Woodruff v. Hough, 91 U.S. 596

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Woodruff et al. v. Hough et al.

1. A., who had covenanted with the supervisors of a county to construct a jail subject to the approval of a superintendent, who was authorized to stop the work if it and the materials furnished did not conform to certain plans and specifications, entered into a contract with B. to manufacture and erect in its proper position all the wrought-iron work for the jail, according to such plans and specifications. Held, that B. was entitled to recover on his contract the value of the work done and materials furnished by him, if he substantially complied with the plans and specifications, or a strict compliance therewith had been waived by A., although the supervisors, in the exercise of the power reserved in their contract with A., condemned B. s work, and required A. to replace a portion of it.

2. Where the charge of the court below covers the whole ground necessary to enable the jury to apply the law to the matters in issue, and is not subject to any just exception, so that, if there be any error in the proceedings, i was committed solely by the jury, this court has no jurisdiction to re ry the cause as if it were both court and jury, but must affirm the ju gmen

Error to the Circuit Court of the United States for the Northern District of Illinois.

On the 18th of the same month, Allen made a contract with the defendants in error, who were the plaintiffs below, whereby they agreed to “ furnish the material, manufacture, deliver, and erect in its proper position, all the wrought-iron work ” for the jail, according to certain plans and specifications mentioned in his contract with the supervisors. It set forth the terms of payment by him, and a provision for an increase or decrease in cost occasioned by any changes in the materials or in the construction of the iron-work which might, be made by the building committee.

The plaintiffs in error entered into a written guaranty with the defendants in error for the faithful performance by Allen of his agreement.

During the progress of the work, differences arose between Allen and his sub-contractors, growing out of the refusal of the supervisors to accept the work furnished by the latter, on the ground that it was not in compliance with the specifi ca.ti on s of his contract with the supervisors and with defendants in error. After much of the work was done and put in place, it was condemned, and the work abandoned by defendants in error, who brought this suit against Allen’s sureties for his failure to pay as they had guarantied he would.

The defendants below asked the court to instruct the jury, that if it appeared from the evidence that the plaintiffs had abandoned their contract with Allen before its entire completion, and after only a partial performance, they could not recover in an action on the special contract.

That even if it appeared from the evidence that the plain-8, after commencing work under their said contract, had een improperly obstructed in or prevented from the perform-

ance of the same, they could not maintain an action on the speeia contract sued on without proving a tender to Allen of a ance of the work required to be done by them by their said contract with him.

That the defendants, being mere sureties upon a special written contract, were not necessarily liable, even though an action might be sustained against Allen.

That, under the facts as disclosed by the evidence, no action was sustainable upon the written contracts mentioned in the declaration, but that the plaintiffs’ remedy was limited to an action upon an implied contract on the part of Allen to pay for the value of such work as had been retained by him, after it was furnished by the plaintiffs in alleged partial performance of their contract.

That the defendants were not liable upon their guaranty, if the plaintiffs were not entitled to recover upon their written contract with Allen.

But the court refused to so charge the jury, and thereupon gave its charge substantially as follows: —

To fully understand the obligations and liabilities of the parties, it is necessary to ascertain definitely the duties and obligations which plaintiffs and Allen had respectively assumed under their contract of July 18. The contract recites in substance that Allen had entered into a contract with Winnebago County to build and complete a jail at Rockford, according to certain plans and specifications.

The plaintiffs agreed to furnish the material for, manufacture and deliver, and erect in its proper position, all the wrong b iron work for said jail mentioned, and provided for in sai plans and specifications under the caption of “Specifications for wrought-iron work.”

These specifications, it will thus be seen, are an impo an element in the contract between Allen and plaintiffs; an i M only by reference to them that we are able to ascertain nitely what plaintiffs agreed to do.

The first requisite as to the character of the wrought-iron work is, that it is all to be made of the best quality Lake Superior iron, unless otherwise ordered in writing by the superintendent.

