lowing instrument to the plaintiff.

An exact meeting of the minds of the respect to the lard, he delivered the folparties with reference to all its terms and incidents is necessary to constitute a contract of sale.

Appeal from an order on the trial of the cause dismissing the complaint and directing that the exceptions be heard at first instance at general term.

Action to recover damages for the breach of an alleged contract for the purchase of 700 tierces of lard by the defendant's failing to accept and pay for the same.

The complaint was dismissed at the close of plaintiff's evidence on the following grounds.

That upon the proof there was no evidence of any contract such as alleged in the complaint for the purchase of the lard, or of any contract that was valid under the statute of frauds.

"St. Louis, Mo., February 17, 1872. "I have this day bought of Messrs. A. & C. for account of Messrs. Fowler Bros. of New York, 700 tierces of Kizer & Smith prime steam lard, delivered on cars at Keokuk, Iowa, at the option of the buyers during all of March, 1872.

"Quality to be standard as per rules. of the St. Louis Union Merchant's Exchange, and in good new wooden bound

tierces. Tares actual.

"Terms cash on delivery. At the rate of 9 cents per pound.

Across the face of this was written

The following facts appeared on the the words "Accepted. trial:

A. & C.”

This instrument or a duplicate of it was sent forward to Fowler Bros. for their acceptance, but they refused to

The defendants, Fowler Bros., applied to one M., a broker, in New York city to purchase lard for them. Al-accept it. most immediately thereafter defendants received the following instrument from him:

"Bought for account of Fowler Bros., in St. Louis, (through M. P. Drysell,) (700) seven hundred tierces prime steam lard, brand Ruddick Kizer & Co., 9 cents per pound.

"Deliverable buyers option.
"March 31st, 1872.
"Buyers in St. Louis.

"G. M. M.,
"Broker."
About the same time M., the broker,
in New York, telegraphed to D. in St.
Louis, who was connected with him in

The lard was in the warehouse of Kiser & Smith, by whom it was manufactured, at Keokuk, Iowa, and remained there all through the month of March, ready, as the evidence tended to show, to be delivered to defendants by plaintiff in compliance with the terms of the instrument made by D., and accepted by them.

Defendants never recognized any obligations as resting upon them by force of that agreement.

Afterwards D. procured the lard to be delivered to the R. R. Co. at Keokuk, Iowa, which gave bills of lading therefor, and the bills of lading, with a sight draft, were forwarded to defendants for When the broker in St. Louis re-acceptance. Defendants refused to acceived notice by telegraph of the trans- cept the draft. The lard was retained. trans-cept action of M. and the defendants with in the warehouse at Keokuk,

business.

The instruments executed by the respective brokers are different in material respects. The one delivered to defendants represented a purchase in St. Louis of 700 tierces of prime steam lard-brand Ruddick Kiser & Co.. Terms of payment by sight draft accompanying bill of lading, this sight draft would of course be payable in New York.

The instrument delivered to the plaintiffs represented a purchase for account of defendants of 700 tierces of Kiser & Smith, prime steam lard, delivered in the cars at Keokuk, Iowa, quality to be standard as per rule of

TOWN BONDS.

BONA FIDE HOLDER. ESTOPPEL.

U. S. SUPREME COURT. George O. Marcy, plff. in error v. The Township of Oswego, in the county. of Labette, and State of Kansas, deft. in error.

Decided May 1, 1876.

Where legislative authority has been given to a municipality to subscribe for the stock of a railroad company, and to issue municipal bonds in payment of the subscription, on the hap pening of some precedent contingency of fact, and where it may be gathered from the legislative enactment that the officers or persons designated to execute the bonds were invested with power to decide whether the contingency had happened, or whether the fact existed which was a necessary precedent to any subscription or issue of the bonds, their decision is final in a suit by the bona fide holder of the bonds against the municipality, and a recital in the bonds that the requirements of the legislative act have been complied with is conclu

sive.

In error to the circuit court of the

St. Louis Merchant's Exchange. United States for the district of Kan

There was a difference in the instrument as to the place of delivery, the quality as expressed in the instrument and the terms of the payment, and it cannot with truth be said that in re spect to these particulars, that there was ever any agreement or meeting of the minds of the parties.

sas.

