An exact meeting of the minds of the respect to the lard, he delivered the fol

parties with reference to all its terms lowing instrument to the plaintiff. and incidents is necessary to consti

“St. Louis, Mo., February 17, 1872. tute a contract of sale.

“I have this day bought of Messrs. Appeal from an order on the trial of

A. & C. for account of Messrs. Fowler the cause dismissing the complaint and

Bros. of New York, 700 tierces of directing that the exceptions be heard

Kizer & Smith prime steam lard, deat first instance at general term.

livered on cars at Keokuk, Iowa, at Action to recover damages for the

the option of the buyers during all of breach of an alleged contract for the

March, 1872. purchase of 700 tierces of lard by the defendant's failing to accept and pay of the St. Louis Union Merchant's Ex

“Quality to be standard as per rules for the same.

change, and in good new wooden bound The complaint was dismissed at the

tierces. Tares actual. close of plaintiff's evidence on the fol

“Terms cash on delivery. At the lowing grounds.

rate of 9 cents per pound. That upon the proof there was no

Brokerage 1 % payable by the buyevidence of any contract such as alleged in the complaint for the purchase

“ M. C. D. of the lard, or of any contract that was

“Broker." valid under the statute of frauds.

Across the face of this was written The following facts appeared on the the words “ Accepted. A. & C.” trial :

This instrument or a duplicate of it The defendants, Fowler Bros., ap- was sent forward to Fowler Bros. for plied to one M., a broker, in New York their acceptance, but they refused to city to purchase lard for them. Al- accept it. most immediately thereafter defendants The lard was in the warehouse of received the following instrument from Kiser & Snith, by whom it was manuhim:

factured, at Keokuk, Iowa, and re"Bought for account of Fowler mained there all through the month of Bros., in St. Louis, (through M. P. March, ready, as the evidence tended Drysell,) (700) seven hundred tierces to show, to be delivered to defendants prime steam lard, brand Ruddick Kizer by plaintiff in compliance with the & Co., 9 cents per pound.

terms of the instrument made by D., “Deliverab.e buyers option.

and accepted by them. “ March 31st, 1872.

Defendants never recognized any ob“Buyers in St. Louis.

ligations as resting upon them by force “G. M. M., of that agreement. “ Broker."

Afterwards D. procured the lard to be About the same time M., the broker, delivered to the R. R. Co. at Keokuk, in New York, telegraphed to D. in St. Iowa, which gave bills of lading thereLonis, who was connected with him in for, and the bills of lading, with a sight business.

draft, were forwarded to defendants for When the broker in St. Louis re acceptance. Defendants refused to acceived notice by telegraph of the trans- cept the draft. The lard was retained action of M. and the defendants with in the warehouse at Keokuk,

In the mean time the price had fal- TOWN BONDS. BONA FIDE len 1 cent per pound.

HOLDER. ESTOPPEL. E. N. Taft for applt.

U. S. SUPREME COURT. C. Van Santvord for respt.

George 0. Marcy, plff. in error v.

The Township of Oswego, in the county On appeal.

of Labette, and State of Kausas, deft. Ileld, That a comparison of the in

in error. struments above set forth shows, as we think, quite clearly that there was no

Decided May 1, 1876. contract between the plaintiff and the Where legislative authority has been defendants.

given to a municipality to subscribe

for the stock of a railroal company, The instruments executed by the re and to issue municipal bonils in payspective brokers are different in mate ment of the subscription, on the haprial respects. The one delivered to de pening of some precedent contingency fendants represented a purchase in St.

of fact, and where it may be gather. Louis of 700 tierces of prime steam

ed from the legislative enactment

that the officers or persons designatel lard-brand Ruddick Kiser & Co..

to execute the bonds were invested with Terms of payment by sight draft ac power to decide whether the contin. companying bill of lading, this sight gency had happened, or whether the draft would of course be payable in

fact existed which was a necessary New York.

precedent to any subscription or is

sue of the bonds, their decision is The instrument delivered to the

final in a suit by the bona fide holiler plaintiffs represented a purchase for ac of the bonds against the municipalcount of defendants of 700 tierces of ity, and a recital in the bonds that Kiser & Smith, prime steam lard, de the requirements of the legislative act livered in the cars at Keokuk, Iowa,

have been complied with is conclu

sive. quality to be standard as per rule of St. Louis Merchant's

In error to the circuit court of the

Exchange. There was a difference in the instru: United States for the district of Kanment as to the place of delivery, the

