698 this judgmeJit.20 TIl.: MIS. The supreme court 'Of thEt mUted States that the a good bar to recovery, because,the ,facts stated in the1i,\bel: ta:lsed thesllme:pointof law whic!lihadbeen decided:agairuitthe libelant when complainant in the state coui-t, and this conclnded him upon that point of law, with respect to that cause of action. If the libelant in had set forth, in his libel, facts of its legal sufficiency a different question frQm that presented to the state court on demurrer to the declaration;' the'l,'esult would' :llecessarily _ have been' different. No,tI:,,;,111 U. s. 472, 4 Slip. ' Ct. 495; has no to ,th:e,,,point here ,under discussion. The question in! that case was whether a hearing on -a general demurrer to undertlie J()ode of New was a "trial" of the cause, withiq section,? 'pf the act.of March, -3, 1875, providing defendants entitled to remove any suit from a state court to the circuit'colilrt of the United States could do so by filing a for suchrerlioV'a1 or at the term at which said cause conl<t.be 1irst tI,'ied and before the .trial thereof;" and it was held that liJuchahelU'ing was a tri3.1, because it would finally dispose of the case stated in the cOIpplaint on its merits, unless lel:1v;e to amend or plead over ;was granted. But there was nothing in,that case which called upon the cou-rito decide that a judgment upon such a demurrer ,would estop the bringing of a second suit 011 the same cause of action when additional facts /were averred, raising a differe'ntquestion of law. ';rhe case did not present the question of former adjudication, and is not an authority in respect to it. It only involved a construction of the removal statute of 1875, and the mea.ning of the ,Yord "trial." There is a second assignment of errOr made by the plaintiff in errl):(', in that the court be-low held that the pendency of the suit in the state court was not'abar to the suit in the federal court. The assignment of error cannot be sustained, for two reasons: First, because the pendency of the former suit is to be availed ·of as a defense by'pleain abatement; and; second, because, even as a plea ill abatement, the pendency of the same action in the statecourt is not a good plea in nfederal court, though it has concurrent territorial 9urisdictio'n with the state court. Gordonv. Gilfoil, 99 U. S. 168. The judgment of the court below is affirmed, with costs. rt
PAULY J-kIL .BLDG. & MANUF'O .
co. v. HEMPHILL COUNTY. .
(CirCUit Court of If)
Fifth Circuit. May 15, 1893.) No. 135.
1.
_
ApPEAL-MAT'l'ERS: BROUGHT UP FOR REVIEW-EXCEPTIONS BY DEFENDANT IN ERROR.
On a w1-"it of. erl'or sued out by plalntUi to review a judgment on a verdlcUor exceptions takeJ;l,oy defendant to rulings sustaining objections to: 'cerbliIi Of his pleas cannOt' be coIlsidered.
PAULY JAIL BLDG. &: M;\'li'UF.'li; ,CO.V·.HEMl'HILL COUNTY.
699
9.
CONTRACTS-PERFORMANCE-CmWLUSIvENESS OF' DECISION 'OF INSPECTOR.
A contract. with a county b;r plaintiff, a nonresident corporation, to build a jail. provided that the county should appoint a commissi()ner qualified to judge of the w()ri{. whose duty it Should ,be to inspect and report upon the work, and t() notify plaintilf of any work or materials not in with plans. an<l specifications; his allowing the work to be completed without notice to be considered as an acceptance of it by the ,county. Held, that it was no derense to an action for the contract price that the commissioner appointed was not qualified for the duty, and that nothing but positive proof of mala fides on plaintiff's part could overc(lmethe finality of the commissioner's action. The jury in such action were Instructed to find for defendant it they should find that the material and work did not substantially comply with the requirements of the contract and specifications. Held, that this did not give sufficient weight to the provision for inspection. ,
S.
SAME.
