A railroad company, in a bond issued by it, promised to pay the
principal at a specified time and place,
"with interest thereon at the rate of seven percent per annum,
payable annually on the 1st day of July in each year, as provided
in the mortgage hereinafter mentioned."
The bond also set forth that the interest was secured by a
mortgage lien on the net income of certain specified lines of road,
and that
"in case such net earnings shall not in any one year be
sufficient to enable the company to pay seven percent interest on
the outstanding bonds, then scrip may, at the option of the
company, be issued for the interest."
A certificate on the bond by the mortgage trustees stated that
the bond bore "seven percent interest per annum, payable yearly."
The mortgage stated that it was given to secure the payment of the
principal and interest of the bonds "according to the tenor
thereof." On July 1st, 1882 and 1853, the company neither paid the
interest in money nor declared its election to issue scrip for the
interest. Shortly after each of those days, it notified the
bondholders that it was not prepared to pay interest, as the
earnings of the railway were not sufficient. It took no action in
reference to the issue of scrip until October, 1883. In a suit by a
bondholder who refused to receive the scrip to recover the interest
in money,
held:
(1) If the company did not pay the interest in money by the
interest day, it was bound to exercise, by that day, its option to
pay it in scrip, and, if it did not, it became liable to the
bondholders to pay the interest in money.
(2) No demand by a bondholder was necessary, in order to entitle
him to the payment of the interest in money on the failure of the
company so to exercise such option.
This was an action to recover interest alleged to be due on
bonds issued by the plaintiff in error. Judgment for plaintiff, to
review which defendant sued out this writ of error. The case is
stated in the opinion of the court.
Page 123 U. S. 688
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is a writ of error to the Circuit Court of the United
States for the Southern district of New York, brought by the Texas
and Pacific Railway Company, a corporation organized and existing
under acts of the Congress of the United States, to review a
judgment entered against it by that court on the 17th of September,
1884, in favor of Henry S. Marlor, for the sum of $23,204.99. The
suit was commenced in a court of the State of New York in November,
1883, and was removed into the circuit court by the defendant. It
was tried by that court on filing a written waiver of a jury on an
agreed statement of facts and on the depositions of witnesses. The
material facts of the case as found by the circuit court are as
follows:
Prior to the 1st of July, 1883, the plaintiff became the owner
of 150 bonds issued by the defendant, and entitled to the interest
due thereon on the first days of July in the years 1882 and 1883,
according to the terms and conditions of the bonds. Each bond was
in the following form:
"
THE UNITED STATES OF AMERICA"
"
No. ___ $1,000"
"
The Texas and Pacific Railway Company"
"
Chartered by act of Congress"
"
Seven Percent Income and Land Grant Bond on the Eastern
Division"
"The Texas and Pacific Railway Company hereby acknowledges
itself to be indebted to _____, of _____, or assigns, in the sum of
one thousand dollars, lawful money of the United States of America,
which sum the said company promises to pay the said _____, or
assigns, at the office of the company in the City of New York on
the first day of January, A.D. (1915) one thousand nine hundred and
fifteen, with interest thereon at the rate of seven percent per
annum, payable annually on the first day of July in each year, as
provided in the mortgage hereinafter mentioned. "
Page 123 U. S. 689
"This bond is one of a series of bonds numbered consecutively
from one to eight thousand nine hundred and eight, of the
denomination of one thousand dollars each, of like tenor and date,
the payment whereof is secured by a first mortgage of even date
herewith, duly recorded, upon certain lands heretofore granted to
the Texas and Pacific Railway Company by the State of Texas or in
which said company is in any manner interested, being a first lien
or charge upon all those sections or fractional sections or square
miles of land acquired or to be acquired by said company in
constructing its lines of road east of Fort Worth under or by
virtue of the acts of incorporation of the Southern Pacific
Railroad Company, the Southern Transcontinental Railroad Company,
the Memphis, El Paso, and Pacific Railroad Company, or of the
several supplements and enactments relating thereto, or under any
of the special or general laws passed by the Legislature of the
State of Texas and applicable to said companies, or either of them,
or to the Texas and Pacific Railway Company, the total quantity of
land to be acquired in constructing said lines of railway under the
several grants being estimated at or about 7,600,000 acres. This
bond has also, as security for the interest, a mortgage lien upon
the net income of the said Texas and Pacific Railway Company,
derived from operating its lines of railway east of Fort Worth in
the State of Texas, after providing for the operating expenses, the
current repairs and reconstructions, and the interest upon the
first and second mortgage bonds secured upon said lines of railway,
the length of which, constructed and to be constructed, is
estimated to be 524 miles, and in case such net earnings shall not
in any one year be sufficient to enable the company to pay seven
percent interest on the outstanding bonds, then scrip may, at the
option of the company, be issued for the interest, such scrip to be
received at par and interest, the same as money, in payment for any
of the company's lands acquired as aforesaid in Texas, at the
ordinary schedule price, or it may be converted into capital stock
of the company, when presented in amounts of $100, or its multiple.
