326
DDERAL REPOR'rER,
vol. 44.
toa grant: under this statute. As the Catholic missionaries did not im'prove the land claimed in this suit, nor occupy it, except by permission from and in subordination to the Hudson's Bay' Company, it is impossible for me to conclude that congress intended to or did the valuable buildings andimprovements on this land whichthatcompany owned to the church, a conclusion not to be escaped from if the land covered by those improvements was granted. The supreme court of the United States, in the .case of Society v. Dalles, 107 U. S. 336,2 Sup. Ct. Rep. 672, construed this act as a grant of only the land actually occupied as a station among the Indian tribes. Another view that may be taken of the case is this: If the act is not to be regarded as a grl)nt of specific land, capable of being identified by the description the act, then it must be a floating grunt, and a grantee under it could acquire no vested right to any particular tract until a selection had been made, and the boundaries of the granted premises ascertained and established. No steps tending towards this end were taken until after the land now claimed had been appropriated and duly set apart for governmental use. It was then too late. The rights of the United States to this land as a miiitary reservation are older, and for that reason, if for no other, superior in equity to the claim of the plaintiff. Findings may be prepared in accordance with this opinion, and a decree will be entered .in' favor of the defendants.
S [PES
11. SEYMOUR
et al.
(Oilrcu/tt Oourt, D. 0010'1'000. December 20, 1890.) AO'rIONS ON CONTRACT-PLEADING-COMPLAINT.
A written contract provided that in consideration of $800. as well as for the services rendered, S. agreed to pay plaintiff a commission of 10 per centum of the cash that might be received for a certain mine, on a sale thereof, and also to deliver to plaintiff "all certificates of shares of stock that may be received in payment for the said * * * mine, over and above the amount of such shares at the price at which I may aceept the same as will make the net price received by me for the said mine In an action against S. and other persons, the complaint alleged that the mine had been sold by S. for $200,000 in cash, and $800,000 in stock, and averred thatplainti!! was entitled to recover from defendants his proportion of both cash and stocks. The complaint showed that the consideration from plaintiff for the contract was about $1,llOO, but did not set forth any of the negotiations or the understanding of the parties as to the agreement. that a demurrer to the complaint would be sustained, a8 the meaning of the agreement did not su1llciently appear.
At Law. Ruling on demurrer. T. A. GrefJn, for plaintiff. Willard TeUer, for defendants. HALLET'i', J., (oraUy.) William B. Sipes brought suit against;J. Fenton' Seymour, Ellen R. Seymour, and William G. Pell, on a contract whi'ch I will read:
SIPES 'V, SEYlIWUR.
327
"For, and in consideration of, the sum of eight. hundred (800)dolJars to me in hand paid, as well as for services rendered, I hereby agree to pay, or cause to be paid, to William B. Sipes, of the city of New York, or to his legal representatives, a commission of ten (10) per centum on the cash that may be received for the Slide mine. located in Gold Hill mining district, Bonlder county, Colorado, on a sale of the same being effected in London or in Europe, and also to allow and canse to be deli vered to the said Sipes, or to his legal representatives, all certificates of shares of stock that may be received in payment for the said Slide mine over and above the amount of such shares at the price at which I may accept the same as will make the net price received by me for the said mine two hundred and twenty-five thousand (225,000) dollars. "New York, Dec. 19, 1881. [Signed] If J. F. SEYMOUR. " Plaintiff avers that the mine was sold by Seymour to one Halderman· for $200,000 cash, and $800,000 in stock, and thereupon he became en. titled to have from defendants $25,000 in money on account of the cash received, and $575,000 on account of the stock. A demurrer was presented to the complaint on several grounds, as that it is ambiguous and unintelligible; that there is a misjoinder of defendants, and some other matters. The contract upon which the suitis founded is not easily understood. If it stopped with the first clause,-that which relates to the payment of 10 per cent. of the cash which might be received from the Slide mine,-it would be plain enough; but the second clause, which provides for delivering all certificates of shares of stock over and above what would make the net price of the mine $225,000, seems to put the whole instrument into some doubt. Whether it was intended that' the mine should be sold for cash only, or for stock only, or for both cash and stock, is not stated in the complaint, and does not appear in the agreement itself. Looking to the agreement only, it may mean one. thing or another, according to the understanding of the parties at the timo it was drawn. If it was intended that the mine should be sold for cash only, if that was the expectation of the parties, then the first part of the agreement only will be operative, which provides for the payment of 10 per centum of the cash so received. Hit was intended that the mine should be sold for stock in a company to be organized, and that the entire payment should be made in stock, then it wQuld seem that it was the understanding of the parties that Seymour should have a price fixed upon the stock, something different and aside from its face value probably; and, looking to that price, which would be fixed by the parties purchasing the mine and himself, he would take enough of the stock to amount to $225,000, according to the price so fixed, and all of the stock in excess of that number of shares would go to Sipes under this agreement. If it was the expectation of the parties that the property would be sold partly for cash, and partly for stock, as, according to the averment in the complaint, the fact was,-that is to say, if the mine was so sold partly for cash and partly for stock,-then it is difficult to understand the agreement at all, because apparently under the first clause of the agreement Sipes was have 10 per cent. of the cal:lh, and if the cash was less than $225,000, then Seymour was to take enough of the stock
