Findings of fact made by the Circuit Court which were not
objected to and which accompanied the questions certified by the
circuit court of appeals held
in this case to be
sufficient to justify entering judgment thereon after this Court
had responded to the questions certified.
The issuing of bonds in payment of a subscription to railroad
stock by an officer charged with the duty of ascertaining whether
conditions precedent had been fulfilled raises a presumption of
their fulfillment and of the proper issuing of the bonds upon which
a lawful holder of the bonds is entitled to rely until it is
overcome by evidence to the contrary. In this case, nothing in the
findings overcomes such presumption.
In construing written instruments, the entire instrument will be
considered, and not single words or phrases, and the intent reached
even if technical meanings be disregarded, and so "on condition"
interpreted as meaning a covenant or agreement.
Although county bonds may have been authorized "upon condition"
that the railroad company assisted expend the proceeds as
specified, if the condition is in fact merely a covenant or
agreement, as in this case, the subsequent failure of the
corporation to perform cannot be pleaded by the county against a
holder for value.
In the absence of clearest proof, coupon bonds intended for the
market will not be presumed to have been issued under such
conditions as would destroy their salability.
157 F. 33 affirmed.
The facts are stated in the opinion.
Page 211 U. S. 583
MR. JUSTICE MOODY delivered the opinion of the Court.
The record and proceedings in this cause are in this Court by
virtue of a writ of certiorari issued to the Circuit Court of
Appeals for the Sixth Circuit. The action was brought in the
circuit court of the United States by Quinlan against Green County
on certain bonds and coupons attached thereto, purporting to have
been issued by Green County. The jurisdiction was based upon
diversity of citizenship.
The petition alleged that the plaintiff was "the holder and
owner" of the bonds named; that the bonds and coupons were duly
executed and issued, were due and unpaid, and prayed judgment for
their face value with interest.
The defendant filed a plea in abatement to the jurisdiction,
alleging in substance that the plaintiff was not the real holder
and owner of the bonds, and that the jurisdiction of the court was
invoked fraudulently. Certain allegations contained in this plea
were, on motion, stricken therefrom, and no exception was taken to
the order. A reply to the plea was filed denying its allegations.
Thereupon it was agreed that the issues of law and fact should be
tried by the court without a jury, and that the plea should be
deemed a part of the answer, which was that day filed. In addition
to the facts alleged in the plea, the answer set up in defense (1)
a denial of all the allegations of the petition; (2) that there was
no consideration for the bonds; (3) that they were obtained by
fraud; (4) that recovery upon some of the coupons was barred by the
statute of limitations; (5) that the bonds were issued in payment
of a subscription to the stock of the Cumberland & Ohio
Railroad upon two conditions -- namely, that the railroad should be
constructed in a certain designated manner and that the county
first should be exonerated from a prior subscription to the bonds
of another railroad company, neither of which conditions had been
performed. The plaintiff filed a reply, denying the allegations of
the answer. There were further pleadings, which are unimportant
here. After trial, the court rendered the following judgment:
Page 211 U. S. 584
"This action by a stipulation in writing, having been heretofore
submitted to the judgment of the court without the intervention of
a jury, and, the court having heard the evidence and the arguments
of counsel, and being now sufficiently advised, makes part of this
judgment the following:"
" Finding of Fact"
"1. The court finds that the plaintiff is a citizen of the State
of New York, and was so when this action was instituted on the
March 28, 1899, and that the plaintiff was then the bona
holder for value of the bonds and coupons sued on, and
fully entitled to sue the defendant thereon in this Court."
"2. That the Cumberland & Ohio Railroad Company was a
corporation organized and existing under the laws of the State of
Kentucky, with power to receive a subscription to its capital stock
from the defendant, Green County, and said county was authorized,
conformably to law, to make a subscription to said capital stock,
and to pay for the same in the bonds of said county."
"3. That, on June 17, 1869, there was, as appears from the
records thereof, presented to the Green County Court, by the
commissioners of said railroad company, the following request:"
" We, the undersigned, commissioners of the Cumberland &
Ohio Railroad Company, hereby request that the County Court of
Green County submit to a vote of the qualified voters of said
county the question: 'Whether said court shall subscribe, for and
on behalf of said county, and in pursuance of the provisions of the
charter of said railroad company, $250,000 to the capital stock of
said company, payable in the bonds of said county, having twenty
years to run and bearing six percent interest from date, upon the
condition that said company shall locate and construct said
railroad through Green County and within one mile of the Town of
Greensburg in said county, and shall expend the amount so
subscribed within the limits of Green County, and also upon the
further conditions that said bonds shall not be issued or said
county pay any part of either principal or interest
Page 211 U. S. 585
on said amount subscribed as aforesaid until said County of
Green shall be fully and completely exonerated from the payment of
the capital stock subscribed for by the County Court of said
county, for and on behalf of said county, to the Elizabethtown
& Tennessee Railroad Company.'"