The holder of this bond is entitled to the benefit of the
additional security of the sinking fund provided
Page 123 U. S. 690
for in said mortgage, consisting of the net proceeds of the
sales of the lands aforesaid, which are to be applied from time to
time to the purchase of said bonds at their market value, not
exceeding par, or to their redemption, as provided in the mortgage
aforesaid. This bond will also be received by the company at par
and accrued interest, in payment or exchange for any of its lands
covered by the mortgage aforesaid, at the current cash price of the
same as fixed from time to time."
"In witness whereof, the said the Texas and Pacific Railway
Company has caused these presents to be duly executed, sealed with
its corporate seal, and attested by the proper signatures of its
president or vicepresident and secretary, this 15th day of May, A.
D. 1875."
"FRANK BOND,
VicePresident"
"Attest: C. E. SATTERLEE,
Secretary"
Upon each bond was a certificate signed by the trustees in the
mortgage mentioned in the bond, in the following form:
"
Certificate of Trustees"
"This bond is one of a series of bonds, each for the sum of one
thousand dollars, lawful money of the United States of America,
bearing seven percent interest per annum, payable yearly, said
bonds being numbered consecutively from number one to number eight
thousand nine hundred and eight. The said bonds are secured by a
first mortgage upon all the lands of the Texas and Pacific Railway
Company in the State of Texas, granted in aid of the construction
of its lines east of Fort Worth, and also upon the net income of
said lines of railway, after deducting current expenses,
reconstruction, and repairs, and the interest upon the first and
second mortgages on said lines of railway, and they are also
receivable, the same as money, in payment or exchange for such
lands, at the current price of the same as fixed from time to
time."
"W. T. WALTERS"
"GEORGE D. KRUMBHAAR"
"
Trustees"
Page 123 U. S. 691
The complaint alleged that the defendant did not exercise the
option given to it by the bonds to pay the plaintiff the interest
in scrip upon the 150 bonds, which became due and payable on July
1, 1882, or that which became due and payable on July 1, 1883, and
demanded judgment for the interest in money, with accrued interest
from those days respectively. There was no formal presentment by
the plaintiff of the bonds in suit for the payment of interest on
July 1, 1882, or on July 1, 1883, or at any other time. Shortly
after each of those days, the treasurer of the defendant, at the
defendant's office, notified the holders of the bonds that it was
not prepared to pay interest, as the earnings of the railway were
not sufficient, and no action was taken by it in reference to the
issue of scrip. Before the commencement of this suit, and induced
by the suggestion that suits were about to be brought to recover
the interest on the bonds, and on or about October 12, 1883, the
executive committee of the defendant's board of directors adopted a
resolution providing for the payment of the interest in question in
scrip. Notice of this action on the part of the defendant was given
to the plaintiff and to the bondholders generally by publication
before this suit was brought, and the defendant notified the
plaintiff of its willingness to deliver to him his scrip for the
interest in suit, and tendered it to him at the trial, but he
refused to receive it.
