doubt on this point. There a national bank, without power to do so under the national banking laws, purchased stock in a savings bank of the state of California. It was held that, in the absence of power to own the stock, the national bank did not become a stockholder, and was not liable to pay the assessment upon the stock for the benefit of creditors, although in that case it had received, and had not returned, dividends issued to it as a stockholder. The other benefits said to have been conferred upon the city were the construction of the railroad and the building of the depot. As the railroad and the depot were constructed on the land of the railroad company, they did not go into the possession of the city as its property. Had the railroad company, without any subscription by the city, built its railroad through the city, and erected its station there, it certainly could not be claimed that this would have given the railroad company a right of action against the city for the value of the benefits conferred on the city by such construction, however great those benefits might have been in adding to the prosperity of the city and its inhabitants. In the absence of an express agreement to pay for such a benefit, no tacit agreement to do so can be inferred. Where the conferring of the benefits was induced by an express agreement which is void, the law will not supply an obligation to pay on the ground of unjust enrichment as a quasi contract, unless, in the absence of the express agreement, a real, but tacit, contract could have been inferred from the circumstances. The benefit indirectly conferred on one man's property by the improvement of the land of another is not an unjust enrichment of the other. Hence, ex æquo et bono, no obligation in law to pay for it arises. The case in hand is not distinguishable in principle from that of Railroad Co. v. Bensley, 6 U. S. App. 115, 2 C. C. A. 480, 51 Fed. 738, 19 L. R. A. 796, decided by this court, in which Mr. Justice Brown delivered the opinion. In that case the owners of lots in Chicago in close proximity to the lot on which it was proposed to construct the Chicago Board of Trade Building entered into a written contract with the owner of the lot by which they agreed that, if he would sell the lot to the board of trade at a low price, so as to induce the board of trade to buy it, and if the board of trade should construct its building thereon within a certain time, they would pay the owner of the lot, each of them, a certain sum of money. The owner of the lot accordingly sold it to the board of trade at the price named in the agreement, but the building was not constructed within the time fixed by the agreement. Suit was brought by, the owner to recover from the contractors the amounts stipulated to be paid in the contract after the building had been constructed. The court held that time was of the essence of the contract, and was made a condition precedent to the obligation to pay, and that, therefore, no recovery could be had under the contract. The plaintiff then sought to recover on a quantum valebat, and it was held that the benefit conferred was not one which created an obligation on the part of the lot owners to pay, even though it appeared that, owing to the erection of the Board of Trade Building, they had been enabled to sell their land at a largely increased price. The court said:

"Had the defendant received a benefit from the performance of this contract to which he would not have been entitled had the contract not been made, the result might have been different; but, as a matter of fact, it received no benefit from the erection of this building which did not accrue to other owners of neighboring property who did not sign the contract or subscribe in aid of the purchase of the lot, and as to such persons it would not be claimed that a liability arises. Its acquiescence in the completion of the building is immaterial, since it had no right to interfere. It is, then, only upon the basis of the special contract to pay that an action will lie, and this contract not having been performed by the plaintiff, there can be no recovery."

Mr. Justice Brown mentioned, as a most satisfactory case upon this point, Railway Co. v. Thompson, 24 Kan. 170, and said:

"This was an action upon certain bonds issued by the city of Parsons in aid of the construction of the plaintiff's road, and subject to a condition that the plaintiff should 'have its road constructed and in operation on or before the first day of July, 1878.' It was held that time was of the essence of this contract, and that the failure of the plaintiff to complete the road by the day named was fatal to a recovery, notwithstanding the road was completed shortly after that, and the city received the benefit of it. In delivering the opinion of the court, Mr. Justice Brewer, now of the supreme court of the United States, observed: 'Nor is this a case of part performance by one party and the acceptance by the other of the proceeds of such performance. The work done by the company was upon its own grounds. It owns the road absolutely and entirely. It has parted with nothing which the city has received. The city has accepted and appropriated none of its labor and none of its materials. It has received the benefit of the work in no other sense than every individual in the community, and in no other way than of one person receiving benefit from his neighbor's improvement of his own property."

