Opinion of the Court. but there had been no previous contrary decision. As said by this court in Burgess v. Seligman, 107 U. S. 20, "even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the State courts if the question seems to them balanced with doubt." If this were a case arising in the State of New York we should therefore follow the construction put upon the statute by the courts of that State. The circumstance that the case comes here from the State of Florida should not leave the statute open to a different construction. It would be an anomaly for this court to put one interpretation on the statute in a case arising in New York, and a different interpretation in a case arising in Florida. Our conclusion, therefore, is that this action was not brought to enforce a liability in the nature of a penalty. The right of the plaintiffs to sue upon this liability in any court having jurisdiction of the subject-matter and the parties is, therefore, clear. Dennick v. Railroad Co., 103 U. S. 11. The next contention of the defendant is that the recovery of a judgment against the company in the State of New York on the debt due the plaintiffs, and the issue of an execution thereon, returned unsatisfied, is a necessary condition to the liability of the defendant; and as the declaration only avers the recovery of a judgment in the State of Florida, it is insufficient. It appears from the declaration that before the year allowed by section 24 of the statute, for bringing suits against the company on the debts due the plaintiffs had expired, the company had been adjudicated a bankrupt by the District Court of the United States for the Southern District of New York; that all its property had been sold, and the proceeds thereof were insufficient to pay the costs and expenses of the bankruptcy proceedings. Although it has been held by the court of appeals, in the case of the Rocky Mountain Bank v. Bliss, 89 N. Y. 338, that a judgment in a court of the State of New York was necessary to fix the liability of a stockholder under section 10 of the act Opinion of the Court. under consideration, yet the same court, in the case of Shillington v. Howland, 53 N. Y. 371, held that in an action brought to charge a defendant as stockholder in a company organized under the same law, an adjudication in bankruptcy of the company excused a compliance with the condition which required a suit to be brought against the company within a year after the maturity of the debt, and a judgment to be recovered and an execution to be issued thereon and returned unsatisfied. We see no reason why we should not follow this decision, and it is conclusive of the question under consideration. The object of section 24 was to compel the creditor to exhaust the assets of the company before seeking to enforce the liability of the stockholder. When the declaration shows that this was done, and that a literal performance of the condition would have been vain and fruitless, the performance of the condition may well be held to have been excused. Lastly, it is objected that the declaration sets out a case which should have been prosecuted in equity, and not at law. There is no ground for this objection to rest on. In the cases of Pollard v. Bailey, 20 Wall. 520, Terry v. Tubman, 92 U. S. 156, to which we are referred in its support, the liability of the stockholders was in proportion to the stock held by them. Each stockholder was, therefore, only liable for his proportion of his debts. This proportion could only be ascertained upon an account of the debts and stock, and a pro rata distribution of the indebtedness among the several stockholders. This, the court held, could only be done by a suit in equity. But in this case the statute makes every stockholder individually liable for the debts of the company for an amount equal to the amount of his stock. This liability is fixed, and does not depend on the liability of other stockholders. There is no necessity for bringing in other stockholders or creditors. Any creditor who has recovered judgment against the company and sued out an execution thereon, which has been returned unsatisfied, may sue any stockholder, and no other creditor can. Such actions are maintained without objection in the courts of New York, under section 10 of the statute relied on in this case. Shillington v. Howland, 53 N. Y. 371; Weeks v. Suydam, Syllabus. 64 N. Y. 173; Handy v. Draper, 89 N. Y. 334; Rocky Mountain Nat. Bank v. Bliss, Id. 338. We have considered all the objections made to the declaration. In our opinion-none of them are well founded. Our conclusion is, therefore, that the declaration was sufficient, and it follows that The judgment of the circuit court must be reversed, and the cause remanded for further proceedings in conformity with this opinion. Case No. 122, John I. Adams & Co. v. Adna C. Conn, is in all respects similar to the case just decided, and was submitted on the same arguments and briefs. The judgment in that casc must, therefore, be reversed, and the cause remanded to the circuit court for further proceedings, in conformity with the opinion announced in the case No. 121. TERRE HAUTE & INDIANA RAILWAY COMPANY v. STRUBLE. IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI. Argued November 14th, 1883.