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Opinion of the Court

pay any overdue and unpaid note of Hubbard, for which the bonds were so held as collateral security ; that the defendant sold all of the bonds at a time when no note of Hubbard was due and unpaid to it, and when it had no right to sell the same;

and that the defendant owes the plaintiff $20,000, for the proceeds of the sale of such bonds, and for the interest coupons attached thereto, and for interest on such proceeds from May 1, 1879, when the same was demanded by the plaintiff from the defendant, and which the defendant then refused to pay to the plaintiff.

The answer of the defendant denies all the allegations of the writ and the declaration, and sets up that whatever bonds were sold by it were rightfully sold ; that it had the legal right to retain whatever money it had retained from the pro ceeds of the sale of any of the bonds; and that whatever of the acts complained of were done by the defendant were done by the consent of the plaintiff, so far as his consent was necessary and proper to the validity of such acts, and were ratified by the plaintiff, so far as he had any interest therein.

There was a trial in 1883 by a jury, which failed to agree on a verdict. In September, 1885, by a written stipulation, a trial by a jury was waived, and the case was tried by the court without a jury. On the 16th of January, 1886, the court found as facts:

(1) That, prior to April 24, 1879, the plaintiff's testator de livered to Appleton Hubbard, of Cambridge, certain bonds of the United States, amounting, at their face value, to $10,000, with power and authority to dispose of them and to deal with them in the manner in which the same were disposed of and dealt with by said Hubbard, as hereinafter stated;

(2) That, after such delivery, Hubbard pledged them to the defendant as collateral security for the payment of twentyfive promissory notes made by said Hubbard and payable to and owned by the defendant, which notes were in the whole for the sum of $10,000, and were to mature on different days from the 24th of April, 1879, to the 5th of August, 1879;

(3) That, on the 24th of April, 1879, Hubbard agreed with the defendant that said bonds should be sold and the proceeds invested in other bonds of the United States;

Opinion of the Court.


(4) That, on the 25th of April, 1879, the defendant sold said oonds and received for them the sum of $10,156.25;

(5). That, on the 29th or 30th of April, 1889, Hubbard agreed with the defendant that the proceeds of the sale of said bonds should not be invested in other bonds of the United States, but that such proceeds should be applied by the defendant to the payment of the notes of Hubbard then held by the defendant, part of which were due and part of which were to become due, and that proper allowances of interest by way of

, charge or rebate should be made in respect of said notes;

(6) That thereupon the defendant applied said proceeds according to said agreement, and that the surplus of said proceeds over and above the amount of all said notes, with allowance of interest as aforesaid, was $175.85;

(7) That, on the 16th of May, 1879, the defendant paid said sum of $175.85 to Hubbard, and on the 19th of May, 1879, Hubbard paid the same amount to the plaintiff ;

(8) That the plaintiff afterwards had knowledge of all the facts hereinbefore stated, and, having knowledge of the same, ratified and confirmed the said contracts, dealings and transactions between Hubbard and the defendant.

On these findings of fact the court held as matter of law: 1, That the evidence offered by the defendant to prove proceedings in insolvency against Appleton Hubbard is irrele. vant and inadmissible ; 2, That the above findings of fact may lawfully be made from the evidence admitted and considered ; 3, That, on the above findings of fact, there should be judgment for the defendant, for costs.

On the same day, a judgment was entered that the plaintiff take nothing by his writ, and that the defendant recover the costs of suit from the plaintiff.

There is a bill of exceptions, which states that each party introduced evidence to maintain on his part the issue joined; that the evidence on both sides is annexed to the bill of exceptions and made part thereof; that, after the close of the evidence, the plaintiff insisted that he was entitled to judgment, and filed with the court certain prayers for findings of fact and of law, which are annexed to and made part of the

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Opinion of the Court.

bill of exceptions; that the court refused to make any of such findings, except in so far as they were consistent with the findings of fact and of law which the court afterwards made, being the findings above set forth, to which refusal the plaintiff excepted; and that the plaintiff also filed exceptions to the findings of fact and of law so made, and to the refusal of the court to make the findings of fact and of law so requested by the plaintiff.

The plaintiff brought a writ of error to review the judgment; and, he having died, the writ is prosecuted in the name of his executrix.

