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to Hall was contemplated.

the title.

In no event was he to be invested with He was in fact, in any event, to return these cattle to the cattle company. The company, not Hall, had the power of disposition. The company, not Hall, was to select the time of sale and the market. The company, not Hall, was to transport the cattle to market; and while in transit, and thereafter while awaiting sale, the cattle were to be in the possession of, and at the risk of, the company.

It cannot be denied that one stipulation of the contract, considered by itself, gives countenance to the suggestion of a conditional sale. We refer to the provision that Hall should be liable "for all losses of said cattle arising from death, disease, escape, theft, or any cause whatever." Standing alone, this clause would be strong to show that Hall assumed the burden of ownership. It would be most unfair, however, to judge the contract by a single clause disconnected from the other stipulations contained in it. We must have regard to the entire agreement to determine the meaning of any part of it. It may well comport with a bailment of property that the bailee assumes the character of insurer of the thing bailed while it remains in his possession, and as to those disasters which he, by the exercise of care, could largely guard against, and which would be greatly promoted by his negligence. It is competent for a bailee so to enlarge his responsibility. Sturm v. Boker, 150 U. S. 312, 14 Sup. Ct. 99. Such a clause, read in connection with the other stipulations of the contract, may well be held a wise provision, imposing upon the bailee, in the care of the cattle while in his custody, the liability of an insurer, stimulating the exercise of care for them. Nor are we able to place upon the language employed the construction contended for, which would impose upon Hall accountability for depreciation in market value. We find no warrant for such suggestion. The provision is limited to the period that the cattle remain in Hall's care, not after the redelivery of them to the company, when and when only they were to be sold. The provision comprehends "losses of said cattle" only, not loss by depreciation in market value; and that loss must arise from "death, disease, escape, theft, or any cause whatever." "Noscitur a sociis." We cannot indulge a strained construction of the stipulation to qualify the clear intent of the agreement considered in its entirety. It may be, as suggested by counsel, that Hall could pay to the cattle company the stated sum per head, and so obtain title to the cattle. That would result, because he was entitled, as reward for his service, to the proceeds of the cattle in excess of the stated sum per head. He possibly had that option, but was under no obligation to pay. There was no debt to discharge. There can be no sale without an agreement, express or implied, to pay. An option is. not a sale, (Hunt v. Wyman, 100 Mass. 200,) and possession of property under an option to purchase, when that possession is delivered, for service to be rendered the thing bailed, will not transmute into a conditional sale that which is otherwise a bailment.

Nor are we able to discover in these contracts, read in the light of surrounding circumstances, any design to avoid the law of the

state of Missouri. contracts are these:

The statutes which are claimed to avoid the

"Sec. 2505. No sale of goods and chattels when possession is delivered to the vendee shall be subject to any condition whatever as against creditors of the vendee, or subsequent purchasers from such vendee in good faith, unless such condition shall be evidenced by writing, executed and acknowledged by the vendee and recorded as now provided in cases of mortgages of personal property." Laws 1877, p. 320, § 1, (f.)

"Sec. 2507. Conditional Sales, Void as to Creditors unless Recorded. In all cases where any personal property shall be sold to any person, to be paid for in whole or in part in installments or be leased, rented, hired, or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring, or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title of the same to remain in the vendor, lessor, renter, hirer, or deliverer of the same, until such sum or the value of such property or any part thereof shall have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers in good faith, and creditors, unless such condition shall be evidenced by writing executed, acknowledged and recorded, as provided in cases of mortgages of personal property." Laws 1877, p. 321, § 1.

"Sec. 2508. Duty of Vendor, before Taking Possession of Property. Whenever such property is so sold or leased, rented, hired, or delivered, it shall be unlawful for the vendor, lessor, renter, hirer, or deliverer, or his or their agent or servant, to take possession of said property without tendering or refunding to the purchaser, lessee, renter, or hirer thereof, or any party receiving the same, the sum or sums of money so paid, after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed twenty-five per cent. of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed." Laws 1877, p. 321, § 2.

It is to be observed that the statute is directed to sales, not to bailments, of property. It sought to prevent, as against purchasers and creditors, the sale, leasing, hiring, or delivery of goods on condition that the title should pass on payment of the price or value of the property. Peet v. Spencer, 90 Mo. 384, 2 S. W. 434. It was aimed at such transactions as were under consideration in the cases to which we are referred, (Hervey v. Locomotive Works, 93 U. S. 664; Heryford v. Davis, 102 U. S. 235; Sumner v. Cottey, 71 Mo. 121; Whitcomb v. Woodworth, 54 Vt. 544; Hine v. Roberts, 48 Conn. 267; Stadtfeld v. Huntsman, 92 Pa. St. 53; Greer v. Church, 13 Bush, 430; Murch v. Wright, 46 Ill. 487; Lucas v. Campbell, 88 Ill. 447,) and others of that class, where an undoubted sale of property was thinly disguised under the mask of a lease, and the purchase price cloaked under the guise of rent. In all these cases there was the absolute undertaking of the vendee to pay the price, and there was the manifest intention to vest the title in the purchaser upon payment. But here there is no suggestion in the writing that the title should ever pass to Hall; the cattle were to be returned by him, and sold by the cattle company. There was no obligation on his part to pay any sum as the price of the cattle, or for their use. He was merely to fatten the cattle, and receive for their pasturage, and the care bestowed upon them, the amount over and above a stated sum per head, if the cattle company should realize so much upon