The plaintiffs claim that they proceeded, according to the terms of their agreement, to provide the materials and manufacture the iron-work required substantially in the manner called for, and had proceeded to put the iron lining and five of the window-frames in place, and were ready to proceed to put the open-work partition, and cell-doors, and other parts of the work, in place, when they were stopped by Allen and the building committee.

The defendants, besides interposing several technical, or rather legal defences, arising out of what they claim to be the law of the case on the admitted facts, insist that the work brought upon the ground and offered to be put in place did not conform to the plans and specifications, and that the same was therefore rightfully rejected.

It is admitted that the lining furnished by plaintiffs has been built into the wall since they were stopped in the performance of their contract, and has become apparently a part of the structure, without objections from the superintendent or building committee.

It is conceded on the part of the plaintiffs, that, in several important particulars, this work is not in accordance with the specifications; but it is also insisted that a literal compliance with the specifications and plans in those respects is practically impossible; and they are, therefore, excused in the premises.

In connection with this branch of the case, and as throwing some light upon the construction the parties intended to put upon the term used to describe the material, I call your attention to the fact, that there is no proof that any objection was made to the material or kind of iron employed, with the exception of the lining-plates.

As for failure to use the kind of plates and T iron bars in the iron lining called for by the specifications, the plaintiffs mainly depend upon the consent of Allen and the building committee to accept the building as made, rather than upon their right to insist that they have complied in that regard with the specifications.

If you find from the evidence that they did so agree, then the work as made should be deemed by you to have been substituted by agreement of parties for that described in the specifications ; the jury taking into consideration, in fixing the value of the work as made, any imperfections in the workmanship, and the work yet remaining to be done at the time it was abandoned by plaintiffs.

In other words, the jury are to determine from the evidence the value of the lining to Allen for the purpose of completing his contract as plaintiffs left it.

Having heard the testimony in relation to the open-work partition, and had the plans shown and explained to you, it is for you to say, under the proof, whether this part of t e work complied with the contract. If it did not, then Al en was not bound to accept it, and had the right to forbid p am tiffs from putting it up. ,

So in regard to the cell-doors, window-frames, and gratings. If the testimony satisfies you that these portions of the work were made substantially as required in the drawings, and that, if the doors are too large for the openings left to receive them, it is due either to the mistake of the mason or to a mistake in the scale on which the drawings were made, then plaintiffs ought not to suffer, and should recover for the value of the window-frames put in place, and also for the value of that ready to be put in place, if it was made in conformity with the drawings, but subject to this reservation.

The contract was an entirety; and the plaintiffs had no right to put in the window-frames, cell-doors, &c., even if they complied in all respects with the drawings and specifications, if they at the same time insisted on putting in the partition also, which did not conform to the plans.

If you believe from the evidence that the plaintiffs insisted on putting in a partition which was not made according to the plans, then they cannot recover for the doors and window-frames not put up and used, even though they may be properly constructed.

If you find from the evidence that the contract has been partially performed by the plaintiffs, and that they have been prevented from performing the remainder of the work by Allen, and that he has adopted or used a portion of the work, then it will be your duty to ascertain from the evidence the value of t e work thus done and appropriated, and the plaintiffs will be entit ed to recover the value so found as damages: but you s ould also deduct from the amount thus found any sums due rom plaintiffs to Allen for advances made by him on their ac-Cf 5 a^° ^amaSes which Allen has sustained by reason

® non-performance of said contract between plaintiffs and se, provided you believe there was any breach of contract ic entitles Allen to damages; and, in estimating Allen’s a a?es’ y°y must be governed by the evidence in the case, PP ymg it in the same manner as you would do if Allen had a suit for damages on said contract.

Thereupon the jury gave their verdict in favor of the plaintiffs for $5,000 damages, and judgment was rendered therefor.

The defendants having excepted to the refusal of the court to charge the jury as requested, and also to the charge as given, sued out this writ of error.

Mr. H. K. Whiton for the plaintiffs in error, and Mr. John N. Jewett for the defendants in error.