The assignments of error filed in the Circuit Court and sent up with the record allege that the court erred, first, in making the finding of fact numbered (1); second, in making the finding of fact numbered (5); third, in making the findings of fact numbered respectively (7) and (8); fourth and fifth, in inaking its findings of law numbered 2 and 3; and sixth, in inaking its mixed finding of law and fact, that there was ratification and confirmation of the dealings of Hubbard and the defendant concerning the $10,000, face value, of the United States government bonds, in controversy.

The first three assignments of error allege errors merely in the findings of fact by the court. Those errors are not subject to revision by this court, if there was any evidence upon which such findings could be made. The Francis Wright, 105 U. S. 381, 387; McClure v. United States, 116 U. S. 145, 152; Union Pacific Railway v. United States, 116 U. S. 154, 157; MerchantsIns. Co. v. Allen, 120 U. S. 67, 71. Those three assignments of error amount, in substance, to the same thing as the alleged error in finding as a matter of law that the findings of fact stated could lawfully be made from the evidence admitted and considered.

The assignment of error numbered 6 raises the same question which is raised by that numbered 4, namely, whether there was any evidence in the case which authorized the court to make the finding of fact numbered (8), covered by the assignment of error numbered 3, as to ratification and confirmation.

Opinion of the Court.

As to the findings of fact numbered (1) and (2) we are of opinion that, on the evidence of Hubbard, and that of the defendant's cashier, Bullard, and that of the plaintiff, and the other evidence in the case, the court was justified in making those findings. It was, like a jury, the sole judge of the credibility of the witnesses, and the questions were questions of fact, on the evidence. It would serve no good purpose to examine the evidence critically, nor is it our province to do so. It is sufficient to say that the case was not one where there was no evidence to justify the findings of the court.

The same remarks may be made as to the other findings of fact made by the court, and especially as to its finding that the plaintiff, with knowledge of all the facts found by the court, ratified and confirmed the contracts, dealings and transactions between Hubbard and the defendant, set forth by the court.

As to the refusal of the court to find certain facts specified by the plaintiff, and certain propositions of law based on those facts, they were either immaterial facts or incidental facts amounting only to evidence bearing on the ultimate facts found. The Francis Wright, 105 U. S. 381, 389; McClure v. United States, 116 U. S. 145, 152; Union Pacific Railway v. United States, 116 U. S. 154, 157; Merchants' Ins. Co. v. Allen, 120 U. S. 67, 71.

The action being founded on the alleged wrongful acts of the defendant in selling the bonds and using the proceeds to pay the notes of Hubbard, it follows that, if Hubbard consented to such acts, and if, by the arrangement between Hubbard and Gilbert Hathaway, the former had authority to consent to such acts, and if the plaintiff, having full knowledge of the transactions, ratified and confirmed what was done, he could not maintain this action.

Judgment affirmed.

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The holder of $14,000 out of $955,000 of railroad bonds secured by a mort

gage was permitted by the Circuit Court to appeal to this court, in the name of the trustee in the mortgage, from a decree which it was claimed affected the interest of such holder. It appearing that some time before the appeal was taken the trustee had executed a release of his right to appeal, and of errors in the decree, and that the court had, in the decree, found that there was no proof showing that the trustee had not acted in good faith: Held, that the release bound all the bondholders represented by the trustee; that it was properly brought before this court, though not found in the transcript of the record; that the appeal was the appeal of the trustee; and that, on the motion of the appellee, it must be dismissed.

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This case grows out of proceedings which took place in the Circuit Court of the United States for the Northern District of Illinois, in the suit of William R. Fosdick and James D. Fish, mortgagees in trust, against The Chicago, Danville and Vincennes Railroad Company and others, wherein this court, in Chicago & Vincennes Railroad v. Fosdick, and The Same v. lluidekoper, 106 U. S. 47, on the appeal of the railroad company, had under review decrees made by the Circuit Court in the cause.

The suit was brought March 27, 1875, to foreclose a mortgage executed by the company, on March 10, 1869, to Fosdick and Fish as trustees, to secure $2,500,000 of bonds. The defendants in the bill were the railroad company and James W. Elwell, one of the two trustees, (the other being the said James D. Fish,) in a second mortgage executed by the company December 16, 1872, to secure $1,000,000 of convertible bonds. Elwell, astsuch trustee, filed a cross-bill, May 17, 1875, setting up a default in the payment of interest on the bonds secured by the second mortgage, and praying for a foreclosure of it. A receiver was appointed, May 20, 1875, -and an

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