"4. That on the same day, namely, on June 17th, 1869, the County
Judge of Green County, acting alone and as the County Court,
entered an order in said court in the following language:"
" Present: Thos. R. Barnett, Judge."
" Whereas the Commissioners of the Cumberland & Ohio
Railroad Company, by virtue of the authority delegated to them by
the charter of said company, have requested the County Court of
Green County to order an election in the said County of Green, and
to submit to the qualified voters of said county the question
whether said County Court shall subscribe, for and on behalf of
said county, two hundred and fifty thousand dollars to the capital
stock of the Cumberland & Ohio Railroad Company, and payable in
the bonds of said county, having twenty years to run and bearing
six percent interest from date, and upon condition that said
company shall locate and construct said railroad through the said
County of Green, and within one mile of the Town of Greensburg, in
said county, and shall expend the amount so subscribed within the
limits of Green County, and also upon the further condition that
said bonds shall not be issued or said county pay any part of the
principal or interest on said amount subscribed to said Cumberland
& Ohio Railroad Company, until said County of Green is fully
and completely exonerated from the payment of the capital stock
voted by said county, and authorized to be subscribed by said Green
County Court to the Elizabethtown & Tennessee Railroad, or any
part of the interest thereon. It is therefore ordered by the court
that an election by the qualified voters of Green County at the
voting places in said county, be held and conducted by the several
officers as prescribed by law for holding elections, on the
Page 211 U. S. 586
day of July, 1869, to vote on the question as to whether or not
the said County Court shall, for and on behalf of said county,
subscribe $250,000 to the capital stock of the said Cumberland
& Ohio Railroad, conditioned and to be paid, as above
"5. That, at the election held pursuant to said order, there
were cast in favor of said proposition and subscription a majority
of the votes of the qualified voters of said county, and this fact,
upon being duly ascertained, was certified by the proper officers,
as required by law."
"6. That on the third day of June, 1870, the County Judge of
said county, acting alone and as the county court of said county,
entered an order in said court as follows:"
" Present: Thomas R. Barnett, Judge."
" Whereas, in pursuance of an order of this court made on the
17th day of June, 1869, an election was held in the said County of
Green, on the third day of July, 1869 at the several precincts of
said county, and it appearing that a majority of the qualified
voters at said election decided that the County of Green should
subscribe for $250,000 of the capital stock of the Cumberland &
Ohio Railroad Company; now, it further appearing that said election
was held in conformity with the law, and in conformity with the
provisions of the charter of said company, now therefore I, Thomas
R. Barnett, the Presiding Judge of the Green County Court, by
virtue of the authority in me vested by law, and to carry out the
wishes of said voters, do hereby subscribe for $250,000 of the
capital stock of said Cumberland & Ohio Railroad Company, for
and on behalf of said County of Green, which subscription is to be
paid in the bonds of said county as prescribed in said order of
submission, and this subscription is made with the conditions set
out in the order of this court, ordering said election, and now of
record in the office of this county."
"7. That on the 12th day of October, 1871, the said county judge
of said county, acting alone and as the county court of
Page 211 U. S. 587
said county, entered an order in said court in the following
" Present: Thomas R. Barnett, Judge."
" On motion of E. H. Hobson, director of the Cumberland &
Ohio Railroad, it is ordered that Z. F. Smith, president of the
Cumberland & Ohio Railroad, be, and he is hereby, authorized to
have printed for the County of Green bonds to the amount of
$250,000, the amount of the subscription of Green County to the
said railroad, in the following denominations, to-wit, the same to
be conditioned as specified in the order submitting the vote of the
125 bonds at $1,000 . . . . . $125,000
200 bonds at 500 . . . . . 100,000
250 bonds at 100 . . . . . 25,000
"8. That pursuant to all that was done, as aforesaid, the
defendant, Green County, issued and delivered to the said
Cumberland & Ohio Railroad Company $250,000 of its bonds of the
description aforesaid, except that the said conditions were not
stated therein, in payment of said subscriptions to said capital
stock, and thereupon there was delivered to said county, in payment
thereof, and said county received, and has ever since held and
owned, the certificates of the said railroad company for the 2,500
shares of $100 each of its capital stock so paid for by said
"9. That the $47,509 of bonds and coupons sued on in this action
were part of the bonds thus issued and delivered to said railroad
company in payment for said stock."