Mb. Justice Mllleb delivered the opinion of the court.

The errors assigned relate to the charge of the court, and the refusal to charge as requested by plaintiffs in error.

The main ground of error seems to be, that the court did not treat Hough & Butler, the sub-contractors under Allen, as bound by all Allen’s contract with the supervisors. But, while they accepted the specifications for the wrought-iron work which were in Allen’s contract with the supervisors, they did not agree to be bound by the supervisors’ acts in accepting or rejecting the work as coming up to these specifications.

This Allen did in his contract with them; and no doubt this has led to the present controversy. The supervisors reserved the right to decide as between them and Allen whether the work conformed to the specifications. Allen reserved no such power in his contract with defendants. These latter had a right, in the event of a difference on that subject, to have the difference settled by a court of law ; and Allen ran that risk if he rejected any of their work. But the supervisors could reject work without such hazard, because Allen had agreed to-submit to their judgment in case of such a difference.

The plaintiffs desired to have the court give the jury a more specific construction of the contract than it did as to the kin of work required, and also as to the failure of defendants in error to perform the work as so construed.

The court repeated the details of the contract on the points where the failure was alleged, and then told the jury, that ess the contractors had complied substantially with these spec ca tions, or a strict compliance therewith had been waive, y could not recover. The charge was very full, and covere whole ground necessary to enable the jury to apply ^ie aW the matters in issue. We do not find in it any error.

The fact that Allen will, under the judgment recovered by defendants in error, taken in connection with the amount he has had to pay to others to complete the wrought-iron work, be a loser to the amount of several thousand dollars, does not prove the instructions of the court to be wrong. If there was any error, it was committed by the jury, and not by the court. It is only another one of those cases, so common from that circuit, in which, with the whole charge of the court and much of the testimony in the bill of exceptions, this court is expected to retry the case as if it were both court and jury. Our repeated refusal to do this will be adhered to, however counsel may continue to press on our attention the mistakes of juries. They are beyond our jurisdiction. Judgment affirmed.

Gilman et al. v. Illinois and Mississippi Telegraph

Company.

COYKENDALL, GARNISHEE, V. IDEM.

1. Where a trial by the court below was not had under the act of March 3, 1865 (13 Stat. 501), the rulings excepted to in the progress of such trial cannot be reviewed here.

2. Where it is clearly implied by the terms of a mortgage executed by a railroad company that the latter was to hold possession and receive the earnings of the road until the mortgagees should take it or the proper judicial authority intervene, such possession gives the right to the whole fund derived therefrom, and renders it, therefore, liable to the creditors of the company as if no mortgage existed.

3. A decree, silent as to the profits and possession of the mortgaged premises from its date until the sale thereby ordered, does not affect the right to such profits and possession during that period.

These cases come here from the Circuit Court of the United fates for the District of Iowa, — the former by appeal, and e latter by writ of error.

the Des Moines Valley Railroad Company, by its en corporate name, in order to secure the payment of its 011 s, executed to certain trustees a mortgage of its road, property, and franchises, “together with the tolls, rents, and pro s to be had, gained, or levied therefrom.”