In Error to the Circuit Court of the United States for the Northern District of Texas. 'l'his was 'an action brought by the Pauly Jail Building & Manufacturing Company, of St. wuis,Mo., against the county of Hemphill, state of Texas, upon a contract entered into June 22, 1881:1, whereby the plaintiff contracted to bUild for defendant county, at the county seat, the town of Canadian, a jail and cellS, according to cmiain specifications agreed upon, and the defendant county agreed, upon the completion of said jail bUilding, to pay to the plaintiff $]B,WO in 6 per cent. coupon bonds, to be issued by the defendant county. 'fhe plaintitr's petition alleged and set up the contract and specifications at length, and that it had completed said jail building in accordance therewith, but that defendant refused to pay plaintiff anything for the jail, or make or deliver its bonds, as it had contracted to do, to plaintiff's damage. as is alleged, of $15,000. One of the provisions of the contract, as set out in plaintiff's petition, is: "i$aid. party of the second part further agrees to, appoint a commissioner, whose duty it shall be to inspect and report upon the work during itS construction, said commissioner to be a man qualified to judge of the work; and should any work be done, or should any material be furnished, Which, in his opinion, is not in accordance with plans and specifications, it shall be his duty to notify the party of the first part thereof, by letter mailed to its address at its principal office, in St. Louis, Mo., unless said commissioner and the agent or subcontractor of said party of the first part can agree upon the subject in controversy. Should said commissioner allow said work to be completed without notice. it shall be considered the same as an acceptance of the work by the party of the second part. When notice of the time fixed for the completion thereof is. given by the said party of the first part, the said commissioners' court shall convene in special session at a time to be fixed by the said party of the first part, examine the said work, and receive the report of said commissioner, and, if completed according to contract, shall accept the same, andmake payment therefor as hereinbefore agreed." 'l'he defendant, in answer to plaintiff's petition, among other defenses, charged that "plaintiff and its agents, having full authority in the premises, entered into a combination and conspiracy with one Polly, the county judge for said Hemphill county, and at least two of the commissioners for said county, for the purpose of defrauding said county by building a jail, and palming the same off upon said county at at least three times its cost and value, the profits and gains thereon to be divided between tne plaintiff and said county judge and said commissioners;" that "Hemphill county, through her county judge and commissioners, and before the plaintiff had expended anything upon the faith of said pretended contract; protested against said contract, and repudiated the same, and that, if the plaintiff ever built a jail pursuant to or under said contract, the same was built by the plaintiff, at his own risk, -over the protest and in defiance of the wishes of the defendant. the plaintiff relying solely upon a void contract, obtained by debauching and corrupting the commii<"ioners' court for said county, to burden the defendant with an ,i1legal.flebt;" that "the clause in said contract providing that a commissioner
700
DDERALREPORTER,
vol. 62.
should be appointed by the defendant td represent it in the' construction of such jail was 'Inserted by theplalntilf, tn order to overreach the defendant, and to ,estOp it from complaining of worthless work and material, and not from, any honest' and legitimate' purpose, and to enable the plaintlff to take advantage 6; its, own fraud anl,lwrong, and Is against public policy and void." It charged a:lso that, knoWing that the plaintiff was proceeding forcibly to bund the jlUI,and that it wouIa rely upon the clause providingfor the appOintment of a commissioner, the commissioners of defendant county appointed one Robert Moody to act as such comniissioner, as was provided by the contract, With the ej:press agreement With the plaintiff that such appointment should ,not be held as' a recognition of the' contract. The defendant also charged' that the plaintiff did not use bricks of the kind required by the but soft and worthless ones; that it used a class of stone apPilrently, sound and durable, but, which was known by plaintiff and its agents to ,be ,unsound, and wholly unfit for the work; and that it did falsely and fraudulentlY represent to said Moody that said stone was sound and durable. It also claimed that Moody was not an expert in judging of the qua!J.ty or grade of cement or paint or tin to be used, and in each of these respects the plaintiff, to keep him from objecting to the quality used, did falsely and fraudulently represent to the defendant and to MOQdy that the qUality and grade of each ot these articles were the best grade and quality; and that he (said Moody) was $0 induced not to object to the use of the same, but thatthe quality and grade of such were worthless, cheap, and inferior to what had been specified in the contract. It is alleged that plaintiff and Its agents did fraudUlently and secretly use, in the cement work of the floor, grass, weeds aM ot)ler perishable material, instead of broken stone or brick, as reqUired In· the specifications; that plaintiff failed and refused to place galvanIzed iron window and door caps, on the windows and doors. and elbows on the downspouts sufficient to conduct the water away from the building, and willfully, intentionally, and fraudulently failed to comply with the contract in almost every particular. Theplaintltf then filed a supplemental petition, and demurred to the plea of defendant which set Ull the matters of bribery and interest of its commissioners in the contract, because the same were no defense to plajntiff's said action, and to the plea of revocation of contract, because it was not alleged that the same Wl18 done with plaintiff's consent. The plaintiff further excepted to that part of defendant's answer wherein the ignorance, incompe· teney, and unfitness of the commissioner or supervisor appointed by the defendant was set up, as it did not allege or contend that the said commissioner acted· fraudulently or corruptly. The plaintiff' further excepted to so much of tli'efirst amended original answer as pleaded that the