Page:North Dakota Reports (vol. 48).pdf/625

 its sale must be included in the purchase price, or the bond will be sold at less than par. Foot note to Miller v. Park City, 30 A. & E. Ann. Cases. &s, and the cases therein cited; State v. Delafield, 8 Paiges Ch. 523, appearing in 4 N. Y. Ch. Rep. 529; State v. Delafield, 26 Wendell (N. Y.) 192, appearing in 32 N. Y. Common Law Repts. 192; State v. Delafield, 2 Hill (N. Y.) 159, appearing in 33 N. Y. Common Law Reports, 159; 135 L. R. A. N. S. 789.

, J. This is an action to enjoin the defendants from carrying out the provisions of a certain purported contract for the sale of bonds of the state of North Dakota. From a judgment entered in the district court of Burleigh county, enjoining the defendants from delivering any further bonds under the contract and from selling any bonds of the state at less than par and except for cash, the defendants have appealed. All of the facts necessary to a decision of the questions presented on appeal are stipulated, and are, in substance, as follows:

The agreement arrived at is evidenced by certain letters. The first and principal one, dated September 21, 1921, to Spitzer, Rorick & Co., of Toledo, Ohio, reads:

“September 21, 1921.

“Spitzer, Rorick & Co., Toledo, Ohio—Dear Sirs: We hereby sell you the following bonds of the state of North Dakota real estate series : $140,000 due in 1941, without prior option; $525,000 due in 1946, without prior option; $715,000 due in 1948, without prior option; $3,900,000 due at date mutually agreed upon.

“The bonds due in 1941 are in denominations of $500 each, and the balance are in denominations of $1,000 each and are to be made payable, by indorsementendorsement [sic] thereon of an undertaking in which the Bank of North Dakota agrees to pay said bonds, both principal and interest, at the Empire Trust Company in the city of New York and state of New York. These bonds are the direct and general obligation of the state, and they are also secured by the deposit with the state treasurer of a like amount of real estate first mortgages on farms in North Dakota. All of said bonds bear interest at 534. per centum per annum, payable semiannually, both principal and interest payable in gold coin of the present standard of weight and fineness, and are to be unqualifiedly approved by Mr. Chas. B. Wood of Chicago as the direct and general obligation of the state and as to the security and sufficiency of the taxing power back of these bonds to pay them.