"10. That, while the proposed line of said railroad was located
through said county from its northern line to its southern line,
and within one mile of Greensburg, yet that only about five miles
of said railroad has ever been constructed or attempted to be
constructed in said county, the part thus constructed extending
from the northernmost line of said county
Page 211 U. S. 588
to the Town of Greensburg, the county seat; that town is located
about fifteen miles from the southernmost line of the county, and
about as distant from any other line of the county except the
"11. That only $150,000 of the bonds thus issued, or the
proceeds thereof, were expended within the limits of Green County.
No other part of said bonds was expended in said county."
"12. That, with said $150,000 of said bonds, the grading,
bridging, and tunneling on the track of said railroad was done and
paid for over the five miles aforesaid, but no further, and when
this was done, the work on the railroad was suspended for some
years. Afterwards, the rails and ties and superstructure generally
were put upon the track theretofore graded, and the railway was
completed from the northernmost line of the county to Greensburg,
under the terms of its lease, by the Louisville & Nashville
Railroad Company at its own expense, and not with any of the bonds
issued as aforesaid by the defendant."
"13. That, on the 15th day of August, 1872, at a called term of
the Green County Court, over which Thomas R. Barnett, County Judge,
presided, and no justice of the peace being present, the following
order was entered by said court:"
" Present: Thos. R. Barnett, Judge."
" Application was this day made to the Presiding Judge of the
County Court of Green County, by the president and board of
directors of the Cumberland & Ohio Railroad Company to issue
the balance of the bonds of said county to the amount of the
subscriptions of said County of Green to said Cumberland & Ohio
Railroad Company, and, the court being sufficiently advised, it is
ordered by the court that the balance of said bonds be and they are
hereby ordered to be issued, the same to be signed by the judge of
said County Court of Green County, and countersigned by the clerk
of said court, as required by the charter of said company."
"14. That, except as to the number of the bonds and the
Page 211 U. S. 589
amount agreed to be paid therein, the bonds sued on were each of
the following, namely:"
"United States of America"
" County of Green, State of Kentucky
" For the Cumberland & Ohio Railroad."
" Twenty years after date, the County of Green, in the State of
Kentucky, will pay to the holder of this bond the sum of five
hundred dollars with interest thereon at the rate of six percent
per annum, payable semiannually upon presentation of the proper
coupons hereto attached, the principal and interest being payable
at the Bank of America, in the City of New York."
" In testimony whereof, the Judge of said County of Green has
hereunto set his hands and affixed the seal of said county on the
first day of April, A.D. 1871, and caused the same to be attested
by the county clerk, who has also signed the coupons hereto
" [Green County seal.]"
"T. R. Barnett, Judge
"D. T. Towles, Clerk.
"As appears on the face of each of said bonds, there was no
recital therein of any of the facts herein found to be true."
"15. That the plaintiff knew, when he purchased the bonds sued
on, that the railroad had not been constructed in Green County
otherwise than as herein found to be the fact -- namely, from the
northern line of said county to the Town of Greensburg, but no
"16. That, in the year 1868, upon a proposition therefor being
submitted to the vote of the qualified voters of Green County, the
majority of said qualified voters voted in favor of a proposition
to subscribe for $300,000 of the capital stock of the Elizabethtown
& Tennessee Railroad Company, and, upon the said result of the
election being properly ascertained and certified, the County Judge
of Green County, sitting alone and as the County Court of said
county, made and entered of record in said court the following
Page 211 U. S. 590
"1868. Green County Court, May Called Term,"
"1868, 20th Day of May"
" Present: T. R. Barnett, Judge."
" This day, T. R. Barnett, Presiding Judge, and D. T. Towles,
Clerk of the Green County Court, this day
certificate in words and figures as follows, viz.: We, T. R.
