its discreiion would remit him to his right of appeal.. Ex Parte Royall, 117. U. S. 241, 6 Sup. Ct. Rep. 734. The petition for discharge is denied, and the petitioner remanded to the custody of the state authorities in execution of the sentence imposed upon him.
MANUF'G Co. t1. CITY OF ST. LoUIS.
(Cflre'wlt Court. E. D. Mi880UrI, E. D. November 6, 1890.)
Plaintifl oontracted with defendant to build a bridge "on the present piers, "and bound himself to complete the work within ten months and o'ne week after notice to begin. Defendant failed to prepare the piers to receive the bridge until eleven months after it had given plaintiff notice to begin. Hew., that such failure released plaintifl, from the obligation to complete the bridge wlthinthe:specified time.
A provision in a contract with a city that the street commissioner shall decide all questions that may arise relative to the execution of the oontract, and that his decision shall be final, does not him jurisdiction to determine the legal ques. tion whether the contractor has lDourred a penalty provided for in the oontraot.
At Law. In this Case it appears from thereCbrd that on November 18,1887, plaintiff contracted with the city of St. Louis "to furnish andel'ect the iron and steel work of the superstructure ofthe main spans of the Grand Avenue bridge, on the present stone piers, and to connect the same with the iron-work of the anchorage," in conformity with certain plans and specifications, and for the sum of$144,000. The contract contained a provision that the work embraced therein should be begun by the plaintiff "within one week after written notice so to do had been given to the plaintiff by the street and that the work should be completed within ten months thereafter. It was also provided by the same dause of the contract that, if the plaintiff failed to complete the work within the time limited, the sum of $20 per day for the first 30 days' delay, and $30 per day for the succeeding 30 days' delay, and $40 per day for the residue of the time, until the work was completed, should be deducted from the contract price. 'Noticeto begin the work was given by the street commissioner on Decembtl 12, 1887, but the stone piers on which the bridge superstructure was to be erected were not completed by the city, ready to receive said superstructure, until November 12, 1888,-more than one week and ten months after the notice to begin had been given. The work embraced by the contract was completed by the plaintiff on June 17,1889, or, as admitted by the answer, on May 80, 1889. The contract also contained the following provision: "(8) To prevent all disputes and litigation, it is further agreed by the parties hereto that the street commis!!ioner shall in all cases determine the amount or qUa'ntity ot the several kinds of work which are to be paid for un-
XING IRON BRIDGE & MANUF'G CO. tI.· CITY OF ST. LOUIS.
der this contract: and he shall decide all questions which may ariserelatl)l£, to the execution of this contract on the part of the contractor, and his esti-. mates and decisions shall be final and conclusive."
After the completion of the work on June 17, 1889, the street commissioner made out a final estimate, showing the balance due to the plaintiff to be $21,627.73; but from this sum he deducted $6,820, claiming that the city was entitled to that deduction, under the provision of the contract above mentioned, .on account of delay in completing the work. Barcroft & Bowen and David Murphy, for plaintiff. Leverett Bell, for defendant. THAYER, J., (after stating the facts a8 above.) First. The first question to be determined is whether the 'provision of the contract authorizing deductions from the contract price in case the work was not completed within one week and ten months after notice to begin the work had been given, was an operative provision when the street :JOmmissioner made his final estimate, or had become eliminated from the contract by the default of the city. There can be no doubt uhatthe duty rested on the city to construct and prepare the bridge piers for the erection thereon of the superstructure. The contract bound the plaintiff to erect the bridge superstructure" on the present stone piers, " in accord.. ance with certain drawings; but did not, by any provision, obligate the pJaintiffto do any work on the 'piers. It is a necessary inference from all the terms of the agreement that. the city undertook to provide such stone piers for the erection of the superstructure as the drawings disclosed. The city admits by its answer that the· piers were not fully completed for the erection of the superstructure until November 12, 1888; hence, by the defendant's neglect the plaintiff was prevented from completing the work within one week and ten months from the time the notice to begin was given. The result is that the provision awarding damages in a given' sum should there be delay in completing the contract, was as effectually eliminated from the contract.,' as if the parties had canceled it by express agreement; and it is wholly. immaterial whether we say the provision in question was waived, or that the defendant is estopped from insisting on the provision. In either event, the result is the same. The city, by its own default, having rendered performance impossible within the time limited, has lost its right to claim the deductions specified in the contract. The law to this effect is well settled and fundamental. Stewart v. Keteltas, 36 N. Y. 388; Weeks v. McCarty, 89 N. Y. 566; Starr v. Mining Co., 13 Pac. Rep. 195; Mansfield v. Railroad Co., 6 N. E. Rep. 386; Navigation Co. v. Wilcox, 7 Jones, (N. C.) 481; Dttmke v. Puhlman, (Wis.) 21 N. W. Rep. 820; Jones v. Railroad Co., 14 W. Va. 523. For an unreasonable delay in erecting the superstruc"ture after the piers were fully completed, whereby the city sustained injury, it might perhaps be entitled to recoup damages on a counter-claim, but it has not framed its answer on that theory, and no decision on that point is necessary. It has planted itself squarely on the contract, and insists upon v .43Jf.no:11-49
