... side, and Schepeler & Co. and Baltzer & Taaks for so many of said bonds as will, at the market price thereof on the day of drawing, equal the sam due for the iron mentioned in the bill of lading at forty-nine dollars and forty-six cents per ton, the balance payable for such iron, namely: twenty-nine dollars and ninety cents per ton, shall be paid in like manner on the arrival of the vessel containing the same at the port of New York or the port of Norfolk. Notice shall be given to the party of the second part, or his personal representatives, of the arrival of any ship containing iron, and he or they are to be ready to receive the same whenever ship is ready to discharge." The contract further provided that "in the event of the death of said party of the second part and no appointment of & personal representative at the time notice is required to be given," notice might be given to Hawkins, and "if at any time the party of the second part, or his personal representative," or the said Hawkins or his attorney, or the survivor of them, should refuse to join in drawing an order for the amount due for iron, the parties of the "This agreement, made this eleventh day of September, one thousand eight hundred and sixty-eight, by and between Messieurs Schep-first part might retain the warehouse receipt and eler & Company and Messieurs Baltzer & Taaks, of the City of New York, parties of the first part, and John F. Pickrell, also of the City of New York, party of the second part, witnesseth." By it the parties of the first part agreed to sell and deliver to the party of the second part, and the party of the second part agreed to purchase and receive of the parties of the first part, ten thousand tons of English or Welsh iron rails, at the price of $79.36 per ton. The contract then proceeded thus: sell the iron for which payment had been refused “for and on account of the party of the second part, or his personal representatives," who should be liable to reimburse the parties of the first part any loss from such resale, and notice of intention to sell should be given "by depositing the same in the general postoffice, in the City of New York, addressed to the party of the second part, or his personal representatives, or the said William J. Hawkins, in the event of the death of the said party of the second part, and the non-appointment of any personal representative, in the City of New York." The contract also contained the following stipulation: look solely to the said bonds for payment, and if for any reason they should at any time fail to constitute a fund for payment, the parties of the first part are nevertheless to be paid for iron at the same rates and times as herein before provided. "The iron is to be paid for as follows: The party of the second part is to deposit with the Continental National Bank, on or before the execution of this agreement, such an amount of "It is understood that the said bonds are the bonds of the State of North Carolina as deposited as a fund out of which to pay for will, at the market price on the day of deposit, said iron, and that the parties of the first part be equal to the whole purchase money for the are to have a lien on the same, for the faithful [637] said ten thousand tons of iron, and 15 per performance of this contract, on the part of the cent in addition thereto, which margin of 15 party of the second part, but it is also underper cent is to be kept good until the full per-stood that the parties of the first part do not formance of this contract. The said bonds are to be held by said bank, subject to the joint order of the parties of the first and second parts and William J. Hawkins, or his attorney, or the survivors of said parties respectively. On the presentation of a warehouse receipt or ship's delivery order for any lot of said iron, the party of the second part and said William J. Hawkins, or the survivor of them, are to join with the parties of the first part in drawing an order on said bank, in favor of the parties of the first part, for so many of the said bonds as will, at the market price thereof on the day of drawing, equal the sum payable for such lot of iron at the price of seventy-nine dollars and thirty-six cents per ton as aforesaid, or pay that amount in money. "Upon presentation of a bill of lading for any lot of such iron placed on shipboard for transportation to the port of New York or Norfolk, Virginia, the party of the second part and the said Hawkins, or the survivor of them, shall join with the parties of the first part in drawing an order on the said bank, in favor of the said parties of the first part, "The party of the second part reserves the right to sell any or all of the bonds deposited with said bank, and, in case of sale, the money realized for the same, or a sufficient amount to cover the