taylor, 2 Tenn. [Overt.] 49. The act of January 27, 1870 (chapter 49, § 5), allowed seven years from the date of the act for the completion of the road. The bonds being issued subsequent to that amendment the parties are supposed to have contracted with reference to it, and this fixes the time within which this condition should have been performed, and it had expired when this suit was brought, and about six years before this money was payable; so that the rule operates the other way, unless the fact, that some of the coupons fell due prior to that time, changes it. The town may have been willing to pay the coupons falling due prior to the date designated by statute as the time for the completion of the road; relying upon the security which the condition gave as to the remainder. They could make this contract if they chose, and we have seen that the rule yields to the actual intention. There are some cases which hold that, if part of the money be payable before the act is to be done by the other side, the respective promises are independent as to the installments of interest; but these cases have, in their peculiar facts, furnished other evidences of such intention, such as delivery of possession of the thing sold. Generally, however, the cases have been those where the principal money was payable in installments. Wilks v. Smith, 10 Mees. & W. 355; Mattock v. Kinglake, 10 Adol. & E. 50; Dicker v. Jackson, 60 E. C. L. 103; Edgar v. Boies, 11 Serg. & R. 445; Chit. Cont. 1082, and cases. It was held in Loan Ass’n v. Topeka. 20 Wall. 650, that the mere payment of interest would not work an estoppel, and 1 think the application of this rule of part pay — 1107 — ments to installments of interest, aside from other controlling circumstances is a perver-sión of the rule itself, and often would operate to defeat the intention. It should only be applied where the mode of payment of the principal money indicates that the parties could have had no other intention than that the promises should be independent. Gardiner v. Corson, 15 Mass. 500, shows that annual payments of interest do not bring the case within the rule of payment by installments. The plaintiff here also relies on the rule that where an essential part of the consideration has been paid, the party receiving it will not be allowed to defeat a recovery against him because some remaining portion of the whole consideration remains unperformed, the argument being, that the town has received the stock of the railroad company for which it subscribed, and because the whole consideration has not been received it cannot refuse payment. Chit. Cont. 1092. This question might become important if the railroad company were in a condition to tender performance of its undertaking, but. the pleas aver that it has been foreclosed and its property and franchises sold under a mortgage. If a party has disabled itself from fulfilling the contract, there is already a breach, and the contract is at an end. Chit. Cont. 1079-lo84. And the non-performance of one part of a contract is not excused by showing performance of another part. Id. 1079. Cutter v. Powell, 2 Smith, Lead. Cas. 1, and notes, is a ease that discusses this doctrine; and it will be found that the rule does not apply where the main and essential part of the consideration remains unperformed. Here, the chief consideration was the railroad facilities to be acquired by the construction of the road to the town. It is well known, that in these days, stock in railroad companies, as property, is not of much value, and the shares are not, in this class of eases, any very essential part of the consideration. The case of Humboldt Tp. v. Long. 92 U. S. 642. is not like this case. The bond did not show any condition, and therefore the subsequent use of the words “upon the performance of this condition” had no force. If the bond had said “payable upon express conditions that the road be constructed through the township,” it would have been this case, but it does not so say. In Pendleton Co. v. Amy, 13 Wall. [80 U. S.] 305, the condition was precedent to the issuance of the bonds, and its performance was presumed from the recitals in the bonds and the fact of their issuance. But here the condition is attached to the payment of the money. Usually, these bonds are issued in aid of the road without incumbrance as to conditions, and it would have been better for the railroad company had these bonds have been so issued. But the parties could attach this condition to their contract, and the bonds were not valueless if the condition has been performed. It was simply a transfer of confidence in the railroad company from the town to the capitalist, who takes the bonds. It is he who trusts the railroad cofnpany ii this case, and not the defendant corporation. It was a wise contract on the part of the town, and it has taken the precaution to inform persons dealing in the bonds of the fact that it had attached the condition to the contract by this recital. The language of the proposition as voted, and the proceedings of the town authorities do not indicate any other condition than that shown on the face of the bond. But if they did, the expression in the bond itself is not ambiguous. The case of Miller v. Pittsburg & C. R. Co., 40 Pa. St. 237, falls directly within the case of a contract for payment-before the road was to be built, and to build it. The principal money — the subscription itself — was all due two years before the road suspended. Here it is deferred for ten years, and the charter of the company required the road to be completed six years before these bonds were due The case of Brooklyn v. Aetna Life Ins. Co. [99 U. S. 362], decided by the United States supreme court, October term, 1878, is a clear recognition of this defense as a good one. And there can be no doubt that if the bonds in that case had on their face given notice, as in this case, the plaintiff would have failed. The case of Town of Concord v. Portsmouth Sav. Bank, 92 U. S. 625, is directly in point in favor of this opinion. There the aci of the legislature attached the condition to' the subscription; here the contract of the parties attached it. There the bonds were void; here the condition, being broken, the bonds became valueless. The case of Nashville & N. W. R. Co. v. Jones. 2 Cold. 574, is also an authority directly in favor of this conclusion. The importance of this ease demands, and has received my most careful consideration, and the defenses set up have raised some of the most perplexing questions known to the law. This must be my apology for the delay in deciding it, and the fullness of the opinion. Demurrer overruled.