One of the provisions of this mortgage was as follows: —

“ It is hereby further provided, that until failure to pay the interest on said bonds, or to pay the principal at maturity, or to apply, appropriate, set apart, and deposit the several sums of money to be applied, appropriated, set apart, and deposited, as hereinafter provided, the said party of the first part shall have the sole right to the possession, use, management, and control of the said mortgaged property and premises, and of the receipts and revenues thereof, as if this instrument had not been made; but if the said party of the first part shall fail to pay or cause to be paid the principal of the said bonds, or any of them, at the maturity thereof, or shall fail to pay or cause to be paid the interest on the said bonds, or any of them, or any part thereof, on any day whereon the same is made payable by the terms of the said bond, and the same shall remain unpaid for the space of six months after having been demanded, whereby at the option of the holders of one-third in amount of all the outstanding unconverted and unredeemed bonds the principal sum secured thereby shall become immediately payable, or shall fail to apply, appropriate, set apart, and deposit the several moneys required to be applied, appropriated, set apart, and deposited, as hereinafter provided, then and in that case it shall be lawful for the said parties of the second part, their survivor or successor or successors, and it shall be their duty, to enter upon and take possession of all and singular the property, premises, and franchises hereby granted and conveyed, or so expressed or intended to be, and by themselves, or their agent or agents, substitute or substitutes, duly constituted, have, use, operate, and employ the same, making from time to time all needful repairs, alterations, or additions, collect and receive all the tolls, rents, or profits to be had or gained therefrom, and apply all the moneys arising therefrom to the payment of the interest due and to grow due on all the said bonds which may be outstanding, unconverted, and unredeemed, and to t e payment of the principal of all and each and every of such bonds when such principal shall become due and payable.”

In 1868 the company executed a second mortgage to certain other trustees, in which was conveyed the road with its appur tenances, and “ also all rents, issues, income, tolls, profits, cur rency, moneys, rights, benefits, and advantages derived, or be derived, had or received therefrom by said company in any

way whatever.”

“ To have and to hold the above granted and bargained premises, with the appurtenances thereof, unto the said trustees, and to the survivors and survivor of them, and to their and his successors and successor, and their and his assigns, in trust, and upon the trust, uses, and purposes hereinafter expressed, of and concerning the same, for the use and benefit of the person or persons, firm or firms, bodies politic or corporate, who shall hereafter at any time become the purchasers or holders, owners or bearers, of any or either of said bonds, subject to the terms, provisions, and stipulations in said bonds contained, and also subject to the possession and management of said railroad and property by said company, and its successors and assigns, so long as no default shall be made in the payment of either interest or principal of said bonds, or in any or either of them, or in payment of the amount of money, as is herein provided for the sinking fund, and so long as the said company shall well and truly observe, keep, and perform all and singular the covenants, agreements, conditions, and stipulations in said bond and in this indenture contained and set forth, and which are to be observed, kept, and performed by and on the part of said company.

“And it is agreed, in case of the default of the payment of the semi-annual interest as above provided, that said trustees and the survivor or successors of them are hereby expressly authorized and empowered, upon the request in writing of a majority in interest of the owners or holders of said bonds, to enter into and upon, and to take actual possession of, all the property, real and personal, rights, franchises, and privileges, of the premises hereby conveyed, and each and every part thereof, and by themselves, or by their attorneys or agents, have, hold, use, and enjoy the same, and from time to time make all repairs and replacements, and all useful alterations, additions, and improvements thereto, as fully as the parties of the first part might have done before such entry, and to collect and receive all tolls, freight, incomes, rents, issues, and profits of the same, and of every part thereof.”

On May 31,1873, a decree of foreclosure was entered by the State court, fixing the priorities of the several parties, and holding that the telegraph company’s judgment, hereinafter mentioned, was a lien subject to the mortgage in suit and to other specified liens.

The decree ordered a sale of the mortgaged property by the sheriff on special execution, but, as originally entered, made no provision as to the possession or earnings of the road (which was still in the possession of the railroad company, and operated by it) between the date of the decree and the sale which the decree ordered.

On the thirteenth day of June, 1873, the telegraph company issued execution on a judgment for $23,734.10, which it had on the 24th of May, 1872, obtained against the railroad company in the Circuit Court of the United States for the District of Iowa, and garnished, under the statute of the State, moneys in the hands of the agents of the railroad company at its various stations, received by them from the income and earnings of the road.

The trustees in the first and second mortgages filed, June 20, 1873, the present bill in equity against the telegraph company to enjoin the said proceedings upon the execution under its judgment. The bill was, the twenty-seventh day of June, 1873, amended so as to make the Des Moines Valley Railroad Company a defendant; and a temporary injunction, as prayed for, was allowed.