At the trial in the circuit court the

plaintiff proved by competent evidence that the bonds, coupons of which were declared upon, were part of a series of bonds for one hundred thousand dollars, voted and issued by the township, and that they were so voted and issued in strict compliance with an act of the legislature of the state, approved February 25, 1870, unless they were

We think that the court below was right in holding that there was no con tract that could be enforced, and that the defendants were entitled to judg-voted and issued in excess of the amount

ment with costs.

Judgment affirmed.

authorized by the act. It became, therefore, a question whether, in this suit,

Opinion by Davis P.J.; Brady, and brought by a bona fide holder for value Daniels J. J. concurring.

to recover the amount of some of the coupons, it could be shown, as a defense

to a recovery, that at the time of voting and issuing the series of bonds, the value of the taxable property of the township was not, in amount, sufficient to authorize the voting and issuing of the whole series, amounting to one hundred thousand dollars.

stock proposed to be taken, it should be the duty of the board to cause an election to be held in the township to determine whether such subscription should be made: provided that the amount of bonds voted by any township should not be above such a sum as would require a levy of more than one per cent. per annum on the taxable property of such township to pay the yearly interest.

February 25, 1870. (Laws of Kansas, 1870, p. 189.) The first section enacted that whenever fifty of the qualified voters, being freeholders, of any municipal township in any county should petition the board of county commissioners of such county to submit to the The bonds to which the coupons were qualified voters of the township a propattached contained the following re- osition to take stock in the name of cital: "This bond is executed and is- such township in any railroad proposed sued by virtue of and in accordance to be constructed into or through the with an act of the legislature of the township, designating in the petition. said State of Kansas, entitled 'An act (among other things) the amount of to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same, approved February 25th, 1870,' and in pursuance of and in accordance with the vote of three-fifths of the legal vo ters of said township of Oswego, at special election duly held on the 17th day of May, A. D. 1870." Each bond also declared that the Board of County Commissioners of the county of Labette (of which county the township of Oswego is a part) had caused it to be issued in the name and in behalf of said township, and to be signed by the chairman of the said board of county commissioners and attested by the county clerk of the said county, under its seal. Accordingly each bond was The fifth section enacted that if thus signed, attested and sealed. The three fifths of the electors, voting at bonds were registered in the office of the State Auditor, and certified by him in accordance with the provisions of an act of the legislature. His certificate on the back of each bond declared that it had been regularly and legally issued; that the signatures thereto were genuine, and that it had been duly registered in accordance with the act of the legislature.

The act under which the bonds pur. port to have been issued, was passed

The second section directed the board

of county commissioners to make an order for holding the election contemplated in the preceding section, and to specify therein the amount of stock proposed to be subscribed, and also to prescribe the form of ballots to be used.

such election should vote for the sub. scription, the board of county commissioners should order the county clerk to make it in the name of the township, and should cause such bonds as might be required by the terms of the vote and subscription to be issued in the name of such township, to be signed by the chairman of the board and attested by the clerk, under the seal of the county.

Held, These provisions of the legis

lative act make it evident not only that subscription. These are all extrinsic the county board was constituted the facts, bearing not so much upon the agent to execute the power granted, but authority vested in the board to issue that it was contemplated the board the bonds as upon the question whether should determine whether the facts that authority should be exercised. existed which, under the law, warranted They are all, by the statute, referred to the issue of the bonds. The board was the inquiry and determination of the to order the election, if certain facts board, and they were all determined beexisted; and then the board, and fore the bonds and coupons came into it only, was to decide whether the the hands of the plaintiff. He was, things precedent to the right to order therefore, not bound, when he purchasan election were actual facts. No other ed, to look beyond the act of the legis tribunal could make the determination, lature and the recitals which the bonds. and the members of the board had pecu- contained. liar means of knowledge beyond what any other person could have.

The order for the election, then, involved a determination by the appointed authority, that the petition for it was sufficiently signed by fifty freeholders who were voters; that the petition was such an one as contemplated by the law, and that the amount proposed by it to be subscribed was not beyond the limit fixed by the legislature; the subse quent issue of the bonds containing the recital above quoted, that they were issued "by virtue of and in accordance with" the legislative act, and in “ pursuance of and in accordance with the vote of three-fifths of the legal voters of the township," was another determination not only of the result of the popular vote, but that all the facts existed which the statute required in order to justify the issue of the bonds.