While these were cases in which the plaintiff failed to recover on the express contract, not because it was ultra vires and void, but because the plaintiff failed to comply with a condition precedent in such contract, the principle upon which they were placed is entirely applicable to the case at bar. This is made apparent by the language of Mr. Justice Jackson in delivering the opinion in Hedges v. Dixon Co., 150 U. S. 182-186, 14 Sup. Ct. 71, 37 L. Ed. 1044. There a county had issued bonds in aid of a railroad in excess of its authority, and the holders of the bonds filed a bill in which they asked from the court the relief of cutting down the obligation of the bonds proportionately so as to bring it within the lawful amount. The supreme court held that the relief could not be granted, and, referring to the cases of Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153, and Read v. City of Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414, in which it had been permitted to bondholders of bonds issued without authority to recover from the municipal corporation issuing the bonds the amount of money received by it and expended by it for lawful purposes as money had and received to its use, the court said:

"The circumstances and conditions which gave the holders of the bonds an equitable right in those cases to recover from the municipality the money which the bonds represented do not exist in the case under consideration, where the county received no part of the proceeds of the bonds, and no direct money benefit, but merely derived an incidental advantage arising from the construction of the railroad, upon which advantage it would be impossible for the court to place a pecuniary estimate, or to say that it would be equal to such portion of the bonds in question as the county could lawfully have issued."

For these reasons we think that there is no ground upon which to base a recovery for money had and received to the use of Johnson City.

The cases relied upon by the plaintiff are Read v. City of Plattsmouth, 107 U. S. 568, 2 Sup. Ct. 208, 27 L. Ed. 414; Chapman v. Douglass Co., 107 U. S. 348, 2 Sup. Ct. 62, 27 L. Ed. 378; Parkersburg v. Brown, 106 U. S. 487, 1 Sup. Ct. 442, 27 L. Ed. 238; Louisiana v. Wood, 102 U. S. 294, 26 L. Ed. 153; Hitchcock v. Galveston, 96 U. S. 341, 24 L. Ed. 659. It is contended that they sustain the view that money paid for the benefit of the city on the faith of the issue of invalid bonds may be recovered in an action for money had and received. It will be found that, in every case cited but one, the city or county or municipal corporation which issued the bonds received the money or labor or material furnished, and that it was expended in improving the property of the city or other corporation in a manner in which the city had power to improve its own property. In Hitchcock v. Galveston, supra, the benefit conferred upon the city was the building of sidewalks, which the city had the right to build and pay for, but which, it was found, it had no right to pay by issuing bonds. In Louisiana v. Wood the money received for the bonds was used partly by the city in payment and redemption of matured bonds and coupons and warrants of the city, lawfully issued, and part of it was deposited in the city treasury. In Parkersburg v. Brown, which is the exception, the money which was received for the bonds was used to purchase land and to erect a manufacturing establishment, the operation of which it was supposed would benefit the city. The bonds were declared void for want of power in the city to aid private manufacturing establishments. The relief granted by the court was not to hold the city as for money had and received, but to follow the property into which the money had been put, and to sell the property, and distribute the net proceeds thereof to those with whose money the property had been purchased and improved. In Chapman v. Douglass Co., supra, a county in Nebraska bought land upon which to erect a poor house and farm, and in payment therefor issued notes for four equal annual installments of the purchase price, and gave a mortgage to secure the payment of the notes. It was decided by the supreme court of the state that the county could not bind itself to pay the purchase money by notes, or to secure it by mortgage upon the property, but its power was limited to a payment in cash, and the levy of an annual tax to create a fund wherewith to pay the residue. It was held that, the contract being unauthorized only so far as it related to the time and mode of paying the purchase money, and the title to the land having passed by the conveyance, the county held the title as trustee for the benefit of the vendor, and that, unless the sum due on the purchase money was paid within a reasonable time, the county might be required to execute a deed releasing to the vendor all the title. acquired under his deed. In Read v. City of Plattsmouth, the money paid for the bonds was used by the city of Plattsmouth in the construction of a high school building. The power of the city to issue bonds to build a high school was questioned, and by a subsequent

act the bonds issued were validated by the legislature. At the time the bonds were issued it could not lawfully issue them in the amount in which they were issued. It was held that the city, having taken the money and put it into a school house, which it owned, was bound by the force of the transaction to repay to the purchaser of its void bonds the consideration received and used by it, or its lawful equivalent, and that, therefore, the enabling act validating the bonds only recognized an existing moral and legal obligation, and was valid. It thus appears that in each of the cases, except Parkersburg v. Brown, the benefit received by the municipal corporation was money paid to it or property delivered into its actual possession under such circumstances that, had no express contract been attempted, a tacit contract might have been inferred. In Parkersburg v. Brown the money paid was followed, as in rem, into the thing bought with it.

It follows that the judgment of the court was correct, and it must be affirmed, with costs.

JAMES P. WITHEROW CO. v. DE BARDELEBEN COAL & IRON CO. (Circuit Court of Appeals, Fifth Circuit. February 6, 1900.)

1. CONTRACTS-CONSTRUCTION.

No. 824.