price of all said iron, and 15 per cent in addition thereto, shall be placed with said bank on the same terms, and represent the said bonds for all the purposes of this contract. "The said bank shall deliver the bonds sold on the presentation and delivery of such joint order as aforesaid. The parties of the first part shall have their election to draw, in payment for iron, bonds, or money, the proceeds of bonds, if any shall have been substituted in the place of bonds sold." The contract concluded, and was signed and witnessed, as follows: "In testimony whereof the said parties to these presents have hereunto subscribed theit mes the day and year first hereinbefore writ- | zer & Taaks, under this contract with him, 630 Schepeler & Co., By John T. Schepeler. Baltzer & Taaks, By H. R. Baltzer. "In presence of George H. Sturr." Afterwards, but not on the same day, W. J. Ens executed a paper bearing the same e as the contract above mentioned, which ed with the following recital: "Whereas Yes Schepeler & Co. and Baltzer & Taaks ad John F. Pickrell have entered into an ement of even date herewith, by which Des the said Schepeler & Co. and Baltzer & Taksagree to sell and deliver, on certain terms Sen mentioned, ten thousand tons of iron to the said John F. Pickrell." By this second contract Hawkins stipulated dows: "That fourteen hundred bonds of State of North Carolina, each for $1,000, bered from 1,600 to 3,000 inclusive, which w on deposit in the Continental Bank of y of New York, subject to my order as t of the Chatham Railroad Company North Carolina, shall remain on deposit in at bank, subject to the joint order of the ries mentioned in the said contract, as thererovided, while said contract is being perred, for the purpose of providing for the t of said iron, and as security for the rmance of said contract as therein pro" and I agree to unite in drawing the ortherein provided for at the times and in the therein set forth; provided, however, is hereby distinctly understood and d that whenever any delivery of said bonds be made, and any order for such delivery red pursuant to said contract, I am to the option and right to pay in money the payable under said contract for the iron, aspect to which such delivery of bonds is red, at the contract price; *** and upon ter payments being made by me, I Lave the right to withdraw from deposit *s which otherwise would have been red under said contract, and such bonds delivered to me by said Continental Bank on the presentation of such de aforesaid, such option and right to ed by me within five days after being the manner provided in the contract night of said parties of the first part **amed to a delivery of bonds pursuant also hereby expressly provided that in of the iron or any part thereof, and between the port of shipment and or of entry or delivery, all payments serunt thereof are to be refunded by er & Co. and Baltzer & Taaks as chloss is ascertained." tract was signed "W. J. Hawkins, Chatham Railroad Company." two contracts were designated in the pectively as "A" and "B." tons of iron rails, and on November 2 follow- The validity of the bonds of the State of In consequence of the embarrassment resulting to Pickrell from the discrediting of the North Carolina bonds, no iron was received by him after November 2, 1868, from Baltzer & Taaks on the contract of September 11, 1868; and on August 11, 1869, Baltzer and Taaks, by a letter of that date addressed to Pickrell, released him, as far as they were concerned, "from obligations of receiving any more iron under contract dated 11th September, 1868, and," they added, "we consider the same as closed." The balance sued for was, therefore, for iron delivered on November 2, 1868. The bill in this case was based on the assumption and averment that the Chatham Railroad Company was a party to the contract of September 11, 1868, designated "A," and that all the stipulations therein made by Pickrell were made by him for the Railroad Company, acting by its authority and in its behalf, and that the Chatham Railroad Company was the party of the second part to the contract, and not Pickrell; that the contract was to be construed together with and as a part of the agreement of the same date, signed by W. J. Hawkins, President Chatham Railroad Company, and des ignated "B;" and that, under the terms of these contracts, the Railroad Company had purchased, and received from plaintiffs, and used twenty-seven hundred and thirty-four tons of iron rails, on which there remained unpaid and due to the plaintiffs the sum of $93,615.57, with interest from November 2, 1868. The bill prayed that the contract "A" might be reformed and corrected by the substitution of the name of the Raleigh and Augusta Air er 12, 1868, there were delivered to Line Railroad Company, formerly called the Parell, by Schepeler & Co. and Balt-Chatham Railroad Company, for the name of [641] 1642 John F. Prime, who, it was alleged, as the court dismissed the bill, and the plaintiffs ap- The agreements set out in the record do not show upon their face any contract by which the Railroad Company agreed to purchase iron rails of the plaintiffs. The plaintiffs, however, insist that taking contracts "A" and "B" to The bill forber prayed for a decree against The Suload Docoity mewered under its T The answer of the Ruoad Company further Starzał zna Prevc bad paid the plaintiffs for 1. 