Barnett, Presiding Judge, and D. T. Towles, Clerk of the Green
County Court, duly authorized to compare the poll book of Green
County, certify that an election held in said county at the various
voting places in said county, on the 16th day of May, 1868, on the
question whether the County Court of Green County shall, for and on
behalf of said county, subscribe for three thousand shares in
capital stock of Elizabethtown & Tennessee Railroad Company, to
be paid for in the bonds of said county, payable in twenty years,
and bearing six percent interest, payable semiannually in the City
of New York, with interest coupons attached thereto, and that 586
votes were cast for said subscription and 204 against said
" May 20th, 1868."
"T. R. Barnett"
"D. T. Towles"
" It is therefore ordered by the court that the said vote be,
and is now, entered of record, as follows, to-wit, 586 votes cast
for said subscription, and 204 votes were cast against said
subscription, showing that there is a majority for said
subscription of three hundred and eighty-two votes."
" It is now therefore ordered that the clerk of this Court, for
and on behalf of the County of Green, make said subscription on the
terms specified in the order submitting the question to a vote, as
"17. That no formal or express exoneration of said county from
the payment of said last-named subscription was ever made or
attempted, but nothing further has, up to this date, ever been done
in respect to it, and neither bonds by the county nor stock by the
said last-named railroad company have ever
Page 211 U. S. 591
been issued or delivered in execution of said orders or under
the terms of said subscription."
"Upon consideration of the facts hereinbefore found to be true,
and of the opinion of the Court of Appeals, in the case of
Green County v. Shortell,
116 Ky. 108, the court, in
deference to said opinion, has recorded the following"
"Conclusions of Law"
"1. That the plaintiff is not entitled to recover because the
conditions upon which the subscription for the capital stock of the
Cumberland & Ohio Railroad Company was made, and upon which the
bonds sued on were issued, have not been performed or complied
"2. That the failure to recite in the bonds any of the facts
herein found to be true, or any of the conditions upon which the
bonds were issued, is immaterial as against the defense that there
was a failure to perform the said conditions."
"In consideration of the premises, it is considered and adjudged
by the court that the plaintiff's petition by, and it is,
dismissed, and that the defendant recover of the plaintiff its
costs herein expended, and it may have execution therefor."
The defendant filed no exception or objection to the findings of
fact, but the plaintiff excepted to the judgment, and sued out a
writ of error to the circuit court of appeals, which, after the
response by this Court to a question certified to it ( 205 U. S. 205
410), reversed the judgment of the circuit court with direction to
enter a judgment for the plaintiff. The question to be determined
is whether, on the findings of fact, the court of appeals erred in
ordering judgment for the plaintiff.
We think, although the defendant contends to the contrary, that
the findings of fact which accompanied the judgment of the circuit
court afford ample foundation for a final judgment. They were not
objected to by the defendant at the time, and it was content to
submit the case for judgment upon
Page 211 U. S. 592
them. Nor has anything been advanced in argument which leads us
to doubt their accuracy or to desire that they should be more
The defendant's counsel has not confined his argument to the
questions presented by the record. It seems expedient, therefore,
simply to determine the questions deemed to arise on the record,
and stop there.
When the case was here before, it was decided that the county
had the power to issue the bonds, upon the approval of the
qualified voters, and that (following the ruling of the highest
court of Kentucky in this respect) the voters might impose
conditions upon the issue. The approval was given, and the
conditions imposed were expressed in the vote, as follows:
". . . upon condition that said company shall locate and
construct said railroad through the said County of Green, and
within one mile of the Town of Greensburg in said county, and shall
expend the amount so subscribed within the limits of Green County,
and also upon the further condition that said bonds shall not be
issued or said county pay any part of the principal or interest on
said amount subscribed to said Cumberland & Ohio Railroad
Company until said County of Green is fully and completely
exonerated from the payment of the capital stock voted by said
county and authorized to be subscribed by said Green County Court
of the Elizabethtown & Tennessee Railroad."
Bonds to the amount of $250,000 were issued, and delivered
pursuant to the vote, to the Cumberland & Ohio Railroad
Company, and some of them have come to be legally owned by the
plaintiff. There was consideration for them in 25,000 shares of the
stock of the company, which were delivered to the county and have
been held by it up to the present time. There is not the slightest
evidence of fraud in their issue.
The real defense is that the bonds were void because the
conditions expressed in the vote, which are said to be
indispensable prerequisites to their validity, have not been
Page 211 U. S. 593
The conditions relied on in defense are two, and they are
subject to different considerations.