FEDERAl,REPORTER " v01.4&, "
boridiWhioh,for reasons abovestatedf, ·it·
Second. The next question is theeigbth clarise' of the cbntrllct' gavectbe' street commisSioner such broa'dpowersas an arbitrator, that his decision on making:tl:i:edinal estimate that the plaintiff was in law liable fotliqriidated daniages, is conclusive betweehthe parties, although Tbis question must be answered in the ,negative. Tlie made the decision of the. street commissioner conclusive as' to all questions concerning the amount of work done,' provided he acted, in faith, and circumspection, With'the Bame reservations that he acted in good faith-and, with reasonable care, it also made his decisions final as to all questions whether the work was donE! in·' accordimbe with\the IlraWtings'and specifications,and was futly up tothe'standard of excellence :mentioned therein. These, w.ere all questions' offaet, depending fortheircot:rect: ,solution on professional knowledge'l1ndskill;Jattd the partieslil1ight reasGuably and :lawfully submit themJtoithe,determination' otianarbitrator, and agree to be, bound by his: Wood,!v; Railway 00;, 39 Fed. Rep. 52" and citations. But the question whi'Oh the .streeti ·commissioner undertook to ,decide' was 'Purely a q1;lestion oflaw,as th the effect which the failure of the city: to' have thelbtidge'piers completed within one week and ten months after· the notice was Berv:ed"hl1d upcip. its right to demand liquidated I properly construed, did not commit that questililn to the qeterminatiao of the:street commissioner; itw&s wholly outside of hi" juriSdiction.,; .. :,. ; As :tbe.generaldenia.1contained>in :the answer was waived by counsel in OPfilnOOUrt;:and the case:wasilubmittedunder an agreement that the' court" OJi':tbe hearing of the demurrer to the answer, might enter such judgmrent'as,i:t:deemedproper, in view' qf the allegations of the petition and"tbe admissions contained in :thennswer, the demurrer to the answer is sustained, and judgment entered on the first count of the petition for $21,627,.118, with interest"at6perJcent. per annum from June 17"1889, to this date; On the ,second, conntj 'in which the plaintiff sues. as on a quantum meruit 'for thesa1lle sum mentioned in the first count, the findiog and judgment wilL be for the city.
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(OC:.;.i:uit Oourt;, :E. D.: Missouri,' E. D. ,. ;
NATtONAL BANXs---EXCEBBIVlI LOANs---LuBILITY, OF DIRECTORS..
2. SAME-RimEDY AT LAw. " , An action by a receiver of a bank whose charter has been forfeited under above statute against a director is properly brought ,at, law;' there bei"g for invoking the aid of a court of chancery either because of the nature of the issues involved, or to avoid a multiplicity of actions.
The rig1;lt to nlaintain an actl,on llnder Rev., ,St. U. 8. § 5239, to recover ,of a bank director the sustained by his bank in consequence of excessive loans made by him while servmg in the capacity 6f director, is not affected by the fact that the cOlnptroller has"or has not forfeit:Qre,oftb.e bank's c;barter.
In such action, piainti1f may state the aggregate amount of the excessive loans made toeach party, and the damage resUlting therefrom in each case, accompanying each allegation with' an exhibit showing the dates aud amounte of 'the fieveral loans go to m$ke up the aggregate sum stated in the petitiQn, and is not pelled to declare in a separate count for each loan m a d e . ' ,, '
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At Law. :: This'was Ii suit by a receiver of an insolvent natioI1al bank; 'dul:t' appointed under the provisions of section 5234 of the Revised Stattites of the United States, against the executrix of a deceased president and directoriof the bank, to recOVerdll.111ages alleged to have been sustained by the bank in consequence of loans knowingly made by the deceased,in his capitcity as president and director, to four different customers of'the bank, to each in excess of one-tenth of the amount of- its capital stock actuauy paid in. The action was founded on sections 5200 and 5239 of the Statutes of the United States. The dec1aration,or " petition," it is termed under the Missouri Code, recited the organization of the insolvent bank, the fact that defendttot's testator was its president and one of its directors from its organization until it became insohrent, that plaintiff was duly appointed receiver of its affairs, etc., and then averreq., in substance, that the testator in his life-time, and while acting in the capacity of president and director, "participated in and knowingly assented to the making oHoans" of the.funds of said bank to Nathah Goldsmith & Co., to the amount of $99,591, in excess of one-tenth of the capital stock of the bank j $54,591 whereof was thereby wholly lost, and that the bank was damaged to that extent. Similar allegations, ,differing only in amounts and dates, were made in separate graphs with respect to excessive loans to the John Meyer Lumber Company, the St. Louis Planing Mill Company, and the Elliottville MiHs. The petition showed the total amount of the excessive loans made to each. of the four concerris above mentioried, and the amount of the loss Attached to the petition were thereby and in each instance four exhibits" showing the dealings between the bank and said companiesfor, the period of several years, from which it appeared that the excessive'lbil.ns in question were not made in one sum to either of-the sev'" eral debtors, but that each of them borrowed from time to time, ahd.in different'm:noUnts, money in excess of the sum 'authori:l:ed by law to be