On Sept. 9, 1873, after a sale had been advertised by the sheriff, application was informally made to the State court, by the trustees under the first mortgage, for a modification of t e decree of May 31,1873; and the same was modified by appointing a “special receiver of all the income and earnings of t e road” between the date of the decree or sheriff s first pul• ica tion of notice of sale and the sale to be made by him. 18 was done, saving the rights of the telegraph company. $

The special receiver took possession Sept. 15, 1 . sale by the sheriff under which the purchasers were e possession took place Oct. 17, 1873, and left a large amoun the mortgage bonds unpaid.

Between the date of the decree of May 31, 1873, and Sept. 15,1873, when the special receiver took possession, the road was operated by the railroad company; and, during this period, the net earnings were $27,147.96.

Coykendall, who was garnished, had received $27,000; and judgment in the suit at law was rendered against him for that amount.

The Circuit Court dismissed the bill of the complainants.

Mr. George Gr. Wright for the appellants and the plaintiff in error.

The railroad company had legal capacity to mortgage, and did mortgage, its future earnings; and they became as much part of the bondholders’ security as did the road-bed, rolling-stock, or any other part of the mortgaged property. Act of March 31, 1858; Rev. Stat, of Iowa, 1860, p. 222; Pennock v. Coe, 23 How. 117; Jessup et al. n. Bridge et al., 11 Iowa, 573; Bunham n. Isett, 15 id. 284; 2 Redf. on Railws. 455, 485; Galveston Railroad v. Cowdry, 11 Wall. 453.

It may be urged by counsel for defendant, that the lien of the mortgages became merged in and extinguished by the decree. The foreclosure proceeding is not for the purpose of obtaining a better or higher order of lien, but simply for the purpose of enforcing an already existing and sufficient one. The lien of a mortgage is not extinguished by decree of foreclosure. Riley's Adm'r v. McCord's Adm'r, 21 Mo. 287; State of Iowa v. Lake, 17 Iowa, 215.

If it be true generally, that a mortgage lien is merged in a oreclosure decree, it will, in exceptional cases, be kept alive for reasons similar to those that operate to prevent merger in other similar cases. It is familiar law, that although ordinarily, w en the mortgage interest and the equity of redemption unite n t e same person, the former will become merged in the th interest of the common owner requires

a t ey shall remain distinct and separate, such will be pre-will L ^ave J56611 liis intention, and the lien of the mortgage

1 e kept alive for the purpose and to the extent of upholdmg such interest. The same rule, for the same reason, should be held to apply

If by foreclosure the mortgage lien becomes merged, it can only be so to the extent that the mortgaged property is, by the proceedings and the terms of the decree, sought to be subjected to the payment of the mortgage indebtedness. The bondholders may enjoin a judgment creditor of the road, who, by garnishment, seeks to subject its income and tolls to the payment of his debt. Dunham v. Isett, 15 Iowa, 284; Long n. Matheison, 2 Giff. 71; Furness n. Chaterham Railway, 29 Beav. 358; State v. North Central R.R. Co., 18 Md. 193.

Mr. J. Scott Richman and Mr. J. D. Caton, contra.

The general laws of Iowa provide, that, in the absence of stipulations to the contrary, the mortgagor of real property retains the legal title thereto, and the right to the possession thereof. His estate is the subject of a lien, of a sale under execution, or of his conveyance. Curtis n. Millard et al., 14 Iowa, 128.

This estate is not covered by any general mortgage. It can only be parted with by special contract, — by “ stipulations to the contrary?' If they provide, that, under certain circumstances, this right shall be surrendered in a particular form or way, that form must be followed. Until the claim is made therefor, the possession and the rents and profits of the road belong rightfully and legally to the mortgagor, subject to execution, lien, or sale. Curtis v. Millard et al., supra.