-Decided November 26th, 1883. Contract-Practice-Review. 1. A railway company, in consideration of the undertakings of S. in a written agreement, agreed therein to send all live stock coming over its road to East St. Louis, to the stock yard of S. at that place, except such as should be specially ordered otherwise by shippers or owners, and to pay him therefor an agreed rate for loading and an agreed rate for unloading: Held, that this agreement applied to all live stock shipped in the ordinary course of the company's business over its road, the direction of which was not otherwise specially ordered by shippers, and which it was possible for the company to have loaded at the stock yard of S.; and, that on a breach on the part of the company being proved, without fault on the part of S., he could recover from the company damages in consequence of stock being sent by the company to another stock yard at that terminus. 2. The action of the court below in denying a motion for a new trial is not subject to review. Opinion of the Court. Action on a written contract under seal to recover damages from the railway company for a breach. The essential facts appear in the opinion of the court. Mr. John G. Williams for the plaintiffs in error. MR. JUSTICE HARLAN delivered the opinion of the court. This action was brought by Struble, the defendant in error, to recover damages for an alleged breach of a written contract entered into between him and the Terre Haute and Indianapolis Railroad Company. A verdict and judgment were rendered in favor of plaintiff for the sum of $10,440. The defendant moved for a new trial and in arrest of judgment, and both motions having been denied, the case has been brought here for review. By the contract in question Struble obligated himself to build and keep in good order on his leased grounds, in East St. Louis, Illinois, all necessary stock yards and feeding pens suitable for the reception, feeding, handling, loading and unloading of live stock which might be shipped or transported over the Terre Haute and Indianapolis Railroad to and from East St. Louis; to receive and unload all live stock over that road; to collect all freight and charges on same, and pay over to the company or its authorized agents all moneys so collected; to order from the proper agent of the company all cars necessary for the transportation of live stock from East St. Louis; to load in a proper manner all live stock for transportation from that place by that company; to bed such cars at a cost to shippers of not more than one dollar per car, to be collected by him from shippers; and to attend to all other necessary matters pertaining to the safe and prompt loading of all such live stock for transportation over that road. The company, in consideration of the performance by Struble of the stipulations of the contract, agreed to build all necessary loading shutes for the use of the company connected with said yards; to send all live stock coming to East St. Louis over its road to Struble's yards, except such as may be specially ordered Opinion of the Court. otherwise by shippers or owners; to pay him fifty cents per load for all stock received by him over the road and unloaded in his yards, and two dollars for each and every car of live stock loaded by him to be transported by the company from East St. Louis; and to give him the loading of all live stock which may be transported over its road from that city. Struble's yards were completed and opened for business in December, 1870. From that date until some time in October, 1873, all live stock coming to East St. Louis over defendant's line was unloaded at those yards, and live stock shipped over that road from that city was loaded by Struble, Early, however, in the fall of 1873, the National Stock Yards were completed and opened for business. They were just outside of the corporate limits of East St. Louis, and near defendant's road. The plaintiff claimed that up to October, 1873, he performed all the conditions of the contract, and was ready, willing, and able to comply with it in all respects, until it should, by its own terms, be terminated; but that he was prevented by defendant after that date from fully executing it. All this the defendant denied. The record, contains numerous assignments of error, but we shall notice only such as are relied on in argument. They seem to embrace every essential question in the case. The 1. It is claimed that the court below erred in admitting evidence offered by the plaintiff. The specification under this head refers to evidence as to the number of cars loaded with live stock and taken by the defendant from the National Stock Yards, between August 1st, 1874, and April 1st, 1880. contention of plaintiff was that, within the meaning of the contract, he was entitled to load those cars, and recover therefor from the defendant the price fixed in the contract for such services; this, upon the alleged ground that that stock had not. been specially ordered by shippers or owners to the National Stock Yards, and could have been directed by the defendant to Struble's yards had it made any or proper effort to do so. In this view the evidence objected to was competent, as furnishing a basis to estimate the damagès which plaintiff sustained by |