On the 29th of March, 1875, the defendant had outstanding 9,252
land grant bonds, secured by a first mortgage upon all the lands in
the State of Texas which it had acquired or might thereafter
acquire by virtue of its consolidation with the Southern Pacific
Railroad Company and the Southern Transcontinental Railway Company
or by virtue of its consolidation with or purchase of any other
railroad company in the State of Texas under the authority of the
Acts of Congress of March 3, 1871, and May 2, 1872; also certain
construction bonds, secured by a first mortgage upon its lines of
railway and their appurtenances east of Fort Worth in the State of
Texas. Those land grant bonds and construction bonds were fixed
obligations, with coupons for semiannual interest, and the
mortgages which secured them contained provisions for
foreclosure,
Page 123 U. S. 692
in case of default in the payment of such interest. On the 29th
of March, 1875, the road of the defendant was only partially
completed to Fort Worth, about 325 miles of it being then built and
in operation. The defendant had made default in paying the interest
on the bonds above mentioned. On that day, the stockholders met and
passed the following resolution:
"Resolved, that the board of directors shall be, and they are
hereby, requested and fully authorized and empowered to provide for
and to issue eightynine hundred and eight (8,908) income and land
grant bonds, each for the sum of one thousand dollars, bearing
seven percent interest; the interest and the principal of said
bonds to be payable in United States currency and said bonds to
mature in forty years from their date, and to secure the payment of
the interest and the principal of said bonds by a first mortgage
upon all the lands heretofore granted to this company or in which
this company in said state is in any manner interested, being a
first lien or charge upon all those sections or parts of sections
or square miles of land acquired by the Texas and Pacific Railroad
Company or to be acquired by said company in constructing its lines
of road east of Fort Worth under or by virtue of the acts of
incorporation of the Southern Pacific Railroad Company, the
Southern Transcontinental Railway Company, the Memphis, El Paso,
and Pacific Railroad Company, or of the several supplements and
amendments relating thereto, or under any of the special or general
laws passed by the Legislature of the State of Texas and applicable
to said companies, or either of them, or to the Texas and Pacific
Railway Company, the total quantity of land so to be acquired, in
constructing said lines of railway, being estimated at about
7,600,000 acres, and said mortgage or deed of trust shall also
include the net income of the company from the operating of its
lines east of Fort Worth, after providing for the operating
expenses, the current repairs and reconstructions, and the interest
on the first and second mortgages hereinbefore provided for, and
there shall be included in said mortgage or deed of trust a
provision for a sinking fund out of the net proceeds of sales of
land, and for the receiving of said bonds in payment for purchases
of lands
Page 123 U. S. 693
covered by the mortgage. The bonds thus provided for shall be
exchangeable for outstanding land grant bonds, and used in purchase
of material and supplies and for construction work, or may be
applied towards the payment of any of the company's indebtedness or
obligations."
In pursuance of the authority thus conferred, the board of
directors of the defendant issued 8,857 income and land grant bonds
in the form of the one above set forth and executed a mortgage to
secure them dated May 15, 1875, and a supplemental mortgage dated
March 23, 1876, each to Walters and Krumbhaar as trustees. The
mortgage of May 15, 1875, recites the foregoing resolution, and
sets out a form of the bond and of the certificate of the trustees,
and then states that, "in order to secure the payment of the
principal and interest" of the 8,908 bonds, "according to the tenor
thereof," the company conveys to the trustees
"all the lands heretofore granted to this company, or in which
this company in the State of Texas is in any manner interested,
being all those sections or parts of sections or square miles of
land acquired by the Texas and Pacific Railway Company or to be
acquired by said company in constructing its lines of road east of
Fort Worth, in the State of Texas, under or by virtue of the acts
of incorporation of the Southern Pacific Railroad Company, the
Southern Transcontinental Railroad Company, the Memphis, El Paso,
and Pacific Railroad Company, or of the several supplements and
amendments relating thereto, or under any of the special or general
laws passed by the Legislature of the State of Texas and applicable
to said companies or either of them, or to the Texas and Pacific
Railway Company, the total quantity of lands so to be acquired in
constructing said lines of railway being estimated at about
7,600,000 acres of land; also all the net income of the lines of
rail way and appurtenances of the said the Texas and Pacific
Railway Company east of Forth Worth, in the State of Texas, being