The decree is now the evidence of the lien of the bondholders upon the railroad. If their lien is not thereby fixed upon thé earnings of the road between the date of the decree and the time when the purchaser thereunder would be entitle to the possession of the road, then there is no such lien, an the court below could not give the complainants the re le which the State court withheld, in adjudicating their ng 8 under their mortgage. The debt is the principal thing. ® mortgage is a security merely. Whatever satisfies the e merges the security. If the debt is barred by the statu e. limitations, the mortgage is barred also. Newman v. c or mer, 19 Iowa, 214. The appellants, having a lien by virtue o. their mortgage, instituted a proceeding to have it en orc

Having failed to take or demand possession of the railroad, or to pray for the appointment of a receiver, they obtained such relief as they were entitled to upon the case made by the pleadings and proofs. Their mortgage having been merged, it cannot defeat the rights of the telegraph company, which attached by the levy of its execution. Goodrich et al. n. Dunbar, 17 Barb. 644; Freem. on Judg., sect. 125; Green v. Sarmiento, 1 Pet. C. C. 74; Butler v. Miller, 1 Den. 407; Carson v. Montino, 2 Johns. 308; United States n. Price, 9 How. 83—94; Willings $ Francis v. Consequa, 1 Pet. C. C. 393; Ward n. Johnson, 31 Mass. 140; Robertson v. Smith, 18 Johns. 459; Eldred v. Bank, 17 Wall. 545; Mason n. Eldred, 6 id. 231; Jones v. Johnson, 3 W. & S. 276; The People v. Beebe, 1 Barb. 388; Ayres v. Cayce, 10 Tex. 99.

It is well settled in Iowa, that a party cannot have greater relief than he asks for in his petition, or than the averments of his petition entitle him to. Code, sect. 2885; Cameron v. Boyle, 2 Gr. 164; Haven v. Birch, 5 Iowa, 503; Stadler v. Parmelee, 10 id. 23. If, as in this case, the right to the earnings depends upon a contract, or a stipulation which provides the mode in which they shall be received and applied, that mode must be pursued, or there must be some attempt to pursue it by a demand made of whatever may be necessary to secure them. If such demand is refused, then the law points out the remedy; ut there must be a foundation laid for the appointment of a receiver by averment and proof of the necessary facts. Insurmce Co. v. Stebbins, 8 Page, 565; Aston v. Turner, 11 id. 436;

V* $1 N. Y. 447; Classen n. Cooley, 5 Sandf. 447; Strong v. Dallner $ Potter, 2 id. 444. The cases of Gal-*59 M Mailroad \G™dry, 11 Wall. 459-482, Noyes n. Rich, . e. 115, and City of Bath v. Miller*, 51 id. 341, are precisely m point. J

As to the judgment against the garnishee, it is submitted at tb SUC^ ru^n^8 court below as are excepted to revi 6 an^ Presented by bills of exceptions, can be 25oWed here’ ■Dickin8on v- Planters’ Bank, 16 Wall.

art hhis case had been tried under the arc 3,1865; but it was not. A case at law, in which

there were questions both of law and fact to decide, was submitted to the court. The judgment below must, therefore, be presumed to be right; and it will be affirmed. Campbell et al. v. Clement Eoyean, 21 How. 223; Gould et al. v. Frontín, 18 id. 135; Saydam v. Williams et al., 20 id. 432; Kelsey et al. v. Forsyth, 21 id. 85; Kearny v. Case, 12 Wall. 273, 284; Phillips v. Preston, 5 How. 290.

Mr. William M. Evarts in reply.

In advance of the direct consideration of the equities of the plaintiffs, under their mortgage and subsequent to their foreclosure decree, as against this judgment creditor, under his execution it is well to define and understand these equities as between the plaintiffs and the railroad company (the mortgagor to the plaintiffs and the judgment debtor).

This proposition cannot be disputed. Gal. f Ch. Un. R.R. Co. v. Menzies, 26 Ill. 121.

In the case at bar, the lien of the mortgage and its continuance up to the sale of the mortgaged premises is the very life and support of the decree up to its final execution by such sale. As to this judgment creditor, the lien of its judgment upon the mortgaged premises, and every part thereof, had been adjudicated in this decree, its subordination to the plaintiffs’ lien established, and the possibility of interference with, or disparagement of, the plaintiffs’ lien by or through that judgment, precluded.