their sale in the market. Without further enlarging upon the subject, we are satisfied that the agreement was a bailment, not a conditional sale, and is not within the condemnation of the stat ute.

With respect to the ruling upon evidence offered at the trial, and rejected by the court, we think the ruling correct. It is elementary that in the absence of fraud, accident, or mistake, parol evidence of prior negotiations should not be allowed to contradict the terms of a written agreement. The written agreement speaks conclusively the conclusion to which the parties to it have arrived, and all prior negotiations are merged in it. Willard v. Tayloe, 8 Wall. 557; Forsyth v. Kimball, 91 U. S. 291; Bast v. Bank, 101 U. S. 93, 96. Resort may be had to proof of the circumstances out of which the contract grew, and which surrounded its adoption, to ascertain its subject-matter, and the standpoint of the parties in relation to it, but not to vary the contract by addition or substitution. Mr. Greenleaf thus announces the rule:

"The writing, it is true, may be read by the light of surrounding circumstances, in order to understand the intent and meaning of the parties; but, . as they have constituted the writing to be the only outward and visible expression of their meaning, no other words are to be added to it, or substituted in its stead. The duty of the courts, in such cases, is to ascertain, not what the parties may have secretly intended, as contradistinguished from what their words express, but what is the meaning of the words they have used. It is merely a duty of interpretation (that is, to find out the true sense of the written words, as the parties used them) and of construction, (that is, when the true sense is ascertained, to subject the instrument, in its interpretation, to the established rules of law.) And, when the language of an instrument has a settled legal construction, parol evidence is not admissible to contradict that construction." Greenl. Ev. § 277.

But resort to surrounding circumstances is not allowed, for the purpose of adding a new and distinct undertaking, Maryland v. Railroad Co., 22 Wall. 105. The circumstances surrounding the making of a contract is one thing. The parol negotiations leading up to the written agreement is another and a different thing. Parol evidence may be received of the existence of an independent oral agreement, not inconsistent with the stipulations of the written contract, in respect to a matter to which the writing does not speak, but not to contradict the contract. The cases of Machine Co. v. Anderson, 23 Minn. 57, and Machine Co. v. Holcomb, 40 Iowa, 33, which are urged upon our attention, if in opposition to the rule stated, cannot be followed. The one case is rested upon the ground that the sale and delivery were absolute and complete before the written instrument, and that the subsequent lease was repugnant to the contract of absolute sale, and void for want of consideration. In the latter case it was held that the writing did not contain the whole contract. It is unnecessary to consider whether those cases can be upheld. We do not consider them relevant here, for the reason that the evidence offered does not bring the matter here within the cases cited. The offer here, and the evidence adduced to the court thereunder, was only to the effect that Hall, previous to the contracts, had negotiations with certain agents of the

cattle company to purchase the cattle on credit. There is, however, no suggestion that the company agreed to sell upon credit; and if we may rest upon the statement of the trial judge in his opinion, the evidence not being preserved in the bill of exceptions, the agent of the company refused to sell to Hall upon credit, or to take chattel mortgage security upon the cattle, but was willing to intrust them to Hall under a feeding contract, and upon the terms stated in the writing. The offer of evidence expressly states that none of the cattle were delivered into the possession of Hall before execution and delivery of the contract of September 6, 1884, and were delivered under and in pursuance of the contract. This would seem to conclude the contention, and demonstrates that the writing speaks the actual and entire contract.

The further offer to prove "that the declared purpose of said contract, at the time it was so made and delivered, was that the cattle company should retain the title to said cattle, and should sell the same, giving Hall the benefit of any increase in the value of the cattle by reason of the feeding, in the market, above $35 per head and twelve per cent. per annum interest," would throw no light upon the intention of the contracting parties, if it were admissible. The contract itself so speaks, giving the increase to Hall for his services as agister.

The judgment must be affirmed.

TRAVELERS' INS. CO. v. TOWNSHIP OF OSWEGO.

(Circuit Court of Appeals, Eighth Circuit.

No. 334.

December 4, 1893.)

