MCMURRAY et al. v. MORAN et al.

The 'Nevada & Oregon Railroad Company,' a corporation of the state of Nevada, by its mortgage or deed of trust executed April 25, 1881, bargained, sold, and conveyed to the Union Trust Company of New York all of the property, franchises, and estate, real and personal, then existing and to be acquired, including its line of road constructed or to be constructed or completed, to secure the payment of 3,000 bonds of $1,000 each, to be issued by the mortgagor, and made payable on the 1st day of June 1930, at the city of New York, with interest, semi-annually, at the rate of 8 per cent. per annum. Each bond contained an agreement that, if there was a continuous default for six months in the payment of interest, the principal and all arrearages of interest thereon should, at the option of the holder, become immediately due and payable.

Of the 3,000 bonds authorized to be executed by the railroad company, only 600 were issued and certified by the trustee. The appellees, Moran Bros., became the holders for value of 310 of the bonds so certified, paying therefor $248,000. In respect to those bonds, there was such default in meeting the interest thereon that appellees became entitled to declare the principal due and payable; and, having so declared, the Union Trust Company brought suit in the court below for the foreclosure of the mortgage or deed of trust, the sale of the mortgaged property, and the application of the proceeds of sale in payment of the bonds held by Moran Bros., and of such other bonds as were entitled to share in the proceeds.

The present suit was brought by Moran Bros. against the appellants as the holders of 147 of the 600 bonds certified by the trustees. It proceeds upon the theory that as between the appellees holding the 310 bonds first issued, and the appellants holding the 147 subsequently issued, the former were entitled to priority in the distribution of the proceeds of the sale of the mortgaged property.

It appears from the evidence that 'The Nevada & Oregon Railroad Company,' a Nevada corporation, entered into a written contract, of date August 26, 1880, with one Thomas Moore, for the construction by him of certain divisions of its road, whose aggregate length was 185 miles. A part of the consideration for Moore's undertaking this work was the representation of the company, embodied in the contract, that 'fifty-year eight per cent. first mortgage bonds, to the extent only of ten thousand dollars per mile, and capital stock to the extent only of twenty thousand dollars per mile for the first one hundred and eighty-five miles, will be issued, making a total of eighteen hundred and fifty thousand dollars in first mortgage bonds, and thirty-seven hundred thousand dollars, par value in stock, upon the entire one hundred and eighty-five miles.' The contract further provided for the payment to Moore of $100,000 in lawful money, $310,000 in first mortgage bonds, and $450,000 in the stock of the railroad company, at par, for the Reno division as far as Beck with Pass. The contractor was to have all the first mortgage bonds as the work of construction progressed.

This contract was supplemented by another one, executed December 4, 1880, whereby the time and order, of performance, as well as of payments, were changed. It provided that the Reno division, from Reno to Beckwith Pass, should be first constructed; that 'upon the shipment of 1,000 tons of rails and splices the company should pay to the contractor $200,000 in cash, and upon arrival of same at Reno $150,000 in first mortgage bonds and $300,000 in stock, and upon shipment of balance of rails for the present work $160,000 in first mortgage bonds and $150,000 in stock;' that 'the company shall deposit with the trustee in New York, on or before January 10, 1881, $10,000 in cash, and the $450,000 in stock, and, on or before January 25, 1881, the $310,000 in the first mortgage bonds;' that this contract should not be 'construed as abating or impairing any portion of the contract of August 26, 1880;' and that 'the entire stock to be issued upon the line from Reno to the temporary terminus as herein stated [Beckwith Pass] shall be limited to $600,000, without reference to any excess in distance over thirty miles, and the first mortgage bonds upon the same to $310,000.'

A separate contract was made on the same day, with reference to the construction of the road from Beckwith Pass to the Oregon line.

The company having failed to make payments to Moore, as it had agreed to do, on account of work done on the Reno division, another cn tract was made February 1, 1881, by which the company stipulated to deliver to the contractor the $450,000 of stock and the $310,000 first mortgage bonds as soon as the certificates and bonds could be engrossed and signed. It was provided that this contract should not impair the contracts previously made between the parties.

On the 25th of April, 1881, the 'Nevada & Oregon Railroad Railroad Company,' the company first above named, was organized. It was the successor, and acquired all the rights, franchises, and property, of 'The Nevada & Oregon Railroad Company' of 1880, and assumed to meet all the contract obligations, and to pay all the debts, of the old company. The mortgage, heretofore referred to, of April 25, 1881, was executed by the new company.

By contract of date April 26, 1881, the new company adopted, confirmed, and renewed Moore's contracts with the old company, and subsequently, May 24, 1881, the contract for the construction of the road from Beckwith Pass to the Oregon line was extended one year.

Between the last two dates, namely, on March 23, 1881, the appellees, Moran Bros. and Moore, entered into a contract, by which the former agreed to pay the latter the sum of $248,000, in specified installments, upon completion, within certain periods named, of five, ten, twenty-one, twenty-six, and thirty-one miles of Reno division against the delivery of the first mortgage eight per cent. bonds of the 'Nevada & Oregon Railroad Company.' By that contract, Moran Bros. became entitled to receive the bonds on installments, as the above number of miles were constructed.

Subsequent transactions between the parties are so clearly and succinctly stated in the opinion delivered in this cause by Judge SABIN (20 Fed. Rep. 80) that the following extract is made from it: 'Moore went on under these various contracts, and graded 32 miles on the first section north from Reno, and commenced grading on the 170 miles running north from Beckwith Pass. He also laid about 17 miles of track form Reno northerly, and provided certain rolling stock and other materials. Moore became embarrassed, and on about November 16, 1881, abandoned his contracts and left the state. From that time forward the company assumed the management of the road, and conducted its future operations as best it could. The company was in a very embarrassed conditions. It was largely in debt, and without money or resources of any kind to meet its liabilities. It had attempted to build and equip a railroad without first having provided any adequate means for so doing.