At the trial in the circuit court the quality as expressed in the instrument and the terms of the payment, and it plaintiff proved by competent evicannot with truth be said that in re. dence that the bonds, coupons of which spect to these particulars, that there was were declared upon, were part of a seever any agreement or meeting of the ries of bonds for one hundred thousand minds of the parties.

dollars, voted and issued by the townWe think that the court below was issued in strict compliance with an act

ship, and that they were so voted and right in holding that there was no con of the legislature of the state, approvtract that could be enforced, and that the defendants were entitled to judg-voted and issued in excess of the amount

ed February 25, 1870, unless they were ment with costs.

authorized by the act. It became, thereJudgment affirmed.

fore, a question whether, in this suit, Opinion by Davis P.J.; Brady, and brought by a bona fide holder for value Daniels J. J. concurring.

to recover the amount of some of the coupons, it could be shown, as a defense


to a recovery, that at the time of vo- February 25, 1870. (Laws of Kansas, ting and issuing the series cf bonds, 1870, p. 189.) The first section enactthe valne of the taxable property of the ed that whenever fifty of the qualified township was not, in amount, sufficient voters, being freeholders, of any munito authorize the voting and issuing of cipal township in any county should pe. the whole series, amounting to one hun-tition the board of county commissiondred thousand dollars.

ers of such county to submit to the The bonds to which the conpons were qualified voters of the township a propattached contained the following re-osition to take stock in the name of cital: “This bond is executed and is such township in any railroad proposed sued by virtue of and in accordance to be constructed into or through the with an act of the legislature of the township, designating in the petition said State of Kansas, entitled "An act (among other things) the amount of to enable municipal townships to sub- stock proposed to be taken, it should be scribe for stock in any railroad, and to the duty of the board to cause an elecprovide for the payment of the same, tion to be held in the township to deterapproved February 25th, 1870,' and in mine whether such subscription should pursuance of and in accordance with be made : provided that the amount of the vote of three-fifths of the legal vo bonds voted by any township should not ters of said township of Oswego, at be above such a sum as would require special election duly held on the 17th a levy of more than one per cerit. per day of May, A. D. 1870." Each bond annum on the taxable property of such also declared that the Board of County township to pay the yearly interest. Commissioners of the county of Labet

The second section directed the board te (of which county the township of of county commissioners to make an Oswego is a part) had caused it to be order for holding the election contemissued in the name and in behalf of plated in the preceding section, and to said township, and to be signed by the specify therein the amount of stock chairman of the said board of county proposed to be subscribed, and also to commissioners and attested by the coun- prescribe the form of ballots to be ty clerk of the said county, under its used. seal. Accordingly each bond

The fifth section enacted that it thus signed, attested and sealed. The three tifths of the electors, voting at bonds were registered in the office such election should vote for the sub. of the State Auditor, and certified scription, the board of county commisby him in accordance with the provis- sioners should order the county clerk to ions of an act of the legislature. His make it in the name of the township, certificate on the back of each bond de- and should cause such bonds as might clared that it had been regularly and le- be required by the terms of the vote gally issued ; that the signatures thereto and subscription to be issued in the were genuine, and that it had been du- name of such township, to be signed by ly registered in accordance with the act the chairman of the board and attested of the legislature.

by the clerk, under the seal of the The act under which the bonds pur. county. port to have been issued, was passed Held, These provisions of the legis.


lative act make it evident not only that subscription. These are all extrinsic the county board was constituted the facts, bearing not so much upon the agent to execute the power granted, but authority vested in the board to issue that it was contemplated the board the bonds as upon the question whether should determine whether the facts that authority should be exercised. existed which, under the law, warranted They are all, by the statute, referred to the issue of the bonds. The board was the inquiry and determination of the to order the election, if certain facts board, and they were all determined beexisted; and then the board, and fore the bonds and coupons came into it only, was to decide whether the the hands of the plaintiff. He was, things precedent to the right to order therefore, not bound, when he purchasan election were actual facts. No other ed, to look beyond the act of the legistribunal could make the determination, lature and the recitals which the bonds and the members of the board had pecu- contained. liar means of knowledge beyond what The judgment of the circuit court is any other person could have.

reversed, and a new trial ordered. The order for the election, then, in-. Opinion by Strong, J.; Miller, Davis, volved a determination by the appoint- and Field, JI., dissenting. ed authority, that the petition for it was sufficiently signed by fifty freeholders EXECUTOR'S COMMISSIONS. who were voters; that the petition was N. Y. SUPREME COURT.--GEN'L TERM. such an one as contemplated by the law,

