1. An order made by the court below, pursuant to the consent of
parties, is binding upon them here.
2. A company who, under a contract with a city, was constructing
waterworks, executed a mortgage on them, to secure certain bonds
and the coupons thereto attached, which stipulates that if the
company shall fail, for the space of ninety days, to pay the
coupons when they shall become due, provided such failure is not
caused by the city under the contract, all of the bonds shall
become due, and the lien of the mortgage may be enforced for the
whole debt. Coupons remained due and unpaid for the specified
period.
Held that the bill need not negative the failure
of the city, but that such failure, if it existed, must be set up
as matter of defense.
The facts are stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
The Little Rock Waterworks Company, a corporation under the laws
of the State of Arkansas, undertook to construct a system of
waterworks for the use of the City of Little Rock and the citizens
of that city under an ordinance passed by the city authorities.
In order to raise the money necessary to do this work, the
company issued its bonds to the amount of $80,000, the payment of
which was secured by a mortgage on its entire works and property to
Barret and Alexander, as trustees, who, on failure of payment of
the semiannual interest coupons, brought in the state court this
foreclosure suit. In its progress, it was removed into the circuit
court of the United states, where a receiver was appointed to take
charge of the property pending the litigation. The court rendered a
final decree ordering a sale to satisfy the full amount of the
bonds and coupons secured by the mortgage. This appeal was taken by
the company.
Two errors are assigned:
1. The appointment of a receiver.
Page 103 U. S. 517
2. The rendering of a decree for the amount of the bonds which
by their terms are not yet due.
As regards the first assignment of error, it is sufficient to
say that the record shows that the appointment of receiver was made
by consent of parties, the attorneys of appellant being in court at
the time. However other parties may complain of this act, and there
were other parties, none of whom have appealed, the present
appellants are bound by their consent in this court as well as in
the court below, and cannot be heard to object to what they then
agreed to.
As to the second error assigned, the counsel for appellant
says,
"The court will search in vain through the bill, two amended
bills, and supplemental bill to find any reason why the appellees
should have a decree for the payment of bonds which will not be due
for many years."
Yet in the very body of the original bill is a long extract from
the deed of trust on which the suit is founded, a part of which is
in this language:
"It is further agreed that in the event said party of the first
part [the waterworks company] shall fail for the space of ninety
days to pay the semiannual interest due on said bonds as and when
the same may become due, or any of said annual installments of the
sinking fund as and when the same may become due, provided that
such failure is not caused by the said City of Little Rock under
the contract aforesaid, after presentation and demand of the
payment of said coupons or after the demand of any installment of
said sinking fund, then and in that event all of said bonds shall
become due and payable, and the lien hereby created may be enforced
for the whole debt."
The bill shows that one set of coupons was due and unpaid over
ninety days when this suit was begun, that others fell due during
the litigation, and that the company was insolvent and the works
going to ruin. A copy of the deed of trust is made a part of the
bill by reference and is attached to it as an exhibit.
It is said, however, that it does not appear by any allegation
of the bill that the failure to pay was not by reason of the fault
of the City of Little Rock mentioned in the mortgage. It seems
probable that the fault of the city, which might mitigate the
failure of the company to pay its interest, so far as to
prevent
Page 103 U. S. 518
the whole sum falling due for that failure, had reference to the
money which the city had agreed to pay for the use of water in the
public buildings and certain hydrants which were to be for public
use.
If there was any such fault in the city, it was matter of
defense to be made out by the defendant, for the innocent purchaser
of the bonds could not be supposed to know whether the city had
paid as it should or not. No such case is made by the appellant. On
the contrary, it appears that the appellant did not construct the
works, but let out the job to Dennis Long and Samuel A. Miller;
that by reason of their failure to do the work according to the
contract of the company with the city, the latter refused to accept
it, and the company sued Long and Miller for that cause and
attached the work they had constructed, which suit was pending when
the foreclosure suit began, the record of the former being made a
part of the latter. It was obviously the fault of the appellant,
and not the city, which caused the default in paying the
coupons.
These are all the errors assigned, and they are not sustained by
the record.
Decree affirmed.