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trary, the facts confirm the presumption. A long time has elapsed since the vote of the county authorized a subscription to the Elizabethtown & Tennessee Railroad Company's stock, several times the length of time required by any statute of limitations, even supposing there had been a complete agreement for the subscription—and no step had been taken. If it be said that the condition must have existed when the bonds were issued in order to make them valid, and that the lapse of time since is immaterial, the answer is that though in one sense this is true, yet in another sense it is important, for the fact that nothing had since been done by either party upon the footing of the vote is pregnant evidence to show that, when these bonds were issued, neither the county nor the Elizabethtown & Tennessee Railroad Company regarded itself as under any contract relations with the other. It may be that if a formal release was necessary there might be some weight in the suggestion that the trial court has found that no such release was ever given, and that this would controvert the presumption that the county had been exonerated. But, as the Supreme Court said in its opinion, no formal release was necessary. "It (the condition] was completely fulfilled, if from any circumstance it should appear that the county had been effectively relieved from any liability on account of the vote in aid of the Elizabethtown Railroad."
We come then to the question whether the other provisions of the vote on which the bonds in suit were issued, namely, “that said company shall locate and construct said railroad through said county of Green, ,
and shall expend the amount so subscribed within the limits of Green county,” were conditions precedent to the issue of the bonds, or were stipulations imposed upon the Cumberland & Ohio Railroad Company by its acceptance of the subscription. The acceptance of a contract or an obligation which also in terms imposes obligations upon the obligee, and whereupon the latter seeks and obtains the benefit of the contract, binds the latter for their performance, although he may not have expressly undertaken to be bound. Bishop on Contracts (2d Ed.) § 203; 1 Parsons on Contracts (9th Ed.) § 13, n. 1; Storm v. U. S., 94 U. S. 76, 24 L. Ed. 42.
The question whether the performance of a stipulation in a contract is a condition precedent to the performance of other stipulations in it depends upon the order in which the parties intend the several stipulations to be performed. The calling of a provision or stipulation a condition is not conclusive, and if from the contract or other circumstances it is seen that it was not the intention of the parties that its performance should be a condition precedent it will not be held to be such. Stanley v. Colt, 5 Wall. 119, 18 L. Ed. 502; Union Stockyards Co. v. Nashville Packing Co., 140 Fed. 701, 704, 72 C. C. A. 195; Sohier v. Trinity Church, 109 Mass. 1; Greene v. O'Connor, 18 R. I. 56, 25 Atl. 692, 19 L. R. A. 262; Scovill v. McMahon, 62 Conn. 378, 26 Atl. 479, 21 L. R. A. 58, 36 Am. St. Rep. 350; Hartung v. Witte, 59 Wis. 285, 18 N. W. 175. “Conditions have no idiom," said Virgin, Judge, in Bucksport, etc., R, Co. v. Brewer, 67 Me. 295. "Whether they are precedent or subsequent is a ques
tion purely of intent, and the intention must be determined by considering not only the words of the particular clause, but also the language of the whole contract, as well as the nature of the act required and the subject-matter to which it relates.” Conditions are not favored, and a provision will not be construed as such unless the intention is clear. 6 Am. & Eng. Ency. of L. 502; Clapham v. Moyle, 1 Lev. 155; Shep. Touch. 122; Huff v. Nickerson, 27 Me. 106. "Where the language of an agreement can be resolved into a covenant," said Bell, Judge, in Paschall v. Passmore, 15 Pa. 295, 307, “the judicial inclination is to so construe it; and hence it has resulted that certain features have ever been held essential to the constitution of a condition. In the absence of any of these, it is not permitted to work the destructive effect the law otherwise attributes to it.”