'On the 25th of March, 1882, Moore, as party of the first part, the railroad company, defendant, of the second part, D. W. Balch, H. J. McMurray, A. H. Manning, W. F. Berry, and C. A. Bragg, of the third part, and Alvin Burt, as trustee, of the fourth part, entered into an agreement, the object of which was to adjust, as therein provided, the then unsettled business matters between Moore and the railroad company. This contract recognizes the fact that the railroad company had issued to Moore these 310 first mortgage bonds; that he had negotiated them with Moran Bros., complainants in the second above-entitled suit; that he had been paid for 210 of said bonds by Moran Bros.; and that they held the remainder of said bonds subject to contract with Moore, to be paid for as the road was completed. By this contract Moore surrendered his rights in these bonds for the benefit of the railroad company, which subsequently drew the money due upon them. Section 11 of this contract is as follows:

"The parties of the second and third part hereby covenant and agree for themselves and the other stockholders, and for the creditors of the party of the first part, as follows, viz.: * * * (b) That no second mortgage shall be made, issued, or recorded upon said railroad, or any portion thereof.

"That the issue of first mortgage bonds thereon shall be limited to $10,000 per mile of completed road, or such an amount that the annual interest charge thereon shall not exceed$ 800 per mile of completed road; and also that the issue of capital stock of said company shall be limited to $20,000 per mile of said railroad.'

'Pursuant to this contract, on the 26th of April following, Moore and Moran Bros. join in a communication to Balch, as president of said railroad company, informing him of the terms upon which he can, as the road is completed, draw upon complainants for $75,000, the balance due upon these 100 bonds. These funds were so drawn, and with them the road was completed the 31 miles. It should be noted that this contract of March 25, 1882, was entered into by Balch as president of, and on behalf of, said railroad company, pursuant to a resolution of the board of directors of said company adopted January 13, 1882, prior to his departure from Reno to New York for the purpose of endeavoring to effect a settlement of the business of the company. And this contract, if not formally ratified by the directors of the company by resolution adopted to that effect, was actually ratified by the company by its acting upon it, carrying out to some extent, at least, its provisions, and accepting the benefits arising therefrom, and especially in drawing and using the balance due upon the 100 bonds paid by Moran Bros. after its execution. Now, all of these various contracts conclusively show this: that this railroad company, defendant, and its predecessor, had repeatedly contracted with Moore, and promised and held out to the public that upon no part of the line of its road should there be issued more than $10,000 in first mortgage bonds for each mile of completed road. It was upon this condition and agreement that Moran Bros. purchased these bonds. Charles Moran, one of the complainants, testifies that the railroad company issued its circulars to that effect; that he saw them; that this limitation was the condition in the purchase of the bonds; that they would not have advanced $11,000 per mile upon the road. He is supported in this by the testimony of Moore, Fowler, and Balch, and by every contract in evidence executed either by the railroad company, defendant, or by its predecessor, and subsequently ratified by the Nevada & Oregon Railroad Company; and this testimony is wholly uncontradicted.'

The decree below was accompanied with a finding of facts. Among the facts so found were the following:

That before and at the time the 310 bonds were sold the railroad company, in consideration of their purchase, obligated itself in writing that it would not issue or sell any more than ten of said bonds, or $10,000 worth, for each mile of completed road, and no more than 310 for or upon the Reno division, the defendants, and each of them, having notice of such agreement.

That while these agreements were in force, and after Moran Bros. had purchased and paid for the 310 bonds now held by them, the company, by and through its then officers and trustees, defendant Balch, trustee and president; King, trustee and secretary; Bragg, Manning, and Berry, trustees; McMurray, stockholder; and Deal and Webster, attorneys,—issued and advised, caused and procured to be issued, the bonds mentioned in the answer, 147 in number; the defendants, and each of them, well knowing at the time the terms and conditions of the contracts limiting the issue of bonds, and that complainants had purchased for value the 310 bonds mentioned in the bill of complaint.

That the 147 bonds, and each of them, were procured from the Union Trust Company of New York by defendant Balch, under and in pursuance of a resolution of the board of trustees of the railroad company, adopted by Balach, Bragg, Manning, Berry, and King, acting as such board, and for the purpose expressed in the resolution, and represented to the Union Trust Company, of negotiating them for value, and after said bonds were so procured the board delivered them to the original holders thereof without payment therefor of any sum of money whatever.

That, except the 10 bonds issued to the defendants Webster and Deal, the remaining 137 of the 147 bonds were delivered fr and in consideration of pre-existing debts, and principally for debts owing by Moore, and not debts owing by the company, and in large part for claims that Balch, McMurray, Manning, Berry, and Bragg had assumed and agreed to pay; the bonds issued to Webster and Deal having been delivered in consideration of professional legal services to be rendered by them as solicitors for the defendants, and not delivered until after this suit was commenced; and,

That the defendants, who in the answer are alleged to hold a portion of the 147 bonds, and each of them, received such bonds, and hold the same as security for debts which existed at and before the time the bonds were acquired by them; and none of such persons are bona fide purchasers of said bonds for value.

Upon this state of facts it was decreed that the complainants were entitled to have the amount of their bonds, principal and interest, paid out of the proceeds of the mortgaged premises, and that none of the defendants were entitled to participate in or share such proceeds until after the payment in full of the principal and interest of the 310 bonds, nor unless there should be a surplus remaining; and if there should be such surplus, then the defendants were entitled to participate in the distribution, each in proportion to the amount of the bonds held by him.

W. E. F. Deal and Horatio C. King, for appellants.

Wheeler H. Peckham, for appellees.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.