five hundred and twentyfour miles of railroad nearly completed,
after deducting the expenses of operating and maintaining the same,
and the interest and other resources due by reason of previous
circumstances thereon, the same being the Texas and
Page 123 U. S. 694
Pacific Railway Company's lines of railway, constructed and to
be constructed, from the state line between Louisiana and Texas
westward through Marshall and Dallas to Fort Worth, in the State of
Texas, and from Texarkana, on the state line between Texas and
Arkansas, to a point of junction via Clarksville, Paris, Bonham,
and Sherman, with the line aforesaid at or near Fort Worth, and
from Marshall aforesaid, through the Town of Jefferson to a point
of junction at or near Texarkana, with the said line from Texarkana
to Fort Worth, together with all the depots, depot grounds,
locomotives, rolling stock of every kind, and every appurtenance of
every kind, real or personal, requisite or convenient for the use
and operation of said lines of railway, including also all the net
income arising from the leasehold interest of said company in the
line of railroad of the Vicksburg, Shreveport, and Texas Railroad
Company extending from Shreveport, in the State of Louisiana, to a
connection with the line of railroad of the Texas and Pacific
Railway Company at the state line between Louisiana and Texas."
The mortgage further provided that no bonds should be issued
until at least $2,254,000 of the outstanding land grant bonds
theretofore issued should be deposited with the trustees and
registered in their names, to be held as additional security for
the bonds to be issued under the mortgage, until all the land grant
bonds should have been so deposited or retired by the company and
the mortgage under which they were issued satisfied of record, the
holders of any outstanding land grant bonds to have the right,
until January 1, 1876, to exchange their bonds, with accrued
interest, at par, for the bonds issued under the new mortgage, the
bonds so received in exchange to be registered and held by the
trustees as additional security, as before provided, and, after
January 1, 1876, the remainder of the bonds under the new mortgage
to be disposed of as the board of directors might determine. The
mortgage also provided for giving to the trustees lists and maps of
the lands mortgaged, with minimum prices of sale, to be approved by
both parties, and it contained sundry provisions for the sale of
the lands, the purchase money to be received by the trustees,
Page 123 U. S. 695
subject to the right of purchasers to pay for the lands with the
bonds issued under the mortgage. Out of the proceeds of the sales
of the lands, the expenses of the land department and compensation
for the services and expenses of the trustees were to be paid, and
the balance was to be appropriated to a sinking fund to redeem the
bonds. Provision was made for applying the sinking fund yearly to
purchasing the bonds at or less than par, or if that could not be
done, to redeeming bonds designated by lot; also for the sale of
the lands to pay the principal of the bonds and for the termination
of the trust on the payment in full of the bonds and interest. The
supplemental mortgage of the 23d of March, 1876, conveyed to the
trustees, subject to the trust created by the mortgage of May 15,
1875,
"the lines of railway and appurtenances of the said Texas and
Pacific Railway Company east of Fort Worth, in the State of Texas,
being five hundred and twentyfour miles of railroad nearly
completed, after deducting the expenses of operating and
maintaining the same, and the interest and other resources due by
reason of previous circumstances thereon, the same being the Texas
and Pacific Railway Company's lines of railway, constructed and to
be constructed from the state line between Louisiana and Texas
westward through Marshall and Dallas to Fort Worth, in the State of
Texas, and from Texarkana, on the state line between Texas and
Arkansas, to a point of junction, via Clarksville, Paris, Bonham,
and Sherman, with the line aforesaid at or near Fort Worth, and
from Marshall aforesaid, through the Town of Jefferson, to a point
of junction at or near Texarkana with the said line from Texarkana
to Fort Worth, together with all the depots, depot grounds,
locomotives, rolling stock of every kind, and every appurtenance of
every kind, real or personal, requisite or convenient for the use
and operation of said lines of railway, including also all the net
income arising from the leasehold interest of said company in the
line of railroad of the Vicksburg, Shreveport and Texas Railroad
Company extending from Shreveport, in the State of Louisiana, to a
connection with the line of railroad of the Texas and Pacific
Railway Company at the state line between Louisiana and Texas,
Page 123 U. S. 696
under and subject, nevertheless, to the lien and charge of prior
encumbrances thereon, and subject to all the trusts, limitations,
conditions, and provisions of every kind mentioned and set forth in
the deed of trust dated May 15, 1875, whereto this instrument of
writing is supplementary."