provision of the contract for the appointment of a, commissioner or supervisor was inserted in defendant's contract with fraudulent intent for the purpose of deceiving and overreaching the defendant, because that allegation constituted no defense to plaintiff's cause of action, and that the defendant is estopped from pleading Its ignorance of said contract. The plaIntiff further excepted to all of the said original answer which sought to set up, by way of defense, the failure to perform the work according to the contract, because said amended answer nowhere alleged that due notlee of such defects, if any, at the time of their occurrence, was mailed to plaintiff at St. Louis, in accordance with the terms of said contract; and that this defect is not cured or obviated by any allegaof said commissioner. tion as to the ignorance or The case coming on to be heard, the court sustained the plaintiff's first and second exceptions, which were to so lI"lch of said answer as set up bribery of the commissioners and the revocation of the contract, and that the paragraph of the contract which provided'for the appointment of a commissioner was fraudulently Inserted, and that alleged the Walls to be out of plumb, and that plaintiff and its agents wholly failM and refused to place galvanized iron window and door caps upon' the building, to which ruling the defendant excepted;whereupon, the trial being had before a jury, plaintiff introduced in evidence certified copies of the records of the county court of Hemphill county for 221,1 of June, 1888, authorizing the' county judge to sign the contract for building the jail building, and the original contract and specifications; also, the order of the county court appointing Robert Moody 118 com-
PAULY JAIL BLDG. & MANUF'G CO. tI. HEMPHILL COUNTY.
,701
missioner on the part of the county, as provided for by the contract, and the testimony of JOhIl Rausch, the superintendent of the plaintiff company engaged in thecoustruction and erection of this jail building. who testified generally as to the building, saying that it was constructed according to the plans and specifications, and in most particulars it was better, showing the particulars wherein the building differed, If any, from the specifications in the contract, and claimed in several respects that the work done and quality of material used was better than called for. Here the plaintiff rested its case. The defendant then read letters showing that Moody, the commissioner or supervisor, appointed by the commissioners' court· for said county, had complained to the plaintiff, at its home office at St. Louls, and also to the superIntendent in charge, of bricks which were being used at the· time, and protesting against their use. The testimony of said Moody was that such protest was regarded once or tWice, but some of the brick were put into the building; that part of the outside walls were built of brick that he objected to; that they were of different colors, and soft; that they were put In the walls, but it was represented to him that they were taken out; and that he saw some of them taken out, but he did not see all of them taken out; and that the plaintiff's agents used a lot of poor brick, notwithstanding his protest. Moody also testified that he was no judge of the quality of cement; that he had to depend upon the label on the outside of the barrel and what others told him about it; that the stone that was used looked all right and solid to him; that he knew that it came from a condemned building, but that he supposed the building had been condemned on account of the poor workmanship In It; that Watson, who was doing the work (plaintiff's agent), said they were good rock; that he looked at them, and they looked very good; that, in mixing concrete, it would get out among the. weeds, and the man would rake in the grass and weeds with the concrete, and get it mixed up; that he objected, and the man started to rake It out, and Watson said: "Don't take it out; It is just as good as hair or anything." Part of the grass and weeds was taken out, but he had reason to believe it was not all taken out He further testified that, at the time the cement was used, he had no reason to believe that it was inferior and not good; that Mr. Rausch claimed that it was good or better than the contract called for, but that Loulsville cement was used, instead of Rosedale; that Mr. Rausch said it was the same grade of tin that was used that the contract called for, except that it was a little better and one grade heavier. The defendant also introduced testimony tending to prove that the county never accepted the jan; that it was never used but once, and that was with the subcontractor's consent, and upon the provision and understanding that such use of it should in no way be construed into an acceptance of it by the county. It was also shown In evidence that the authorized agent of the Pauly Jail Building & Manufacturing Company, after the completion of the building, made a tender of the keys to defendant's agents, and requested a full investigation of every phase of the jail contract and the work of construction. The defendant also introduced testimony to show that the floors of the building were imperfect; that the roof leaked in several places; and that the walls were not plumb; that some of the stones of the foundation were soft, and cleaved off in places. During the trial, the plaintiff announced to the court that it abandoned Its claim on a quantum meruit, and stood on the contract alone. After the Introduction of much testimony regarding the quality of the material furnished and the character of the work performed, which we do not deem It necessary to review for the purpose of this case, the trial judge charged the jury: "(3) A substantial compliance by plaintiff with its contract, according to the terms of said contract and the specifications attached thereto, Is all that was required of plaintiff in erecting said jail house; and if you find, from the evidence, that the character of the material used In erecting said jail and the work In constructing said jail both came up substantially to the reqUirements of the contract sued on, and that said jail, when finished, was a substantial compllance with said contract and specifications attached thereto, then you will find for plaintiff the contract price of said jail, to wit, $13,000, with interest thereon at 6 per cent. from February 9, 1891. "(4) The converse of the above proposition is true. If you find, under the
>.1
l.