Plaintiff contracted to build two blast furnaces for defendant, and to furnish five boilers of a designated pattern, which he guarantied sufficient for the entire plant. The five boilers furnished being insufficient, plaintiff furnished three more; and, it then appearing that still more would be required, a supplemental contract was entered into, by which he agreed to furnish two additional batteries, of two boilers each, at his own cost, if both were required, but the contract providing that if one of such batteries should prove sufficient, with those previously erected, defendant should pay $8,000 for the last battery, or it might elect not to retain it, in lieu of such payment. Held, that plaintiff could in no event recover more than $8,000 upon such supplemental agreement, even if able to show that nelther of the additional batteries furnished thereunder were required to fulfill his former contract; the necessity for one, at least, of such batteries being conceded in the making of the second contract.

2. APPEAL-REVIEW-RULINGS ON MOTION FOR NEW TRIAL.

Rev. St. § 914, requiring circuit and district courts of the United States to conform, as near as may be, in civil actions at law, to the practice, pleadings, and form of procedure existing in the state courts, has no application to procedure on appeal or writs of error; and the settled rule of the federal courts that a ruling on a motion for a new trial is discretionary, and not reviewable on a writ of error, is not affected by a state statute providing for appeals from such rulings.

In Error to the Circuit Court of the United States for the Southern Division of the Northern District of Alabama.

John F. Martin, for plaintiff in error.

Walker Percy and W. I. Grubb, for defendant in error.

Before PARDEE, MCCORMICK, AND SHELBY, Circuit Judges.

SHELBY, Circuit Judge. On March 31, 1886. James P. Witherow made an agreement with the De Bardeleben Coal & Iron Company to

erect for it two blast furnaces. The details of the contract and specifications are not material. It is, however, important to note that Witherow agreed to furnish "five water-tube boilers, Heine patent, guarantied sufficient for entire plant." After one of the furnaces was in operation, some doubt was expressed by the De Bardeleben Coal & Iron Company as to whether the five water-tube boilers would be sufficient to run the entire plant when finished, and thereupon Witherow furnished one extra boiler of the Heine patent; and later, at the request of the De Bardeleben Coal & Iron Company, Witherow delivered to it two other extra-large boilers, Heine patent, in addition to the six boilers already furnished. After Witherow had furnished the eight boilers as stated, and while he was erecting the last two of them, it still appearing that the boiler power was not sufficient, the following contract was executed by Witherow:

"Bessemer, Ala., Nov. 2d, 1888. "Whereas, the boiler power furnished by James P. Witherow to the De Bardeleben Coal and Iron Company has not been found sufficient for the entire plant described in his contract with them, dated 31st March, A. D. 1886, as guarantied therein; and whereas, James P. Witherow is now erecting an additional battery at said furnace plant, of the same pattern, but of size L, and of somewhat different construction: Now, I, the said James P. Witherow, agree to furnish two other additional batteries, similar in size and construction to the additional battery above referred to as now being erected at such furnace plant. It being understood that if both of such two additional batteries, with the rest of the boiler power furnished, are found necessary to supply sufficient steam for the entire plant described in such contract, with one battery left always idle for necessary cleaning and repairs, then I am to pay the entire cost of such additional batteries. If, however, one of the additional batteries herein stipulated for be found sufficient for the purposes above described, then the De Bardeleben Coal and Iron Company is to pay me $8,000 for the second additional batteries. The two additional batteries herein provided to be completed and in position within sixty days from this date, provided the foundations for the same are ready to receive them. In case of disagreement between myself and the said De Bardeleben Coal and Iron Company as to whether the said additional battery is necessary or not, then the matter to be referred to some third party, to be mutually selected, and his decision to be final. If the second of the additional batteries above referred to prove satisfactory to the De Bardeleben Coal and Iron Company, they have the right to cancel this agreement, as to the third additional battery, without cost to them, if they so elect. "[Signed] James P. Witherow."

Each battery named in the contract consisted of two boilers. Witherow delivered the four additional boilers in conformity with this contract, making, in all, twelve boilers that he furnished. This suit is brought to collect pay for the last four boilers. The plaintiff company, which has become the successor of James P. Witherow, and the owner of the claim, contends that it is not necessary to use the four boilers last delivered in order to successfully operate the plant. The plaintiff therefore sues for $16,000, the value of the four boilers. The defendant in error contends that all the boilers furnished were necessary to operate the plant. These contentions make the issue of fact in the case, on which much evidence was offered by each party. Whether or not these four boilers last furnished were necessary to supply sufficient steam to operate the entire plant to its reasonable capacity, leaving two idle for use while cleaning and repairing, was the one question of fact for the jury. The plaintiff in