But, subsequent to the decree in foreclosure, process on this judgment against income of the mortgaged premises, to accrue between the decree and its execution, issues, on the ground that the income, during this interval, is not covered by the decree, and the subordination of the judgment to the mortgage in this behalf has not been adjudicated; in other words, that the execution raises a new lien upon a new subject.

It is submitted that the decree in foreclosure is no bar to a suit to restrain an inequitable interference with the income of the road, first threatened after the decree, and in respect of income arising thereafter. The injunction suit is ancillary to the objects of the principal suit, and to suppress an inequitable subtraction of a portion of the mortgaged property from the equitable lien of the mortgagee.

If any circumstance were wanting to exhibit the fa sity o reasoning and the injustice in result by supporting this gar nishee process, it is supplied by the evidence in the pnncipa cause, that the fund sought to be applied in satisfaction 0 ® judgment comes from earnings, for the most part, accruing a this injunction bill was filed by the plaintiffs. In e ect ’ equitable execution is given by the Circuit Court to t e J ment creditor to sequestrate income confessedly covere y prior express lien of the plaintiffs mortgage, after sui to enforce the lien of the latter.

Me. Justice Swayne delivered the opinion of the court.

These cases have been argued together, and will be decided together. The case at law will be first considered.

On the 24th of May, 1872, the telegraph company recovered in the Circuit Court of the United States for the District of Iowa a judgment for the sum of $23,734.04 and costs. On the 13th of June following, execution was issued. On the 17th of that month, the marshal to whom the process was directed served it by attaching as garnishees several persons, one of whom was Coykendall, the plaintiff in error. On the 27th of October, 1873, he filed his answer; and on the 27th of October, 1874, he filed a further answer.

By the first answer he admitted, that, since he was garnished, he had received for and paid over to the railroad company more than 837,000. In his second answer he set forth that he was the agent of the railroad company at Des Moines; and that his duties were to sell tickets and receive and ship freight, and to receive the charges upon such freight. For the moneys received both for tickets and freight a large proportion belonged to other companies, but how much he did not know. All the moneys he received were regularly transmitted to the assistant-treasurer of the Des Moines company.

The proper apportionment of the moneys was made by the officers of that company at Keokuk, and the Des Moines company was accountable to the other companies for what belonged to them. He was not in the employment of any other company or person during the time mentioned, and was not responsible to any other company or person for the moneys which he received, as before stated.

The gross amount received by him, between the time he was garnished and the appointment of the receiver who took possession of the road, was $27,000.

The case was submitted to the court, and argued by the ounsel upon both sides. The next day it was stated to the dd I Counse^ ^or bhe defendant that proof could be bhe proportion of the moneys in question which onged to other companies, and time was asked to procure it.

The case having been submitted to the court and argued by the counsel of both parties, the garnishee not asking for a jury, the record in this respect shows no error. It is to be taken that both parties waived a trial by jury, and they are bound accordingly. Phillips v. Preston, 5 How. 278; Campbell n. Boyreau, 21 id. 224; Kelsey v. Forsythe, id. 86. The proceeding not having been according to the act of March 3, 1865, this court has no power to examine any ruling of the court below excepted to during the progress of the trial. Campbell n. Boyreau, supra; Guild et al. v. Fontin, 18 id. 135; Kearney v. Case, 12 Wall. 275; Dickinson n. The Planters’ Bank, 16 id. 250. The only point attempted to be presented by the bill of exceptions was the refusal of the court to give time for the production of further evidence. If this subject was before us in such a shape that we could consider it, it would be a conclusive answer that the matter was one resting in the discretion of the court. Its determination, therefore, could not be reviewed by this tribunal.

This brings us to the examination of the case in equity.

The bill was filed to prevent, by injunction, the collection of the moneys upon which the judgment in favor of the telegraph companies was founded. There is no controversy between the parties as to the facts.