The condition that the bonds should not be issued until the
county had been "exonerated" from a subscription theretofore
authorized to be made to the stock of the Elizabethtown &
Tennessee Railroad is a condition precedent to the lawful issue of
the bonds. As these bonds contained no recital importing that the
conditions had been performed, it was open to the county to show,
even against a purchaser for value, before maturity, without
notice, that the conditions had not been performed. But the issue
of bonds in payment of a subscription to railroad stock by an
officer charged with the duty of ascertaining whether the
conditions indispensable to the lawful issue had been fulfilled
raises a presumption of their fulfillment prior to the issue. A
lawful holder of the bonds is entitled to rely upon this
presumption, although he incurs the danger that the presumption
will be overcome by evidence. If he wishes absolute security in
this respect, he must insist upon a recital. This much was
determined by the decision of this Court when the case was here
before. Quinlan v. Green County, 205 U.
. That case did not decide that there was a
presumption of performance arising out of the length of time during
which no claim was made in respect of the Elizabethtown &
Tennessee Railroad subscription, but that there was a presumption
of performance before the issue of the bonds. When we come to look
at the facts found by the circuit court, there is nothing to rebut
this presumption. On the contrary, everything tends to support it.
Even the wide range of the argument for the defendant did not
suggest a single fact which could to the slightest extent control
the presumption. The conclusion follows that the exoneration from
the prior subscription had happened before the issue of the bonds
to the Cumberland & Ohio Railroad Company. That condition has
been performed, and is not available as a defense.
We must next consider the effect of the provision in the vote
that the subscription to the stock, payable in bonds, shall
Page 211 U. S. 594
"upon condition that said company shall locate and construct
said railroad through the said County of Green, and within one mile
of the Town of Greensburg in said county, and shall expend the
amount so subscribed within the limits of Green County."
If this part of the vote imposes a condition upon the lawful
issue of the bonds or upon the obligation of the county to pay
them, the defense must prevail, for the condition has not been
performed. Only $150,000 have been expended within the limits of
the county, and the railroad, though constructed to Greensburg, a
distance of five miles, was not carried further, although it was
located from north to south through the county, a distance of
twenty miles. It is not conclusive that the obligation thus imposed
upon the railroad company is called a condition. It frequently has
been the case that the word "condition" has been used in written
instruments in a looser and broader sense than the law attaches to
it. In ascertaining the true meaning of instruments in writing,
courts do not confine their attention to single words, phrases, or
sentences. The meaning is sought from the whole instrument, viewed
in the light of the subject with which it deals. This general rule
of interpretation often makes it manifest that that which is called
a condition is really but a covenant or agreement, to be performed
independently of the counter-obligation with which it is
associated. When such an intent is discovered, the courts have no
difficulty in giving it effect, though the result be to disregard
the technical meaning of the word "condition." Stanley v.
5 Wall. 119; Sohier v. Trinity
109 Mass. 1; Episcopal City Mission v.
117 Mass. 326; Cassidy v. Mason,
507; Clapp v. Wilder,
176 Mass. 332; Post v.
115 N.Y. 361; Clark v. Martin,
49 Pa. 289;
Watrous v. Allen,
57 Mich. 362; Scoville v.
62 Conn. 378; Hartung v. Witte,
A consideration of the vote of the county leaves no doubt that
that part of it which prescribed the nature of the railroad
construction was not a condition. It would have been easy
Page 211 U. S. 595
to have postponed the obligation to pay the bonds until the
construction had been completed, as desired by the county. Such a
provision as that in Provident Life and Trust Company v. Mercer
County, 170 U. S. 594
would have been enough. Indeed, the draftsman need not have looked
afield. Nothing need have been done except to use the same language
with reference to construction which he used in this vote with
reference to exoneration from the prior subscription to the stock
of another railroad. There, he said that the subscription should be
"upon the further condition that said bonds shall not be issued or
said county pay any part of the principal or interest" until the
exoneration had happened. The studied omission of this apt, clear,
and emphatic language from the part of the vote dealing with the
construction of the Cumberland & Ohio Railroad is of
controlling significance. If the question rested upon this
comparison of language alone, it would be quite enough to warrant
the inference that it was not intended that the condition which was
imposed in the one case should be equally imposed in the other.