120 decmurat by them under their contract *** and that the Company had paid Pickrell he al work droe and materials furnished by im. mwažnger his construction enous via the Company, and pleaded the Vra Osečnu Saare of Limitation of three The bar of the plaintiffs' suit. Vildred Laswered that when the contract *A'S TAC and executed he was not the arent of the defends Company to make or exHÜTTE TÜR SEIDE, Or for any purpose, and did not serresent homself to be so to the plaintiff; and that he was not a party to said contract or inpresaal therELZ.. Hawkins in his answer, denied that Pickrell was the soma of the defendant Company, or than be hilary authority to make any contract best of the Company for the purchase of pod and averted that Pickrell made the conman for himself to procure iron to perform his 2wn contesen with the Railroad Company. He gomed that the contract "B," signed by himse ss president of the Chatham Railroad Com was a part of the contract “A," but armat that it was a separate and independent over not made by him to enable Pickrell to pay for de tron which he had purchased from Baltser & Tsaks and Schepeler & Co., and that De two contracts were not, at the time of their execution, regarded by any of the parties thereto as forming parts of the same contract, but as dscnet, each binding upon the party or parties signing the same, and upon him or them alone, and that he had foily performed every part of the agreement "B" signed by him. to these answers replications were filed by the plaintiffs. Upon final hearing the circuit agreement of the Railroad Company to buy ten thousand tons of iron from the plaintiffs can be made out. We think otherwise. If both contracts had been written on the same sheet of paper and executed at the same time, that fact would not have changed the obligations which the parties assumed. Reading both contracts, it appears that the plaintiffs, the parties of the first part, sold and agreed to deliver to Pickrell ten thousand tons of iron rails. Pickrell agreed to receive the rails and pay for them at a certain price in bonds of the State of North Carolina, and Hawkins, as agent of the Chatham Railroad Company, agreed to join with the other parties in an order for the withdrawal of the bonds from their place of deposit, to be handed over to Pickrell, and by him handed over to the plaintiffs. In this manner the debt of the Company to Pickrell, and the debt of Pickrell to the plaintiffs for the iron, would be paid. There is nothing in either of the two contracts, considered separately or as one, which discloses any contract between the plaintiffs and the Railroad Company for the sale and purchase of iron. On the contrary, contract "A" is a contract for the sale and purchase of iron, to which the plaintiffs and Schepeler & Co., on one part, and Pickrell, on the other, were the only parties, and Exhibit "B" opens with a recital of the fact that, by contract "A," the plaintiffs and Schepeler & Co. had agreed to sell and deliver to Pickrell ten thousand tons of iron rails. The Railroad Company was not mentioned in contract "A," and all that it agreed to do by contract "B" was to unite in an order for the bonds. But the plaintiffs contend that the two contracts are to be sc read that Pickrell, who, according to contract "A," agreed to buy and pay for ten thousand tons of iron, is not to buy the iron or pay for it, or do anything which the contract requires him to do, but that the Railroad Company which is not named as a party to it at all, is to do everything which the contract requires o Pickrell. On the theory that the two contracts were on contract, to which the Railroad Company and not Pickrell was a party, the inquiry is perti nent: What was the necessity of its execution by Pickrell at all, when it was signed by Hawkins the president of the Company, and why should the Railroad Company, having two agents full authorized to make the entire contract, execut one part of it by one agent, and the other par by the other? In the light of the surrounding circum stances, the meaning of the two contracts contract were drawn under the supervision of plain and is not open to construction, especially to a construction which relieves one party of all the obligations assumed by him and puts them