FEDERAL REPORTER,
to make'up$225,000 at some price or another, and Sipes was to have 1:\11 of the excess over that number of shares. It is quite clear that the negotiations of the parties, or at least what their understanding was in respect to this matter, 111ust be ascertained before we can come to any correct construction of the agreement; and nothing of that kind is set forth in the complaint. This instrument was drawn and executed in New York, and, according to the complaint, the consideration proceeding from Sipes to Seymour was $800 cash, and about $500 more paid out for maps and plans to be used in making sale of the mine. That was something like $1,300. Upon that payment, Sipes, if his own statements in this complaint an: to be regarded, is to recover from the defendants here over $500,000. Such an agreement as that would require very close scrutiny to see whether it is not within the usury law of the state of New York, where the paper was drawn. In any event, before we can reach a conclusion as to what the agreement may be, and before we can allow any action to stand upon it, we must know what the understanding of the parties ,vas at the time this agreement was drawn, what they were trying to express in writing, not for the purpose of varying the terms of the writing, or contradicting it, not for the purpose of avoiding it in any way, but merely to understand it, to know its meaning.. The plaintiff has not in his complaint. set forth any ofthe negotiations. He has not told us with what understanding the parties made this agreement. Therefore we cannot reach any conclusion upon it. I think the demurrer ought to be sustained. The plaintiff ought to be required to give more of the circumstances of the agreement between the parties at the time this instrument was drawn, so that we may know what theory they were proceeding upon when they made this paper. It may be true, as is contended by the plaintiff, that if this. was drawn by J.F. Seymour, with the authority and under the direction of the other defendants in the suit, Mrs. Seymour and Pell, they are bound equally with J. F. Seymour. I think probably that is true; but the more important matter for us in the outset is to get some understanding about what the agreement means; what the purpose of the parties was when they framed it; how it is to be construed in order to determine the rights of the parties in respect to it.
lETNA LIFE INS. CO. V. LYON COUNTY.
320
(Circuit Court, N. D. Iowa, W. D. December 15, 1890.) 1. COUNTIES-INDEBTEDNESS-REFUNDING BONDS·
. Refunding bonds issued by a county for the purpose of taking up a prior valid indebtedness of the county are not rendered invalid by the fact tbat they exceed the constitutional limitation on the indebtedness of counties and other municipalities.
2.
SAME-ACTION ON
Representations made by an agent appointed by a county board "for the purpose of funding and refunding the county indebtedness" tbat all the indebtedness proposed to be refunded by means of such bonds bas been reduced to judgment, and then bonded, thus rendering the new bonds valid, though they exceed tbe constitutional limitation, do not estop the county to sbow the c{)ntrary, and that the bonds are invalid as against a purchaser thereof from sucb agent, as tbe county records are tbe best evidence of the purpose in issuing tbe oonds, anci purchasers are bound.to take notice thereof.
8.
SAME.
Where a county, having power to fund its indebtedness, issues bonds in payment of judgments standing in full force against it, it cannot attack the validity of the bonds, in an action thereon, by that tbejudgments against it are invalid because in excess of the constitutional limitation of its indebtedness. In an action at law on county refunding bonds which are part of a particulal' series, where a portion only of the amount for which such series of bonds was issued constitutes a valid and enforceable indebtedness of the county by reason,of the constitutional limitation on its indebtedness, tbe court cannot determine the order in whicb the bonds were sold or tbe rights of the respective owners thereof, and judgment must be rendered for defendant witbout prejudice to plaintiff's right to establish its claim in some other proceeding.
4.
SAME-JUDGMENT WITHOUT PREJUDICE.
At Law. Action on interest coupons. By consent of parties, this easEl was tried to the court, and, from the evidence submitted, the court makes the following finding of facts: (1) Thie action is brought upon 410 interest coupons, for $30 each, originally attached to certain negotiable bonds, duly executed by the rlefendant, the county of Lyon, on the 1st day of May, 1885, and thereafter negotiated and delivered to the purchasers thereof, under the circumstances hereinafter to 047, inclusive; 05ti stated, the said bonds being numbered as follows: to 090, inclusive; 096 to 0120, inclusive. (2) The defendant, the county of Lyon, is a municipal corporation, organized under the laws of the state of Iowa, within the meaning of section 3, art. 11, of the constitution of the state of Iowa, and was so organized earl,}' in the year 1872. (3) The first state and county lists of the county were those for the year 1872, and the amount of taxable property within the defendant county, as shown by the state and county tax-lists for the various years since the organization of the county, is as follows:
For the year 1872 "" "1873... "" "1874............. "" .. 1875. ": .. 1876............. U;·77 ·..... 1878 $ 499,099 96 For the year 1879 $ 915,133 28 1,009,444 56 " " "1880........ 1,066,707 00 997,822 62 " " "1881. 978,259 00 1,061,HJ6 63 " . . "1882... 989,55000 1.081,356 09 : 1888............. 1,384,28900 885,262 80 , , " ,,1884........ 1,437,527 00 88 9,75785 .. 1885...... 1,558,0403 00
(4) The first bonds issued by the county were issued July 29, 1872. During the year commencing July 29, 1872, and ending July 28, 1873, the sum of $55,000 in bonds was issued by the defendant county, under chapter 174 of