Subsequently to January 1, 1876, as of which date the first
installment of the income and land grant bonds was issued, and in
the years or interest periods ending respectively on the first days
of July, 1877, 1878, and 1879, the net earnings of the company, as
defined in the bonds and mortgage, were insufficient to enable it
to pay the interest on the bonds outstanding at those dates, and,
throughout those years or interest periods, no interest was paid
upon the bonds nor any scrip issued for the interest or any part of
it. On the 16th of February, 1880, in pursuance of a resolution of
the board of directors, the defendant issued scrip for the interest
accumulated during the entire period included between the 1st of
January, 1876, and the 1st of July, 1879. The net earnings of the
road having been insufficient to enable the defendant to pay the
interest on the bonds for the years ending July 1, 1880, and July
1, 1881, it issued scrip for the interest for those years
respectively. For the year ending July 1, 1882, there was a deficit
of $195,076.17 in the earnings of the road, and for the year ending
July 1, 1883, there were surplus earnings of $131,867.90; thus
showing a net deficit, for the operations of those two years, of
$63,208.27. The fact that the net earnings of those two years were
insufficient to enable the defendant to pay the interest on the
income and land grant bonds as provided therein was promptly made
known and declared by it to its bondholders, and the plaintiff had
due notice thereof.
The income and land grant bonds are registered obligations.
Interest on them is payable only to registered holders or their
assignees by duly executed and acknowledged or authenticated order
or assignment, at the office of the defendant, and upon the
delivery by such holders, or such assignees, of receipts for the
interest, or, in case scrip is issued, of receipts for the scrip.
By uniform practice, from the first issue of scrip, the bonds, or
such orders or assignments, are presented by the payee or
Page 123 U. S. 697
registered holder or such assignee at the office of the
defendant for scrip. When scrip is delivered, no endorsement is
made on the bond, but the receipt or voucher for the scrip is
signed by the person receiving it, and the defendant cannot know to
whom to issue or deliver scrip, or who is entitled thereto, or who
will receive the same until the bonds or such assignments or orders
are presented at its office and scrip demanded, or unless the
registered holder, properly identified, presents himself at the
office of the defendant and demands the issue of the scrip. The
plaintiff, in respect of the interest sued for in this suit, never
presented the bonds and demanded the issue of the scrip for the
years 1882 and 1883.
On the foregoing facts, the circuit court found as conclusions
of law that the defendant failed to exercise its option to pay the
plaintiff the interest in scrip due on the first of July, 1882, and
that due on the first of July, 1883, on the 150 bonds, and that the
plaintiff was entitled to judgment for the two sums of $10,500
each, with interest on one from the 1st of July, 1882, and interest
on the other from the 1st of July, 1883.
The opinion of the circuit court, which accompanies the record
and is reported in 19 F. 867, proceeded upon the view that there
was nothing in the language of the mortgage which controlled or
qualified the absolute promise in the bond to pay interest in money
or in scrip; that the bond contained a promise to pay interest
annually; that there was nothing in it to show that the owner was
not to have his interest, or scrip instead, at the election of the
defendant, if the net earnings of the railway were not sufficient
to pay the interest; that the plaintiff was entitled to his money,
or the scrip as its substitute, on the day on which, by the terms
of the bond, the defendant was to pay the interest or exercise the
alternative; that there was no reservation, in terms or by
implication, of a right in the defendant to exercise the option
after the day of payment; that that day having elapsed without an
election by the defendant, the bondholder was entitled to be paid
his interest in money, and that it was not incumbent on the
plaintiff to present the bonds for the payment of
Page 123 U. S. 698
interest on the day it fell due or to then demand the payment of
interest as a prerequisite to his right of action to recover the
interest money.
