Page:Federal Reporter, 1st Series, Volume 8.djvu/21

 •WAYNESVILLE NAT. BANK V. IE0N8. 7 �in one year, for the sum of thousand dollars; now, this instrament of �■writing is to show that said notes are made for the accommodation of the Miami Valley Railway C5ompany, and said compauy hereby agrees and binds itself to pay same at maturity, and said company has placed in the hands �of, as trustee, flrst-mortgage bonds of the company, in the ratio of �three to one of the liability incurred, to indemnify said parties against any loss by reason of making said note; and in the event of the Miami Valley Railway Company f ailing to pay said notes at maturity, or within ten days (10) thereafter, then the said trustee is hereby authorized to realize the money upon said bonds at such rate as he shall deem proper, and apply the proeeeds thereof to the payment of note: provided, however, sale of bonds shall not be made until authorized by a majority of the makers of said note, and when said note shall have been paid by the Miami Valley Eailway Company, the aforesaid bonds shall be returned to said company, and the treasurer of the company be also authorized and instructed to deliver aforesaid bonds to said trustee in order to consummate the transaction." �I charge you that these papers do not constitute any pledge or agreement on the part of the railway company to use these notes for the purposes specified in the preamble, and for no Other purposes. Those purposes are referred to in the preamble by way of recital as indicating the grounds and reasons for the necessity which, in the opinion of the board of directors, existed for raising more f ands than they then had in their control. But I am unable to perceive in it any pledge or agreement to use the notes in any other way than might at the time seem best to the board of directors for the general purpose of carrying on the interests in which they were engaged. I think, therefore, so far as any such agreement is deduced from this paper, that such elaim is unfounded. I mean to be understood that the use of the note in maintaining the credit of the company, by the payment of any of its debts, is not a breach of the faith upon which the note was given. �Now, then, going beyond that paper, there is still a question of fact outside of it, or possibly the testimony taken in connection with it, from which it is possible to claim the existence of such an under- standing, which cannot be deduced from the paper itself. That is for your consideration. You are to examine the oral testimony in addi- tion to this and in connection with it, and to find what the facts are in regard to the claim,^ — whether there was any understanding and agree- ment outside of the paper, between the makers of these notes and the railway company, by which it was understood and agreed, as the condi- tion on which these gentlemen signed these notes, that they were to be signed only and merely for the purpose of procuring rights of way and in payment of liabilities for construction thereafter to be incurred. ��� �