used in:constructingsllld jail:qnd' the work done -In. not substa,D.tlally· comply :'With the l'eql1hlements .of said contract and eJ)ecltl-mtions, then'you will find a verdict .for the defendant. .! : ,; ltasaUeged that saId, jail was, constrUcted with soft.; Inferior fOl':tbe construction of said jaiL house; alSo, thatpla:intiffused ,brick;: :1Il class ofllt0ne th8lt was unsound andpetishable for the. foundation walls of '8.11id'jaU;' also, used a grade of cementinfetiDrto pur.e English ,cement, IlJld uuSUitedito tbe Wi1rk,to lle 'done on; said jail; 'also, that plaintiff, "Wiled, ,in roofing saldjall.a grade of-tiD inferior,to that called for in the COIl,tllact: If the' testimony convinces you that' the matter of brick, above refel'/.'ed to in thisPMagraph, plaintIff fell below the contract in the character ,of'tlte.materlal used,:aindthatsuch.departure (taking tbe'jail as a Whole, and ,ooqsIdering the purposes.for which,'it was to be used) 'made the jllll, When ;cbmpleted,not asubsmntial compliance with :the oont1'act, then you will find for, defendant" on, .the other hand, if such departure 'from the ,contract, if :found 1lrom:tbe evidence ito baveoecurred, was not Illllterialand .,substantial, and, thedall; .Dotwit1nstandlng sUcb .departure, was still a subStantial com"pUance with the contract, then ,you. will find for the in paragraph,. No. B,abolte, unless, under instructions No. 6 Jof this charge, you ' ' findl fUr 'defendant. "(6)· If. IYOU , are satisfied from ,the, ,testimony that plaintiff uSed a stone for :.thefoWlda,tlon walls of said jllli that was unsound and unfit for that purpose",olt U1Jed a: quallty of cement in constructing: said jail that was cheap and Inferior to that called for in the 'contract, or used a grade of tin inferior .and ,(ld;merent totba,t called 1101' m said .contract, and tbat Robert Moody, ,commi8sione1',suffered said materIal to be used in constructing said jail under :the,'mlstaken, ·bellef that It. WlrSUL good quality, and complied with the contract"and',thatsuchbelief on the.part of Moody' wasinduced:by the fraudulent and,false of agen:t8,' rwhowere eIlDBtructing said jail, ,to! the etfect that said material was good, and complied with, the contract, then,ifitbetestlmony that! ·in one or more of the three oases'.r.eferred to in this pRr8!graph, plaintitf fell below tbe contract in the ohal'l1cterof the material used,and that such departure (taking the jail as ,a'whOle,' and. collSidering the pUrposes fol' which it was to :be. used) made thejllil, 'When completed, not a; substantial compliance' with the cohtract, then you, will ,find for 'defendant; ,On' the othel' band, if such departure from the contraet(if found ,from the evidence to have occurred)' was not material and 'substantia:l, .and.tbejail,notwithstanding such' departure, was still a substantial compliance ··witb the contract, then yoU> will find fOl'the plaintiff, as instructed in paragraph No. '3, above, unless, under instruction (5) five of this cbarge, you find for: defendant. "(7) If you findtrom tbe testimony that the commissioner Robert Moody allowed said work of laying the foundation with the stone with which it was laid to be co,mpleted, and the roofing of the jail with the tin that covered it to be done, and the to be laid without objection on his part, and tba.t such actiQh on his part was not Induced by fraud or fraudulent representa1ions of ,the. plaintiff or its agents, 'but: grew· out of:carelessness, ignorance, or iuattentionof said Moody" then the defendant cannot now complain of the, use· of said material, unless there waS a gross departure from the oontract in the use thereof,· sucb as rendered the building; substantially unfit for the,ua9s for which it was. Intended; but if said brick or 'stone or tin or cement,,:ol', thew-ork thereon",when' put into said jail, were, 'Inferior to that called',for by the cO'ntract,but not to an extent that prevented said jail from substantially eomplying withnthe 'contract sued on,then you will find for nlaintlff;thecontract price ol1sltid jail,'towit, $15,000, less: the value thereof by rea$on ,of such defective work or material. ,"(8)lfthere Was no willful departure by plaintiff from the terms of the contract, or omission in essential points, bllt;Jf he performed the contract in all Itsel!lSential and material particnlars,.hewill not be, held to have forrigbt.to pay by reason of unimportant or technical omissions or defectl!l. "(9) The charge that the county judge and' two of the commissioners were interested in ,the contract is not before tbe jury; neither Is the charge that they were bribed." 1
PAULY JAIL BI,DG. & MAN"UF)G CO. V. HEMPHILL COUNTY.