The question we are now considering was mentioned, but not passed upon, by the Supreme Court, because it was not included in our request for its opinion. But we think it apparent, for many reasons, that the performance of these conditions, so called, was not intended to be required before the delivery of the bonds. The subscription for the stock of a railroad company by a municipality, and the issue of negotiable bonds in payment therefor for the purpose of providing means to assist in the construction of a railroad within its limits, is a transaction familiar to every one. It is not a transaction whereby the municipality contracts with the company to build a road, but is intended to provide means to assist the company in building it, in consideration of acquiring a part of its stock, and of the expected advantages of the road to the community. The statute of Kentucky under which these bonds were issued indicates very clearly, as we think, that the bonds authorized were expected to be negotiated for the means to use in the construction of the road. It is provided that they shall be payable to the bearer, that they shall have interest coupons attached payable semiannually in the city of New York, and that the bonds shall be payable at a designated time which may be as long as 30 years after their date. They were thus required to possess the attributes of commercial paper adapted to sale in public markets. And the proposition on which the electors of Green county voted followed in all particulars the provisions of the statute. And when it was provided that the company “shall expend the amount so subscribed within Green county,” we cannot doubt that what was meant was that the proceeds of those bonds should be so used, and not, as has been suggested, that the company should have expended some other money equal in amount to the bonds. Such a construction as would lead to the result suggested would leave the company without the ready means to build the road which it was the purpose to provide for. Moreover, there is a plain distinction made in the proposition voted in the very terms employed. In regard to the requirements we have been last considering, the question was whether the county would subscribe for the stock and pay for it in county bonds, upon condition that the company should construct its road as mentioned, but where the proposition comes to the matter of the exoneration from the vote to the other railroad, that was expressly made a condition to the issuance of the bonds or the payment of any part of them. The failure to append this condition to the preceding provisions, and the introduction of the positive inhibition here employed, are persuasive evidence that a distinction was contemplated in the vote. To bear the construction that the former were intended to be conditions precedent, we should need to have the inhibition located in those clauses also. The abrupt change is significant of a difference in purpose.
Other reasons are also suggested by counsel; but we cannot doubt that, for those we have mentioned, the proper construction to be given to the proposition submitted to, and authorized by, the electors of Green county is that the railroad company should, upon its acceptance of the subscription, and the delivery of the stock by one, and of the bonds of the other, come under an obligation to comply with those terms of the proposition voted. And we reach this conclusion without regard to the question of an estoppel arising upon the fact that the county accepted the stock, and has continued to retain it. If the question of the intention were in doubt, the interpretation given by the county to its vote by paying the interest would be persuasive of its understanding at the time of the transaction. We think the bonds were lawfully issued, and that the fact that the company has not performed the stipulations of the agreement which it made as a consideration for the bonds does not invalidate them, when, as appears, the delivery of the bonds was final, and they have passed into the hands of other parties for value, as it was the evident intention of the statute that they would do. We need not inquire whether the county could have made a partial defense against these bonds upon the ground that there had been a partial failure of consideration if the railroad company had held them and were now bringing suit upon them. The holder of negotiable paper is entitled to the benefit of the presumption prima facie that he or some previous holder whose title he has acquired is a purchaser in good faith and for value before maturity, in the usual course of business, and without notice of any circumstances impeaching its validity; and that he is the owner thereof, if it is payable to bearer. Daniel on Neg. Inst. § 812. Nothing is here shown to contravene these presumptions. Of course it must always appear that the obligor was competent in law to incur the obligation, and had in fact attempted to incur it. We do not understand that the absence of a recital in municipal bonds that the conditions to their issue have been complied with deprives them of their character of negotiable instruments or of the ordinary presumptions which attend such instruments. Recitals of that character relate to the regularity of the proceedings precedent to their issue, and, if the recitals cover the necessary facts, conclusively establish it. But when, in a case where there are no such recitals, proof is made that the proceedings were in fact regular, the bonds are entitled to the same presumptions in their subsequent negotiation as if they had contained such recitals.
It is suggested that the finding of the court "that the plaintiff is a citizen of the state of New York, and was so when this action was instituted on the 28th day of March, 1899, and that the plaintiff was the bona fide holder for value of the bonds and coupons sued on, and fully entitled to sue the defendant thereon in this court,” was intended only to say that the citizenship of the plaintiff was such as to entitle him to sue in the federal court. But this court, in its question to the Supreme Court, construed this finding to be also a finding that the plaintiff was a bona fide holder for value, and the Supreme Court certainly so construed it as is shown in the statement of facts, and, we have no doubt, correctly. That part of the finding of facts had no relevancy to the question of jurisdiction. If she was a citizen of New York, and was the holder of the bonds, she was entitled to sue. The question of whether she was a bona fide holder for value was a question upon the merits of the case. The phrase which the court below employed was one peculiar to the law of negotiable instruments, and ought to be construed in the sense in which it is there employed. But it really is not material. If, as we hold, the bonds were lawfully issued, the presumptions of law would clothe the plaintiff, if she was the holder, with the character of a bona fide holder for value.