It is contended for the defendant that the bond in question is
an income bond in the sense that the interest on it is not payable
in money on the first day of July in each year unless net earnings,
as defined in the bond and the mortgage, have been made; that if
sufficient net earnings, as thus defined, have not been acquired
during the year, then unless the company exercises its option to
issue scrip, the interest accumulates until it is earned or until
it is paid out of the sinking fund created by the sale of the
mortgaged lands, or until the bond, with its accrued interest,
becomes due; that the effect of a failure to exercise the option on
the interest day is not to create a present fixed obligation to pay
the interest in money; that in any event the option to pay in scrip
need not be exercised on or by the interest day, but it is
sufficient if the scrip is ready for the bondholder when he demands
it, and that the effect of any default to pay in scrip is not to
make the defendant liable for the full amount of the interest, but
only for the value of the scrip at the time of default.
We are of opinion, however, that the circuit court was correct
in its construction of the contract between the parties. Much
stress is laid by the defendant upon the fact that the bond, on its
face, is called a "seven percent income and land grant bond," and
from this the argument is deduced that the interest is payable only
out of income, but the expression, "income and land grant bond" is
sufficiently justified and satisfied by the fact that the mortgage
states that the principal and interest of the bonds are secured by
a mortgage upon the land acquired or to be acquired by the company
under the statute specified in the mortgage, and upon the net
income of the lines of its railway east of Fort Worth. The mortgage
states that it is given to secure 8,908 income and land grant
bonds, each for $1,000, bearing seven percent interest, the
interest and the principal of the bonds to be payable in United
States currency, as distinguished from two other classes of bonds
authorized at the same time which
Page 123 U. S. 699
were to be payable in gold coin. The resolution of the
stockholders authorizing the issuing of the bonds was to the same
effect. The option to pay the interest in scrip was not expressed
in the resolution of the stockholders, but the mortgage states that
the principal and interest of the bonds is to be paid "according to
the tenor thereof." The bond contains a promise to pay the $1,000
on the first of January, 1915, in lawful money of the United
States,
"with interest thereon at the rate of seven percent per annum,
payable annually on the first day of July in each year, as provided
in the mortgage hereinafter mentioned."
The words "as provided in the mortgage hereinafter mentioned"
refer to the payment of the principal as well as the interest.
There is thus far an absolute obligation and promise to pay the
interest on the first day of July in each year. How is that promise
qualified subsequently in the bond? Only by the provision that in
case the net earnings derived from operating the lines of railway
east of Fort Worth shall not in any one year be sufficient to
enable the company to pay seven percent interest on the outstanding
bonds, then scrip may, at the option of the company, be issued for
the interest. The only alternative to the payment of the interest
in money on the day named is that if the net earnings in the year
shall not be sufficient to enable the company to pay the interest
on the outstanding bonds, it may elect to issue scrip for the
interest; but the scrip is to be issued, if issued, as and for the
unpaid interest, and it is plain that the option of the company to
issue the scrip must be exercised at the time when, but for the
insufficiency of the net earnings, it would be required to pay the
interest in money. If the option be thus exercised, reasonable time
may be allowed to prepare the scrip and issue and deliver it, but
as the scrip is to be received at par and interest, the same as
money, in payment for the lands or for conversion into the capital
stock of the company, it is necessarily to draw interest from the
day on which the interest which it takes the place of was
payable.
In the absence of an exercise of the option on the day the
interest was due to pay it in scrip, the bondholder had an
Page 123 U. S. 700
immediate right of action for the interest money. The security
given by the mortgage upon the lands and upon the net income is
entirely separate and apart from the obligation of the company to
pay the interest in money or in scrip. This last provision is one
for the benefit of the company, to enable it to retain in its
treasury the net earnings derived from operating its lines east of
Fort Worth, if such earnings do not amount in the year to enough to
enable it to pay the full interest on the outstanding bonds; but in
such case it must exercise its option, by the day the interest
falls due, to give to its bondholders, for such interest, scrip for
the full amount thereof. The contract cannot be construed so as to
make it possible for the company to retain all its nets earnings,
however little, under seven percent on the amount of the
outstanding bonds, and yet withhold from the bondholders the scrip,
as the representative of the full interest promised to be paid. We
do not, however, mean to suggest that the company may not pay the
net earnings in money for part of the interest, and pay the rest in
scrip.
