City of Winona v. Cowdrey

ERROR to the Circuit Court of the United States for the Districk of Minnesota.

This was an action against the city of Winona upon certain coupons attached to bonds, referred to in a contract between the city and the Minnesota Railway Construction Company, which is as follows:--

'This agreement, made this twenty-third day of April, 1870, by and between the city of Winona, of the State of Minnesota, and the Minnesota Railway Construction Company, a corporation organized under the law of the State of Minnesota, and now engaged in the construction of the St. Paul and Chicago Railway, witnesseth:--

'That whereas the building of a railroad from St. Paul to Winona is of great public utility and benefit, and a public improvement, which, it is believed, would be particularly beneficial and advantageous to the city of Winona; and whereas said St. Paul and Chicago Railway will connect, by bridge or ferry, at Winona with the La Crosse, Trempealeau, and Prescott Railroad, now being constructed, and will, when both railroads are completed, open and furnish an unbroken line of travel by railroads through Winona, between St. Paul and Milwaukee and Chicago, which also is considered especially beneficial and advantageous to the city of Winona; and whereas, in view of the premises, and as an inducement and part compensation to the Minnesota Railway Construction Company, the city of Winona is willing and roposes to issue and deliver to the said construct on company its bonds to the nominal amount of $100,000, to aid in the building of said railroad from St. Paul to Winona, and, for the purpose of thus securing a line of travel by railroad between the East and the West through said city, as aforesaid, the city of Winona, in consideration of the premises, hereby agrees, the Minnesota Railway Construction Company keeping and performing their agreement as herein set forth, to make, sign, seal, and deliver, for the use and benefit of the said Minnesota Railway Construction Company, its obligations or bonds, is sums of $1,000 each, to the aggregate amount of $100,000, obligating the said city to pay the amount specified therein to Russell Sage and others, of the city and State of New York, or to the bearer, in twenty years from the first day of January, A.D. 1871,-viz., on the first day of January, A.D. 1891,-in the city of New York, with interest at the rate of six per cent per annum; the interest to be paid semi-annually, on the first day of January and July of each year, in the city of New York; and to deposit said bonds with the First National Bank of St. Paul, in the State of Minnesota, to be held by said depositary in escrow or in trust, to be delivered as hereinafter provided.

'The Minnesota Railway Construction Company hereby, on their part, the city of Winona keeping and performing its agreement as herein contained, agree:--

'First, To either, in their own name or that of their successors or assigns, or in the name of the St. Paul and Chicago Railway Company, build and equip a good and substantial railway from the city of St. Paul to the city of Winona (excepting a bridge across the Mississippi River at Hastings), and put it into operation within three years from this date, and to connect at Winona, by bridge or ferry, with the La Crosse, Trempealeau, and Prescott Railroad.

'Second, That said part of raid railway, between a point on the Winona and St. Peter Railroad at or near Minnesota City, in Winona County, and the village of Minneiska, in Wabasha County, shall be built, equipped, and put into operation within one year from this date.

'Third, That the La Crosse, Trempealeau, and Prescott Railroad, from its terminus opposite Winona, as now located and fixed (which terminus shall not be changed without the consent of the city of Winona), to a point on the Milwaukee and St. Paul Railway east of North La Crosse, shall be built, equipped, and put into operation within the year 1870.

'It is further agreed, by and between the parties hereto, that the said bonds are to be, in form, plain unconditional obligations, and substantially of the form and tenor of schedule A, hereto annexed, and are to be executed as soon as practicable, and placed in the custody of said depositary, to be delivered as hereinafter provided.

'It is further agreed, as to the delivery of said bonds, as follows:--

'First, That if the said La Crosse, Trempealeau, and Prescott Railroad is not built, equipped, and put into operation, as aforesaid, between the points aforesaid, within the year 1870, then, and in that event, the said bonds and coupons shall be by said depositary returned to the city of Winona, or to its legally authorized agent.