On the 16th of February, 1857, the railroad company, by its then corporate name, executed a mortgage; and on the 1st o October, 1868, by its corporate name as altered, execute another. Both were given to secure the payment of its on s as set forth. A part of the premises described and pledge y both mortgages, besides the road, was its income.

In case of default in the payment of interest or principa, mortgagees were authorized to take possession, and co ec a receive the income and earnings of the road, and app y ® the debts secured, and, upon the request of one-thir bondholders, to sell the mortgaged premises.

The conditions of both mortgages having been broke11, mortgagee^ in the second mortgage filed their bill o orec in the Circuit Court of Polk County, in the ta e o

The mortgagees in the second mortgage — various judgment and lien creditors, among the former the telegraph company — were made defendants. On the 31st of May, 1873, a decree of foreclosure and sale wa,s rendered. It fixed the priorities of the several parties, and held that the judgment of the telegraph company was a lien subject to the mortgage in suit and other specified hens. It ordered a sale of the mortgaged property. The road was still in possession of the company. The decree made no provision for disturbing their possession, and none whatever as to the income of the road between the time of the decree and the time of the sale. The telegraph company proceeded, as we have stated, in disposing of the case at law. On the 20th of June, 1873, the appellants, who are the trustees in the two mortgages, filed this bill. On the 9th of September, 1873, after the sheriff had advertised the mortgaged premises for sale, the decree in the State court was amended by providing for the appointment of “ a special receiver of all the income and earnings of the road ” between the date of the decree and the time fixed by the sheriff for the sale to be made by him. This was done with a saving of the rights of the telegraph company. The special receiver took possession on the 15th of September, 1873. The sale by the sheriff was made on the 17th of October, 1873. The road was operated by the company up to the time when the receiver took possession.

During this period, the fund was received for which judgment was given against Coykendall.

The proceedings in the case at law having been held valid, t e telegraph company is entitled to the fund in controversy, unless the appellants have shown a better right to it. The question arises upon the mortgages. The civil law is the springhead of the English jurisprudence upon the subject of these ecunties. Originally, according to that jurisprudence, mortgages of the class to which those here in question belong vested e tee, subject to be divested by the discharge of the debt at

The remedy last mentioned was resorted to in the State court by the mortgagees in the second mortgage, those in the first hawing been made parties, and that mortgage thus brought before the court. That court, therefore, had full jurisdiction as to the rights of all the parties touching both instruments. It would have been competent for the court in limine, upon a proper showing, to appoint a receiver, and clothe him with the duty of taking charge of the road and receiving its earnings, with such limit of time as it might see fit to prescribe. It might have done the same thing subsequently, during the progress of the suit. When the final decree was made, a receiver might have been appointed, and required to receive all the income and earnings until the sale was made and confirmed, and possession delivered over to the vendee.

Nothing of this kind was done. There was simply a decree of sale. The decree was wholly silent as to the possession and earnings in the mean time. It follows that neither, during that period, was in any wise affected by the action of the court.

They were as if the decree were not.

As regards the point under consideration, the decree may, therefore, be laid out of view.

The stipulation renders it unnecessary to consider the amendment to the decree.

Without that stipulation, the result would have been the same. It could not affect rights which had attached before it was made.

Nothing was done in the exercise of the right which t e mortgages gave to the mortgagees to intervene and take posses sion. We may, therefore, lay out of view also both these topics. ,

This leaves nothing to be examined but the effect o mortgages, irrespective of any other consideration.

In Galveston Railroad n. Cowdrey, 11 Wall. 459, substantially the same question arose as that we are considering. The mortgage there contained provisions touching the income of the road similar to those in the mortgages before us.

This court held, that, at least until after a regular demand was made, those who received the earnings were not bound to account for them. See also The City of Bath v. Miller, 51 Me. 341; Noyes, Receiver, v. Rich, 52 id. 115.

Upon both reason and authority, we think the appellants have no right to the fund in controversy.