pon another, who had not assumed them at Pickrell having made a contract with the Bad Company to construct its road and furnish the iron therefor, and to take his pay in North Carolina State bonds, makes another with the plaintiffs for the iron and agrees to ay for it with the same class of bonds which was to receive from the Railroad Company. Nex, in order to secure to the plaintiffs their put for the iron sold, and Pickrell pay for his done and materials furnished, and to prolect the Railroad Company from a misapproprion of its state bonds, the contract "A" prothat, upon presentation of a warehouse Pot or ship's delivery order for any lot of , all three parties, the plaintiffs, Pickrell, It is necessary, in order to sustain their cond Hawkins, the president of the Railroad tention that the name of Pickrell was inserted Geary, should join in an order for the with- in the contract when that of the Railroad Comcava from the bank of so many bonds as pany should have been, for the plaintiffs to ld pay for such lot of iron. It was be- show that Pickrell was the agent of the Railthe Railroad Company was not a party to road Company, authorized by it to make the act "A" that the contract "B" was exe- contract, and that he used his own name in the d by Hawkins, its president, whereby he contract instead of the name of his principal. d to join in an order for the withdrawal of There is no proof in the record to show that when the plaintiffs were entitled to them the defendant Company ever authorized Pickthe terms of their contract "A" with Pick-rell to act as its agent in any matter whatever; * It is plain, therefore, that, as they stand, on the contrary, it is established beyond ques24 metracts mean, what their language im- tion that Pickrell was not the agent of the Railthat Pickrell contracted with the plaint- road Company. The Company denies it in its for the purchase of the iron, and the Rail- answer; Hawkins, the president of the Com* Company did not. pany, denies it; Whitford, the associate of Pickrell, denies it; and Pickrell himself does not assert the contrary, and he swears he did not, in purchasing the iron of the plaintiffs, represent himself or Whitford to be the agent of the Railroad Company. There is no proof [647] But the plaintiffs contend that contract "A" tld be reformed by substituting therein the of the defendant Railroad Company, the arty of the second part, for the name of an F. Pickrell, and, being thus reformed, they are entitled to the further relief red in their bill. To entitle the plaintiffs to this relief, they how that the name of Pickrell, as the of the second part, was inserted, and the of the Railroad Company left out of the t by mistake or fraud. In such a case, a well settled that equity would reform the , and enforce it, as reformed, if the ake or fraud were shown. Bradford v. Bank, 13 How. 66 [54 U. S. bk. 14, L. ***, O Neil v. League, 8 Ala. 345. But the A must be clearly shown. If the proofs ful and unsatisfactory, and if the Mnot made entirely plain, equity will 11 relief. Shelburne v. Inchiquin, 1 S, Henkle v. Royal Assurance Co. 17; Gillespie v. Moon, 2 Johns. Ch. Iman v. United Ins. Co. 2 Johns. Ch. v. Martin, 11 Ala. 187; Stock** Hudson Iron Co. 107 Mass. 290. Even the application of this strict rule the Le plaintiff fails. replace, there is no averment in the name of Pickrell was inserted in that by mistake or fraud for that of the Company, and, as far as the record plaintiffs never asserted in any way --was the case until after the bringing more than ten years subsequently **tion of the contract. The facts rated and not disputed show that there froad or mistake in drafting the con the original draft and the final in the record which tends to rebut this evi- If John F. Pickrell, party of the second part It is also apparent upon the most cursory reading of contract "A" that the substitution of the name of the Railroad Company for that of Pickrell would render several of its provisions nugatory and impossible of execution, and the paper generally incongruous and absurd. But if anything further were needed to show how baseless is the contention of the plaintiffs [648] [649] that the name of Pickrell was inserted in the As, therefore, the contract expressed the 1868, they reported that the bonds had been sold by them, and such balance sheet showed that they had been paid in full for all the iron furnished by them. There is no averment in the bill that the plaintiffs did not sell the one hundred and fifty bonds as they reported to Pickrell they had done, or that they still have them in their possession, and there is no offer to return them either to Pickrell or the Railroad Company. These facts, considered in connection with the further fact that the contract for the sale of the iron provided that payment therefor should be made