'Second, That if a railroad from a point on the Winona and St. Peter Railroad, at or near Minnesota City, in Winona County, to Minneiska, in Wabasha County, is not built, equipped, and put into operation, as aforesaid, within one year from this date, then, and in that event, said bonds and coupons shall be by said depositary returned to said city of Winona or its legally authorized agent.

'Third, That if a railroad is not built, equipped, and put into operation from St. Paul to Winona (except the bridge at Hastings), as aforesaid, connecting at Winona, by bridge or ferry, with the La Crosse, Trempealeau, and Prescott Railroad within three years from this date, then, and in that event, the said bonds and coupons shall be by said depositary returned to said city of Winona, or to its legally authorized agent; but in no case shall the said bonds, or any part thereof, be delivered by said depositary to the said Minnesota Railway Construction Company until a truss railroad bridge is constructed across the Mississippi River, at Winona, connecting the said St. Paul and Chicago Railway, or the Winona and St. Peter Railroad, with the La Crosse, Trempealeau, and Prescott Railroad, at the present terminus of the last-named railroad. But if, in each and every of the respects above mentioned, the said railroads, and the several parts of said railroads, are built, equipped, and put into operation within the times and in the manner above agreed, and said railroad bridge constructed as above provided, then, and in that event, and in that event only, shall the said bonds be delivered to said Minnesota Railway Construction Company by said depositary.

'It is further agreed, that, while said bonds are legally held in custody or trust by said depositary, as aforesaid, the interest-coupons, as they mature and become due, are to be delivered to the said construction company.

'It is further agreed, that the city of Winona shall have no cause of action against the Minnesota Railway Construction Company, by reason of the failure to build said lines of railroads, or any part thereof.

'In witness whereof, the said city of Winona has authorized their mayor to sign this instrument in their corporate name, and the city recorder to attest the same with his official signature and the seal of the city, and the board of directors of the Minnesota Railway Construction Company have authorized their president and secretary to sign, seal, deliver the same in their corporate name.

'CITY OF WINONA,

'[SEAL.] By WM. S. DREW, Mayor.

'Attest: CHAS. F. SCHROTH, City Recorder.

'MINNESOTA RAILWAY CONSTRUCTION COMPANY,

'[SEAL.] By RUSSELL SAGE, President.

'Attest: JAMES M. McKINLEY, Assistant Secretary.'

Schedule A, referred to in the foregoing contract, is as follows:-- 'Form of Deed. 'STATE OF MINNESOTA, CITY OF WINONA.

'No. $1,000.

'Know all men by these presents, that the city of Winona, in Winona County, State of Minnesota, is indebted to Russell Sage an others, of the city and State of New York, or bearer, in the sum of $1,000, which they promise to pay to the bearer hereof, on the first day of January, 1891, in the city of New York, with interest thereon from the first day of January, 1871, at the rate of six per cent per annum, payable semi-annually at the Importers' and Traders' National Bank, in the city of New York, on the first day of January and July in each year, on the presentation and surrender of the annexed coupons as they severally become due.

'This bond is one of a series of like tenor and effect issued by the city of Winona, to the amount of $100,000, to aid in the construction of a railroad from St. Paul to Winona.

'In witness whereof, the city of Winona has caused this bond to be sealed, signed, and delivered in their corporate name, by order of the city council of said city, pursuant to their resolutions in this respect passed _____, 1870.

'[SEAL.] THE CITY OF WINONA,

'By _____, Mayor.

'Attest: _____, City Recorder'.

The remaining facts are set forth in the opinion of the court, and it is unnecessary to restate them here.

There was a verdict for the plaintiff, and judgment was entered thereon.

The city of Winona sued out this writ.

Argued by Mr. Thomas Wilson for the plaintiff in error, and by Mr. Charles E. Flandrau for the defendant in error.

MR. JUSTICE DAVIS delivered the opinion of the court.