1. CONSTITUTIONAL LAW-SPECIAL LEGISLATION-TOWNSHIPS.

The provision of the constitution of Kansas, that "in all cases where a general law can be made applicable no special law shall be enacted," (article 2, § 17,) does not invalidate a subsequent special law authorizing a township to refund and scale down its indebtedness. State v. Hitchcock, 1 Kan. 178, applied. 55 Fed. 361, reversed.

2. SAME-CORPORATIONS-TOWNSHIP.

The provision of the constitution of Kansas that the legislature shall pass no special act conferring corporate powers (article 12, § 1) does not apply to quasi corporations, such as townships. Beach v. Leahy, 11 Kan. 28, followed.

3. STATUTES TITLES OF ACTS-PROVISIONS GERMANE TO SUBJECT.

Under a constitutional provision that "no bill shall contain more than one subject, which shall be clearly expressed in its title," (Const. Kan. art. 2, § 16,) an act whose subject, so expressed, is the refunding of the indebtedness of a certain township, may contain provisions fixing the terms on which such indebtedness shall be refunded, naming persons authorized to refund it, authorizing the issuance of new bonds and coupons, and the levy of taxes to pay them, and enforcing the performance of the duties devolved upon the several agents selected, as such provisions are germane to the subject, naturally suggested by the title, and proper to the accomplishment of the purpose it discloses.

4. SAME-APPOINTMENT OF OFFICERS.

A constitutional provision that "all officers, whose election or appointment is not otherwise provided for, shall be chosen or appointed as may

be prescribed by law," (Const. Kan. art. 15, § 1,) gives to the legislature itself authority to make such appointments.

5. SAME-TOWNSHIP OFFICERS-WHO ARE.

Commissioners appointed by a special act to refund the bonded indebtedness of a township at not more than 30 per cent. of its face, and invest the sinking fund to be raised to pay the same, are mere financial agents, and not officers of the township, within the meaning of a constitutional provision for the election of such officers, nor are they charged with any judicial functions.

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The right to determine whether a township shall scale down its bonded indebtedness, and issue new bonds for the remainder, lies with the legislature, under the constitution of Kansas, and not with the people of the township.

7. SAME-TOWNSHIPS-REFUNDING DEBT.

The special acts of the Kansas legislature authorizing Oswego township, Labette county, to scale down and refund its bonded indebtedness, (Laws 1881, c. 170; Laws 1883, c. 157,) do not contravene any provisions of the state constitution, and are valid. 55 Fed. 361, reversed.

In Error to the Circuit Court of the United States for the District of Kansas.

At Law. Action by the Travelers' Insurance Company against the township of Oswego, Labette county, Kan., on interest coupons of bonds issued by defendant. Demurrer to the complaint sustained. 55 Fed. 361. Plaintiff brings error. Reversed.

Statement by SANBORN, Circuit Judge:

The Travelers' Insurance Company, the plaintiff in error, brought an action in the court below to recover upon certain interest coupons that had been detached from certain bonds issued by the township of Oswego, the defendant in error, to refund its bonded indebtedness. The complaint alleged that these bonds and coupons were issued in 1885 under the authority of an act of the legislature of the state of Kansas, entitled "An act to enable the township of Oswego, in the county of Labette, state of Kansas, to refund its indebtedness,” approved March 3, 1881, (Sess. Laws Kan. 1881, c. 170,) and an amendatory act passed in 1883, (Sess. Laws Kan. 1883, c. 157;) that these bonds had been duly registered under these acts; that the plaintiff was an innocent purchaser for value, before maturity, of these bonds and coupons, which were payable to bearer; and that the coupons were overdue. A demurrer to this complaint was sustained, and the action dismissed, on the ground that the acts of the legislature under which the bonds were issued were unconstitutional. The act of March 3, 1881, as amended, provided substantially as follows: Section 1. That the township of Oswego was authorized to issue funding. bonds to fund and cancel its existing bonded indebtedness.

Sec. 2. That the bonds to be issued should bear 6 per cent. interest, and that the principal and interest should be payable at a certain place and at certain times, respectively.

Sec. 3. That the county clerk of Labette county, Kan., should register the bonds, and that no bond should be of any validity unless registered.

Sec. 4. That no bond should be signed by the commissioners until the bonds in payment of which it was to be issued had been delivered to the county clerk to be canceled, and that the clerk should cancel and destroy the latter.

Sec. 5. That the bonds issued under the act should be registered in the office of the auditor of state, and that he should certify to the board of county commissioners, the county treasurer, and the county clerk of Labette county the amount necessary to be levied in each year to pay the coupons, and to create a sinking fund.

Sec. 6. That "it shall be the duty of the board of county commissioners of Labette county, Kansas, annually and at the time it makes the general levy for state, county and other taxes to levy on all taxable property in

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