in North Carolina State bonds, leave no ground for the contention that there is anything due the plaintiffs from anyone for the iron furnished under con The evidence which was offered of the un-tract "A.” derstanding between Baltzer and Pickrell that Therefore, without considering the fact that the covenants of Pickrell were the covenants the plaintiffs have never, either in their bill or of the Railroad Company was inadmissible, at any time, tendered back the one hundred first, because it is a general rule that when a and fifty bonds of the State of North Carolina, contract has been reduced to the form of a doc- which they admit they received, on account ument or series of documents, no evidence can of the iron furnished, or the fact that Schepbe given of the terms of such contract, except eler & Company, who were parties to the conthe document itself; and, second, the Railroad tract on which the suit is based, are not made Company could not be bound by the under-parties plaintiff, and without considering the standing of other persons to which it was not Statute of Limitations of North Carolina, a party. The only covenant of the Railroad which is pleaded by the Railroad Company, we Company appearing upon the face of the pa- are of opinion that the plaintiffs have failed pers was that contained in contract "B," and to maintain their suit, and their bill was propthat covenant Baltzer, one of the plaintiffs, e ly dismissed. and Hawkins, who signed it as president of the Railroad Company, both testified had been fully performed. The plaintiffs, therefore, fail in the first step necessary to entitle them to the relief prayed by their bill; they show no contract between themselves and the Railroad Company. But their case must fail for another reason. The evidence in the record shows conclusively that the plaintiffs were paid by Pickrell, in accordance with the terms of their contract with him, for all the iron bought by Pickrell and used by him in the construction of the road of the defendant Company. Decree affirmed. James H. McKenney, Clerk, Sup. Court, U. 8. (See 8. C., Reporter's ed., 683-700.) Constitutional law-obligation of contracts-impairment-exclusive privileges of Louisville Gas Company-construction of statutes-injunction. It is not disputed that for the balance now sued for Baltzer & Taaks received from Pickrell, between November 2 and November 20, 1868, one hundred and fifty North Carolina bonds of $1,000 each. On November 20, they reported in writing to Pickrell that they had 1869, to the Louisville Gas Company, for the term *1. The grant by the Legislature of Kentucky, in sold one hundred of the bonds at 64 cents on of twenty years, of "the exclusive privilege of the dollar, amounting to $62,493.40, and on erecting and establishing gas works in the City of November 21, that they had sold the remain-Louisville, and of vending coal gas lights, and supplying the city and citizens with gas by means of ing fifty bonds for 63 cents on the dollar, public works," that is, by means of pipes laid in the amounting to $30,996.82, "producing to" his streets and public ways of that city, constituted a contract, within the meaning of the National Con"credit," $93,490.22. The proceeds of the stitution, and was not forbidden by that clause in bonds, with the overpayment made by Pick- the Bill of Rights of Kentucky which declares that rell on the first lot of iron delivered, more than "all freemen, when they form a social compact, are paid the amount due on the lots delivered equal, and that no man or set of men are entitled to November 2, 1868. On November 23, 1868, leges from the community, but in consideration of exclusive, separate public emoluments or priviBaltzer & Taaks stated their account with public services." Within the meaning of that clause Pickrell, which showed there was due to him the services which the Company undertook to perform were public services, affecting the interests on account of overpayment for the iron deliv- and rights of the public generally. ered $937.44, and this sum they paid him on December 28, 1868. By a final balance sheet, made out by themselves in September, 1869, more than ten months after the bonds were received by them, and nine months after the North Carolina bonds had, according to the averments of their bill, become discredited and of little value, they credited Pickrell with the amounts for which, on November 20 and 21, 2. By a general statute of Kentucky, passed in 1856, it was declared that "all charters and grants of or *Head notes by Mr. Justice HARLAN. NOTE.-Constitutional law; obligation of contracts; impairment of. See Fletcher v. Peck, 10 U. 8. (8 Cranch), 87, bk. 3, 162, note. lidity of. See the two following cases. See also Same; legislative grant of exclusive privileges; vaCooley, Const. Lim., 5th ed., 339-315. |