By the mortgage, all the net income from the lines east of Forth
Worth was pledged to secure the payment of the principal and
interest of the bonds "according to the tenor thereof," and the
bond states that it is secured by a mortgage lien upon such net
income "as security for the interest." The fact that the bond also
states on its face that it will be received by the company "at par
and accrued interest" in payment or exchange for any lands covered
by the mortgage serves to confirm the construction above given. So
also the certificate of the trustees on each bond states that the
bonds bear seven percent interest per annum, payable yearly.
It is contended for the defendant that it cannot ascertain by
the interest day whether the net earnings for the year are
sufficient to pay the interest in money, and that hence it cannot
exercise its option, by the interest day, to pay the interest in
scrip. It is a sufficient answer to this position to say that the
contract it has made is that it will exercise the option by that
day. Furthermore, it is found that the fact that the net earnings
of the two years ending July 1, 1882, and July 1,
Page 123 U. S. 701
1883, were insufficient to enable the defendant to pay the
interest was promptly made known by it to the bondholders, and it
is not found that it could not have sufficiently ascertained such
fact by the interest day to enable it to exercise the reserved
option.
It is urged for the defendant that because it did not pay
interest or issue scrip therefor for the interest periods ending
July 1, 1877, 1878, and 1879, but issued scrip in February, 1880,
for the interest accumulated for the period between January 1,
1876, and July 1, 1879, a practical construction was put by the
bondholders upon the contract which cannot be regarded as merely a
forbearance or a waiver for the time being of their rights under
the contract. But it is also found as a fact by the circuit court
that, the net earnings of the road having been insufficient to
enable the company to pay the interest on the bonds for the years
ending July 1, 1880, and July 1, 1881, it issued scrip for the
interest for those years respectively. We see nothing in all these
facts which amounts to a waiver which can affect or prejudice the
right asserted by the present plaintiff in this suit.
We are also of opinion that no demand by the plaintiff was
necessary to entitle him to the payment of the interest in money,
on the failure of the defendant to exercise its option, on the day
the interest fell due, to issue scrip therefor. It is stated in the
findings of the circuit court that, shortly after the first of
July, 1882, and shortly after the first of July, 1883, the
treasurer of the defendant, at its office, notified the holders of
its bonds that it was not prepared to pay the interest, as the
earnings of the railway were not sufficient, and no action was
taken by it in reference to the issue of scrip. This shows that it
did not on the proper days elect to issue scrip. The bond states
that the scrip, if issued, is to be issued "for the interest" --
that is, in place of the interest -- and under the terms of the
bond, the company was bound to pay the interest on the day it was
due or else to issue the scrip on the failure of a sufficiency of
net earnings to pay the full interest. There was therefore no
obligation on the part of the bondholder to demand his interest in
money in order
Page 123 U. S. 702
to perfect his right to recover it, in the absence of the
exercise of an option by the company, on the day the interest fell
due, to pay it in scrip. He had no right, by the terms of the
contract, to demand the scrip. It was for the company to announce
its election to pay in scrip, or, as it did, take no action in
reference to the issue of scrip. In the absence of an election by
the company, on the day the interest fell due, to issue the scrip,
the right of action of the plaintiff immediately came into
existence, without any demand on his part, to recover the full
amount of the interest mentioned in the bond.
The cases cited by the defendant on the question of damages do
not apply to an alternative contract like that in the present case.
It falls within those cases in which, if the contract be that the
promisor shall do one of two things by a certain day, at his
election, he cannot exercise his election after the day has passed.
This is familiar law, and needs no citation of authorities.
The judgment of the circuit court is
Affirmed.