The existence of sufficient taxable property to warrant the amount of the subscription and issue was no more es sential to the exercise of the authority conferred upon the board of county commissioners than was the petition for the election, or the fact that fifty freeholders had signed, or that three-fifths of the legal voters had voted for the

The judgment of the circuit court is reversed, and a new trial ordered.

Opinion by Strong, J.; Miller, Davis, and Field, JJ., dissenting.

EXECUTOR'S COMMISSIONS.
N. Y. SUPREME COURT.-GEN'L TERM.
FIRST DEPARTMENT.

Ireland, applt. v. Corse et al., respts.
Decided May 5, 1876.

Where an executor is allowed by the
terms of the will 6 per cent. commis-
sion for all money collected by him,
the term collection will be construed
in its strict and distinctive sense, and
will not be held to include moneys re-
ceived by the executor as the proceeds
of a sale of property belonging to the
estate, unless it plainly appears that
such was the intention of the testator.
Appeal from a decree of the surro-
gate of New York County, at a final
accounting of the executors of the es-
tate of Andrew L. Ireland, deceased.

The only question raised on the appeal is with reference to the allowance by way of commissions, to John B. Ireland, one of the executors named in the will of Andrew L. Ireland, deceased. The fourteenth clause of the said will provided as follows: "I hereby nominate and appoint John Corse, Esq., my

grand nephew, Wm. Jenkens, Esq., and testator did not intend by the provision John B. Ireland, Esq., executors and in question, to give to appellant 6 per trustees of this my said will, and I further direct that John B. Ireland shall receive 6 per cent of all moneys collect ed by him."

cent. of the proceeds of his entire estate, but to give that sum upon such collections as should be made by him, using the word collection in its strict The testator died seized of a large and distinctive sense. In other words, amount of real estate, and also possessed in providing for a sale of his property, of personal property appraised at about and its conversion into money, by his $3,000. The will directed that the executors, for the purpose of carrying real and personal property be converted out the provisions of his will, he did into money. Appellant claimed that he was entitled to 6 per cent. of all the proceeds of such conversion, under the 14th clause of the will above quoted.

There was

also, at the time of testator's death, $1,200, which he had collected and deposited in the bank to his credit. It would seem this sum was in his hands, so as to be chargeable against him as a debt owing by him to the estate, only deposited to his credit.

not intend that the act should be regarded as a collection entitling appellant to 6 per cent. of the proceeds. The accounting for the $5,800, which the apAppellant had, prior and up to the pellant had before collected, as agent, death of testator, been his agent for and which he was bound to make for the collection of rent, &c., receiving that money, was not a collection within therefor the sum of 7 per cent. commis- the 14th clause of the will sion on all rents collected. He had in his hands, as appears by the testimony, at the time of such death, the sum of $5,800, and in the bank $1,200. The auditor, to whom the accounts were re ferred, found, as one of his conclusions of law, that the testator did not intend that the commissions should apply to It deposited to the credit of the tesany money except that arising from tator, as it may have been, the bank becollections actually made. The appel came indebted to the estate, and if the lant claims that he is entitled under appellant subsequently collected that the 14th clause to 6 per cent. of the en- sum from the bank, he would properly tire estate, real and personal-the pro-be entitled to the 6 per cent for its colceeds of which came into his hands, in lection. It was the duty of the appellieu of his commissions, under the stat-lant to have plainly shown what the The auditor reported that he was facts were with reference to these deunable to determine from the papers be- posits; and in the absence of proof fore him the precise amount which was that the deposit was in the name of the collected by the executor, John B. Ire-testator, it is proper in this appeal to assume that it was in appellant's own land, and for which he should receive a commission of 6 per cent.

ute.

name.

He did not present such evidence to No such claim was allowed by the the auditor or the surrogate as shows the surrogate in his decree.

On appeal

Held, That the construction given to the 14th clause of the will by the sur

rogate is substantially correct; that the

his right to the 6 per cent. upon any specific collection made by him, if any were so made.

Decree affirmed.

Opinion by Davis, P.J.; Brady and Daniels, JJ., concurring.