703
Whereupon the plaintiff moved the court to instruct the jury to disregard all.evidence touching the defective material or defective construction, except stIch defects as the eVidence shows may bave been communicated to plaintiff at its principal office in St. Louis, Mo., by the commissioner of the defendant, which the court refused to do, and plaintiff excepted to such refusal, and also to the fourth, fifth, sixth, and seventh paragraphs of the court's charge to the jury. The jury returned a verdict for the defendant, and plaintitr filed a bill of exceptions, with seven assignments of error.
George Clarke and D. C. Bolinger, for plainti:(l: in er.ror. W. O. Davis and J. L. Harris, for defendant in error. Before McCORMICK, Circuit Judge, and LOCKE and TOULMIN, District Judges. LOCKE, District Judge (after stating the facts). The history of this case, as shown by the record, is that one board of county officers, county judge, and commissioners of the defendant, while in office, entered into a contract with the plaintiff for the building of a county jail, for which the county was to issue and deliver to it $13,000, in coupon county bonds. Subsequently, and before the jail was built, a new board of county officers, being elected, considering, apparently, that the county did not need a jail, endeavored, if possible, to defeat the contract, but the record fails to show what action they took, if any, to rescind it, or to notify the plaintiff of their rescission of it, if any was made. The first contention of defendant county, and which has been ably urged, is that the plaintiff had no right in law or justice to insist upon building the jail, and thus increase any expense or damage that might be suffered by the county. While such contention would appear to be entitled to consideration, the record of the case is such that it is impossible to determine the facts connected with the rescinding of the contract. Such abrogation was pleaded and excepted to, and the exception sllstained; and, although the ruling appears to have been excepted to, yet, the exception being taken by the defendant, in whose favor judgment was given, we have before us no bill of exceptions or assignment of errors in that behalf. Admitting that the position of defendant in that particular. point is correct, and that notice of the rescission of the contract was duly given, and plaintiff had its remedy in an action for damages for a breach of the contract, such plea could not fully defeat the plaintiff's action, but might limit the damages. Tufts v. Lawrence, 77 Tex. 526, 14 S. W. 165. The same may be said in regard to the ruling of the trial court upon the plea of defendant found in the fourth paragraph of its answer, wherein bribery and a corrupt and illegal conspiracy between the officers of said county and agents of the plaintiff company are alleged. The judgment being in favor of defendant, by whom such exceptions were taken, we do not consider that those questions are so before us that we are permitted to pass upon them. In the case as presented for our judgment, the plaintiff was a nonresident corporation, acting {;ntirely through its agents and subcontractors, and the provision in the eontract which placed it within the power of the defendant county to select its own commis-
704
I'EDll1RAL REPORTER.,: vol.
62.