This conclusion is confirmed by a consideration of the subject
matter with which the vote dealt. It would have defeated the very
purpose for which the bonds were issued if the obligation to pay
them had been made conditional upon the completion of the
construction desired. The railroad to whose stock the county was
authorized to subscribe was not constructed, and needed the
proceeds of the bonds to complete the work of construction. By
accepting bonds upon the terms proposed, it came under the
obligation to expend the amount subscribed within the limits of the
county. As the subscription to the stock was to be paid for by the
bonds, the amount subscribed was the amount of the bonds. The bonds
which the county was authorized by the legislature to issue were
described in the law as
"payable to bearer, with coupons attached, bearing any rate of
interest not exceeding six percent per annum, payable semiannually
in the City of New York, payable at such times as they may
designate, not exceeding thirty years from date."
The bonds thus
Page 211 U. S. 596
described were evidently designed for the market. They could
pass from hand to hand, since they were payable to bearer. The
interest was represented by detachable coupons, and was payable at
the chief money center of the country. It is manifest that the
bonds were intended to be issued and delivered to the railroad
company before the construction began. It would require the very
strongest words in the vote to convince us that it was intended to
attach to such bonds a condition which would destroy their
obligation if, after a term of years, it should appear that the
construction had not been completed in the manner designated. Bonds
with such a condition would be unsalable, and it is inconceivable
that they could be issued with any expectation that they could be
used. We cannot doubt that the county, in its anxiety to secure the
building of the railroad, was content to rest upon the agreement of
the company to construct it in the manner desired, and that the
only technical condition to the validity of the bonds was that
which referred to the exoneration from a prior subscription. As it
turned out, it would have been very much wiser for the county to
have declined to issue the bonds until the construction was
completed, or to have taken some security for the performance of
the agreement with reference to the construction. But courts cannot
make for the parties better agreements than they themselves have
been satisfied to make. The records of this Court show that
prudence has not been a marked characteristic in the issue of
municipal bonds in aid of the construction of railroads.
Our conclusion upon the whole case is that, with the exception
of the condition which has been performed, the bonds were issued
upon a good consideration and unconditionally, and were a valid
obligation of the county in whosesover hands they subsequently
We have examined with attention and respect the case of
Green County v. Shortell,
116 Ky. 108, wherein the Court
of Appeals of the state arrived at a different conclusion, and
regret that we are unable to concur in its reasoning.
Page 211 U. S. 597
The finding of the circuit court was that the plaintiff, at the
time of beginning his action, which was after the bonds were
overdue, was the bona fide
holder, for value, of the bonds
and coupons sued on. In view of the conclusion at which we have
arrived, it seems unnecessary to dwell upon the exact terms of this
finding. In any event, the plaintiff was the legal holder and owner
of the bonds. This is not disputed. Assuming that any defense is
open of which the holder might have had notice by inspecting the
law, vote, and the records of the County Court, it would come to
nothing, because such an inspection would have shown that no
defense to the payment of the bonds existed.
We need not consider what would have been the situation if the
bonds were still in the hands of the railroad and it were bringing
action upon them, and an attempt had been made to set up against
their amount the damages resulting from the railroad's failure to
perform the agreement with respect to construction. The bonds here
are not in the hands of the railroad, nor is any such defense set
up. The defense is that the bonds are null and void, and, as has
been shown, that defense is without merit.
It appears that a recovery upon some of the coupons declared
upon is barred by the statute of limitations. This is conceded by
the plaintiff, who says that the judgment of the circuit court of
appeals, in view of the state of the pleadings, does not require
that there should be a recovery upon the coupons thus barred. It is
better, however, that this question be freed from doubt and the
judgment be modified so as to require the circuit court to
ascertain what coupons are barred by the statute of limitations and
to enter judgment for the remainder, and for the principal of the
bonds, of course, with interest in both cases. Thus modified, the
judgment of the circuit Court of appeals is
MR. JUSTICE HARLAN, dissenting.
I quite agree with Judge Lurton, of the Circuit Court of
Page 211 U. S. 598
Appeals, that common justice requires that there should not be
now any judgment upon the merits in these cases. He correctly said
that the findings of fact do not adequately cover all the issues,
and, upon those to which they are responsive, they are neither
definite nor full enough to justify a judgment in favor of the
plaintiff. Without expressing at this time any views upon the
merits of these cases, I am of the opinion that the judgment in
each case should be reversed, and the cases remanded with an order
for a new trial, when all the facts may be more fully disclosed,
and sufficient findings made.