The plaintiff omits to say in his complaint that he himself used due care and caution at the time of this accident. That, I think, is a matter which must appear upon the evidence. While it may be that he is not required to offer any evidence directly to the point that he was in the exercise of care and caution at the time of the accident, it must appear from all the evidence that the fact was so; that is to say, that he himself was not negligent. He fails to aver, also, that he was not informed of the character of this person #ho was employed with him. He says nothing upon that subject. ,He avers that the defendant had information of the unskilfulness and untrustworthiness of this man, but says nothing as to himself. It must appear from the evidence that he was ignorant of the character of this person, beca..use if he knew/oihis character, knew he was a person who was unfitted for the service, or had the same means of knowledge as the defendant, it was in his own wrong that he continued in service with such person, unless, indeed, there were. ,some special circumstances, as that complaint had been made and the defendant had promised to dismiss this individual and employ another in his stead;qut nothing of that kind is averred. He says whatever as to his own knowledge of the capacity and fitness, of this with him in the precise service person, who was certainly which the plaintiff was engaged in. He says nothing whatever.8;s to his capacity and fitness. He should'state something upon, that point, as to whether he was informed that this personwss unfit for the; seivice in which he was engaged. , On these grounds the demurrer will be ,
(Uircm't' ()ourt, W. D. Missouri. November, 1880.,
MUNICIPAT, BONDe-RIGHTS OF BONA
Where the charter of a railroad company granted to it the privilege to obtain county subscription to its stock, and the, defendant county subscribed for stock in the company, and issued bonds under the authority conferred by the charter holders, not· of the company, such bonds are valid iii the hands of "W'ithstanding there was,at th,e time of the subscription and issuance of the bonds, a special statute prohibiting, the county court from taking stock unless the subscription was voted for by a majority of all the resident tax-payers. The issuing of the bonds raises the presumption that all preliminaries,.including the election required, have been complied with; and the bona fld' holder is not bound to look behind the question of p o w e r . ' ,
BURB tI. OHARITON OOUN'n.
Henderson et'Shields, for plaintiff. O. W. Bell and O. L. Dobson, for defendant.
KBEKEL, D. J. The legislature of Missouri, on the twentieth day of February, 1865, granted a charter to the Mississippi Railroad Company, to whi.ch defendant county in 1869 issued bonds in payment of a SUbscription of stock made thereto. This suit is brought on due and unpaid coupons of said bonds. The bonds issued 'are made payable to said railroad company or bearer. It appears that at the time of granting the charter and at the time of issuing the bonds there existed a special a"t, applicable to the defendant county, providing that whenever the oountyof Chariton wishes to subscribe to the capital stook of any railroad oompany the countyeourt shall cause an election to be held, and if a majority of all the resident tax-payers of said county shall vote for the Bubscription, the oounty court shallsuhscribe. The county Murt is prohibited by the aot·from taking stock unless the subsoription was voted: for by a majority of all the resident tax-payers. ' It is claimed that because the proceedings which led'to the subsoription and issuing of the bonds were not had under this 'special act, but under iheprovisiotls of the charter, the bonds are therefore void for the want of power in the county court to make the subscription and issue the bonds. The bonds on their face recite that they were issued under the authority conferred by the charter of the oompany. The question whether this special act of March 12, 1859, relating to defendant county, was in force at· the time of tlie issuing of tne bonds, I shall not stop to discuss, holding that, even if it was in force, it does not affect the legality of these bonds. The charter of the Mississippi Railroad Company granted to it the privilege to obtain county subscription, and the defendant county could avail itself of the opportunity to subscribe either under this power or the power granted by the special act, assuming that the latter was in force. it, can scarcely be doubted that the legislature of Missouri had the power to except this railroad company out of any limitation which might have existed' by virtue of thespElcial act. Aside from all this, it has been held that the issuing of the bonds raises the presumption that all preliminaries, including the election required, have been complied with, and a bona fide holder is not bound to look beyond the question of'power. Oity of Lexington'v. Butler, 283,;- Flagg v. Palmyra, 33 Mo. 440. There is an abundance of po;wel'>,as c1lt1Jned by either party, to issue bonds. The recital in the bonds that they were v.12,no.l0-54
issued under authority granted by the 'charter might· be erroneous, that is sufficient. yet, if the special act l\Iuthorized the issuing of The question is, did power exist? Whether the sot,nce thereof was correctly pointed out can make no difference, Bqt it is said that the provisions of the specm,l act define who shall vote, and that these have not been complied with. The answer is that the tribunal, .the county court, was by law made the judge of such matters, and When they issued the bonds innocent holderlJ had a right to presume ,that all preliminary requirements had been complied with. The objections urged against the validity of the bonds are not that there was no power to issue them, but that no'power existed under the eharter, because the speoial act limits the power there granted. : The defendant county urging this objection can only.do soon the &sBumption that the special act is in force. If so, there existed· power to,issue the bonds; and the same having -been issued, the law will attribJlte the exercise of the authority to thettue souroe in the furtheranee ,of justice and good faith. Eight years of interest have been paid 'On these bonds,' thus affirming their validity and ouring itl'egularities, so far 8S such acts tend in that direction. The law Of the case arising lipon the facts is with the plaintiff, and judgment Q,()cordingly.
L4WRENCE, Jr" and another?!. MORRISANU
(Ctrcuie Court, E. D. New
1,: CONTRACT BY LE'fTEll- ACCEPTANCE OF PROPOSITION -- ORAL MERGED. . , _ ,
Where libellants made an offer by the respondents to alter and repair one of its steam-boats and "to build: out the frameB we have talked of," which offer was accepted by letter on the part,of the rtlspoUclerits,'such letters constituted a wtitten contract, and all prio(' cpnversations aq.d statements were merged in it.
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2. SAME-STATEMENTS liOT GUARANTms.
Statements made in advance of the acqeptanceof a proposition;by1lltter, of what it was thought would be the result of a given' plan. are not guaranties of of such result. ,_. 3, SAME-PAYMENT-TAKlNG NOTE, EFFECT <iF·. '
Where, hythe written contract, payment was to;be made in f,t,el equivalent ,,'the taking of a note for,the'balance dllc on the perform!ltl,lce of the contract, isnot a waiver of the right to sue for the balance' dUE)';' such taRing of the note opera.tcs merely as a giV!ing of credit. ". ; ; .. '. ..' .