sioner to act as inspector during the building, if honestly carried out in with, its terms,.would have of greatest asslstancea,pd protectIon to both of the contractmg parties, R:q.<l would appear to be a wise and prudent precaution in the completion ofsuoh a work, the actual superv;ision of which must necessarily be delegated to of each party, and could not be scrutinized by the principals of either. By it every opportunity in reason was given for the defendant to secure good materials and work, and the plaintiff would at the same time be protected from the faults and negUge;nce of· its, own servants, by being immediately informed of, and enabled to correct them, and also from any complaints that might be subsequently made, too late to determine tl1eir truth O;J: falsity. The of such an arbiter or supervisot of any complll-int made at the time and in the manner provided by the contract, is prima facie evidence of compliance with the conti-act, and should be conclusive, except upon clear and distinct proof of fraud. Railroad Co.. v. March, 114 U. S. 549, 5 Sup. Ct. 1035; Kihlberg v. U. S., 97 U. So 398; Sweeney v. p. S., 109 V.lS.618, 3 Sup. Ct. 3f4;< Railroad Co. v. Price, 138 U. S.185, 11Sup. Ct. 290; Ogden v. U. S., .60 Fed. 725;1 Railway Co. v. U. S. 285, 14 Sup. Ct. 343. In determining such question of fraud, the burden of proof is upon ,him alleging it. Was such evidence of fraud given in this case as would justify the submission of that question to the jury, or was it sufficient to justify the jury in finding fraUd? Fraud is something more than the expression of an. opinion which may prove pot to be true, with no intent or desire to wrong or mislead. Nothing but an actual intention to deceive-nothing but an justify a finding impeaching the plaintjjf's compliance with the terms of the contract. An intentional perversion of the truth, for the purpose of .obtaining some advantage another, would, we consider, be necessary to remove the presumption of the fairness of action in such a case as this. The contract provided that the commissioner should be a man qualified to judge of the work, and was to be selected by the defendant; and alleging in the answer that no such man was . selected, but one not qualified for the duty devolving upon him, should have no weight as a matter of defense, and nothing but positive proof of mala fides on the part of the plaintiff or its representatives should be permitted to overcome the finality of the commissioner's action. Unquestionably, in the making of the contract, it. was the intention of both the contracting parties that his action should, in the absence of fraud, be final. With this view of the case, all questions regarding the character and nature of the work, except the brick complained of by him and the fraud of the plaintiff,. are eliminated from the case. But these should be carefully considered at each step of the proceedings. In the fourth paragraph of the learned judge's charge, we find the instruction to the jury that, if they found the material and work did not substantially comply with the requirements of the contract and I
9 C. C. A. 251.
VINCENT tI.l<piCOLN COUN1.'¥.
they should find for the defendant. In this, with no language of reference to. or connection with any other portions of the charge, we do not consider that sufficient weight was given. to that important provision of the contract providing for an inspection, but that the beneficial effects of alr'such supervision were eliminated from the case. In this we consider an error was committed, to the injury of the plaintiff. Nor do we consider the testimony would have justified the jury in finding such evidence of mala fides of the plaintiff in the representations regarding the brick, stone, cement, and tin as would have entirely defeated its claim, under the sixth article of the charge, which was excepted to. The judgment of the court below is reversed, and the cause remanded, with instructions to grant a new trial; and it is. so ordered. VINCENT v. LINCOLN COUNTY.
(Circuit Court, D. Nevada. No. 577. 1.
June 18, 1894.)
COUNTIES-PRESENTATION AND A.LLOWANCE OF OLAurs-J"UDGMENTfON BONDS PAYABLE FROM SPECIAL FuND.
Where the statute authorizIng the issuance of bonds provides for their payment by levying a special tax and creatIng a &pecial fund, the allowance by the county bonrd and audit of a claim on a judgment on such bonds, as payable out of the general fund, Is not an allowance in the manner and to the extent to which the holder is entitled, and he is not precluded from maintaining an action on the judgment because another remedy is prescribed by statute to enforce payment of claims allowed and audited.
J.
Gen. St. Nev. §§ 1950,1964-1966, requiring presentatIon of claIms and accounts to the county commissioners llIIld county auditor for allowance and approval, apply only to unliqUidated claims and accounts, not to bonds and coupons, nor to a judgment upon bonds and coupons; and such presentation is not necessary before an action on such a judgment.
This was an action by O. D. Vincent against Lincoln county on a ,judgment against the county. The case was submitted to the court on an agreed statement of facts, and a jury was waived. Freeman & Bates, for plaintiff. Trenmor Ooffin and Geo. S. Sawyer, for defendant. HAWLEY, District Judge (orally). This is an action brought upon a judgment obtained in this court by the plaintiff against the defendant on the 8th of November, 1888. The judgment and the indebtedness evidenced thereby were founded and based upon certain bonds and coupons issued under and pursuant to an act of the legislature of this state entitled "An act to consolidate and fund the indebtedness of Lincoln county," approved February 17, 1873 (St Nev. 1873, p. 54). The constitutionality of this act was sustained by the supreme court of :Nevada in Bank v. Quillen, 11 Nev. 109. The jurisdiction of this court was upheld in Vincent v. Lincoln Oounty, 30 Fed. 749; and the judgment rendered by this court was sustained by the supreme court of the United States in Lincoln 00. v.62F.no.8-45