FIRST DEPARTMENT. and that the amount proposed by it to Ireland, applt. v. Corse et al., respts. be subscribed was not beyond the limit

Decided May 5, 1876. fixed by the legislature; the subse. quent issue of the bonds containing the Where an executor is allowed by the

terms of the will 6 per cent, commisrecital above quoted, that they were is

sion for all money collected by him, sued "by virtue of and in accordance the term collection will be construed with " the legislative act, and in “

in its strict and distinctive


and S!!ance of and in accordance with the

will not be held to include moneys revote of three fifths of the legal voters

ceived by the executor as the proceeds

of a sale of property belonging to the of the township,” was another deter

estate, unless it plainly appears that mination not only of the result of the such was the intention of the testator. popular vote, but that all the facts ex

Appeal from a decree of the surroisted which the statute required in or- gate of New York County, at a final der to justify the issue of the bonds. accounting of the executors of the es

The existence of sufficient taxable tate of Andrew L. Ireland, deceased. property to warrant the amount of the

The only question raised on the apsubscription and issue was no more es peal is with reference to the allowance sential to the exercise of the authority by way of commissions, to John B. Ireconferred upon the board of county land, one of the executors named in the commissioners than was the petition for will of Andrew L. Ireland, deceased. the election, or the fact that fifty free- The fourteenth clause of the said will holders had signed, or that three-fifths provided as follows: “I hereby nomivs the legal voters had voted for the nate and appoint John Corse, Esq., my

grand nephew, Wm. Jenkens, Esq., and testator did not intend by the provision Jolin B. Ireland, Esq., executors and in question, to give to appellant ( per trustees of this my said will, and I fur- cent. of the proceeds of his entire esther direct that John B. Ireland shall tate, but to give that sum upon such receive 6 per cent of all moneys collect. collections as should be made by him, ed by him."

using the word collection in its strict The testator died seized of a large and distinctive sense. In other words, amount of real estate, and also possessed in providing for a sale of his property, of personal property appraised at abont and its conversion into money, by his $344,000. The will directed that the executors, for the purpose of carrying real and personal property be converted out the provisions of his will, he did into money. Appellant claimed that not intend that the act should be rehe was entitled to 6 per cent. of all the garded as a collection entitling appelproceeds of such conversion, under the lant to 6 per cent. of the proceeds. The 14th clause of the will above quoted. accounting for the $7,800, which the ap

Appellant had, prior and up to the pellant had before collected, as agent, death of testator, been his agent for and which he was bound to make for the collection of rent, &c., receiving that money, was not a collection within therefor the sum of 7 per cent. commis- the 14th clause of the will

There was sion on all rents collected. He had in also, at the time of testator's death, his hands, as appears by the testimony, $1,200, which he had collected and deat the time of such death, the sum of posited in the bank to his credit. It $5,800, and in the bank $1,200. The would seem this sum was in his hands, auditor, to whom the accounts were re so as to be chargeable against him as a ferred, found, as one of his conclusions debt owing by him to the estate, only of law, that the testator did not intend deposited to his credit. that the commissions should apply to It deposited to the credit of the tesany money except that arising from tator, as it may have been, the bank becollections actually made. The appel. came indebted to the estate, and if the lant claims that he is entitled under appellant subsequently collected that the 14th clause to 6 per cent. of the en- sum from the bank, he would properly tire estate, real and personal—the pro be entitled to the 6 per cent for its colceeds of which came into his hands, in lection. It was the duty of the appellieu of his commissions, under the stat-/ lant to have plainly shown what the ute. The auditor reported that he was facts were with reference to these deunable to determine from the papers be posits; and in the absence of proof fore him the precise amount which was that the deposit was in the name of the collected by the executor, John B. Ire-testator, it is proper in this appeal to asland, and for which he should receive a

sume that it was in appellant's own commission of 6 per cent.

He did not present such evidence to No such claim was allowed by the the auditor or the surrogate as shows the surrogate in his decree.

his right to the 6 per cent. upon any On appeal

specific collection made by him, if any

were so made. Held, That the construction given to

Decree affirmed. the 14th clause of the will by the sur Opinion by Davis, P.J.; Brady and rogate is substantially correct; that the Daniels, J.J., concurring.


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