The judgment of the Circuit Court must be reversed, with directions to enter a judgment in favor of the plaintiff for the amount of the bonds and coupons, with interest on the coupons from the time they severally fell due, and interest on the principal of the bonds from the date when the latest coupons thereon severally fell due.
LURTON, Circuit Judge (dissenting). I must in this case, and contrary to the usual practice of this court, express openly the grounds for my dissent to the conclusions reached in this case.
The county has not obtained a road constructed by the company to whose stock it proposed to subscribe. Its money has been thrown away. This suit involves its probable liability upon an issue of bonds aggregating $250,000. This series of bonds with interest already past due, aggregate three-fourths of a million. For this the county will obtain nothing. To prevent just such a possible result the Legislature provided that subscriptions by counties might be voted conditionally. The conditions which the county demanded were intended to absolutely secure the building of the road. By subtilty of construction, upon which I express no opinion, two of these conditions are said now to be only covenants, and, therefore, worthless against an insolvent and nonexistent railway company. For at least 30 years the county has denied its liability, and refused payment of interest. When this denial had been so long acquiesced in that the bonds were purchaseable for little more than the value of wall paper, as stated at the bar, they are acquired by speculators, who now urge that, during all this long, long period of repudiation, the defense of the county has been growing weaker and weaker, and that time, which usually only fortifies a defensive position, has all this time been making bonds valid which were invalid when issued. I will not willingly aid in the destruction of the settled principles which tend to the security of commercial paper. Neither will I agree to strain a finding of facts to hold a county upon obligations which, in my judgment, were never binding either in the forum of law or conscience.
The principal grounds upon which I find myself unable to agree with the court are these:
1. The opinion and conclusion conflicts with the settled views of the Suprenie Court in respect to the most important ground upon which it rests. Assuming that the mere fact of issuing these bonds by the county judge was a determination that the conditions had been complied with which authorized their issuance, that determination only raised a presumption in favor of one who should take the bonds before maturity, for value, and without actual notice of the real facts of the case at the date of issuance. This is so because the bonds were without recital. This much was the plain ruling of the Supreme Court in Buchanan v. Litchfield, 102 U. S. 278, 26 L. Ed. 138, and Citizens' Savings Ass'n v. Perry County, 156 U. S. 692, 15 Sup. Ct. 547, 39 L. Ed. 585. In this very case we certified the question as to the presumption upon which a purchaser before maturity for value might act in purchasing bonds without recital. Referring to the tendency of some of the earlier cases to deny to bonds in the hands of innocent holders any other defense than want of power, the court said that tendency had been “arrested" by the cases I have cited above, which cases it is said held “that the mere facts of subscription to stock and issue of bonds containing no recitals left it open to the obligor to show that a condition precedent had not been fulfilled.” “But," added the court, “these cases in no way conflict with the view expressed by Mr. Justice Story in Pendleton County v. Amy, 13 Wall. 297, 20 L. Ed. 579, and by Mr. Justice Bradley in Coloma v. Eaves, 92 U. S. 481, 23 L. Ed. 579, that a presumption arises from the mere fact of subscription and issue, though not a conclusive one." "Independent of authority such a presumption exists, and is but an instance of the broader presumption that officers charged with the performance of a public duty perform it correctly.” My Brethren do not, as I read the opinion of the court, accept this as an applicable rule of law or an authoritative decision in this case. It is, in conclusion of an argument in favor of the conclusiveness of facts, determined by the county judge, refusing the delivery of the bonds here in question, said:
“His delivery of them without the occurrence of the conditions would be unauthorized and the bonds be void, yet it would seem upon principle that if the question whether the conditions had been accomplished is one of doubt and uncertainty, and it is apparent that the officers who had charge of the issuance of the bonds are to determine the fact of compliance with the condition, his determination would conclude the question, and, if in the affirmative, bind the county.”
It is evident that the error of the court in the matter I have referred to is, after all, the real ground of the conclusion reached and its judgment colored by the view before expressed.
2. The conclusion is next placed upon the theory that no subscription had ever been made to the capital stock of the Elizabethtown & Tennessee Railroad Company, although one was authorized. It is stated in the opinion that, although the subscription was voted, and the county court ordered its clerk to subscribe for the stock, "the clerk did not so subscribe.” It is also said that, when the bonds here involved were issued, the said Elizabethtown & Tennessee Railroad Com