and provide for the payment of the debts and expenses of the City," and, with the sanction of a majority of voters attending at an election for that purpose, "To borrow money on the credit of the City, and to issue bonds therefor, and pledge the revenue of the City for the payment thereof."

The bonds in suit upon their face import: 1. That the faith of the City is irrevocably pledged for their payment. 2. That they were issued in pursuance of the power which the Council possessed to borrow money on the credit of the City and issue bonds therefor, and also in accordance with certain ordinances which provided for a loan for municipal purposes. The recitals of the bonds, in themselves, furnish no ground whatever for the supposition that the Council in issuing them transcended its authority, or issued them for other than municipal or corporate purposes. They justify the opposite conclusion.

The City, however, claims that they were not issued for municipal purposes, but as a simple donation to a private corporation, formed for business ends solely, and in nowise connected with or under the control of the City; all of which, it is further claimed, appears from the ordinances, whose date and title are given in the face of the bonds.

obtained under the ordinance aforesaid for that purpose, or pro rata so far as said water-power shall be made available for practical use." The ordinance of July 30, 1869, further provided that Cushman should bind himself to return the bonds, and save the City harmless from all lose. if the work shall not be constructed.

The City avers that the franchises and powers referred to in the ordinance of July 30. 1869, were those granted to the Ottawa Manufacturing Company by an Act approved February 15, 1851, and by an Act amendatory there-of, approved February 16, 1865. The first Act created certain persons therein named a corporation under the style of "The Ottawa Manu facturing Company," with authority to erect a dam across Fox River at a designated point, For the purpose of creating a water-power,' and to "use, lease or otherwise dispose of the same, and construct such other works, buildings and machinery as may be deemed necessary or proper to use such water-power to promote the interests and objects of the company." The second Act conferred the additional right to build a dam across the Illinois River, and to construct races so as to introduce the water into the pool of the dam authorized to be erected across the Fox River. And for all the purposes. indicated in the original and amendatory Act the company was authorized to "take and use such portion of any highway, street, alley or public ground as may be deemed necessary." But neither of the ordinances, it will be observed, designates, by name, that or any other private company. Nor is it distinctly alleged by the City, nor asserted in argument, that the plaintiff understood the ordinances as referring to that company, or that he read them or had any actual knowledge of their terms at the time of his purchase. If the Council intended the general public and, particularly, purchasers of its bonds to know that the proposed development of the natural advantages of the City for manufacturing purposes was to be made under the franchises and powers, or for the benefit of that or any other private corporation, common fairness required that it should have so declared in the ordinances, and thereby distinctly informed all who should examine them, of what it now avows was its real purpose, viz.: by a simple donation to give aid to a particular private corporation, established for business. ends exclusively. If by reason of the general reference, in the bonds, to the two ordinances of June and July, 1869, the purchaser is chargeable with notice of their provisions (a proposition to be hereafter examined), the utmost which the City in view of the indefinite language of the ordinances, can claim is that he had notice that the bonds were issued for the purpose of "Developing the manufacturing resources of the City for manufacturing purposes.' Nothing more. This brings us to a question which counsel have discussed with some elaboration in their printed arguments.

The ordinance of June 15, 1869, authorizes the mayor to borrow, in the name, for the use, and upon the bonds of the City, the sum of $60,000, to be expended in developing the natural advantages of the City for manufacturing purposes," and providesThat no application shall be made of the proceeds of the said bonds except for the purpose aforesaid, and in pursuance of an ordinance to be duly passed for that purpose by the City Council, nor until the faithful application of the proceeds of such bonds to the purpose aforesaid shall be fully secured to the City." It further provides that a sufficient sum to pay interest on the loan should be annually provided by taxation, and set apart as a separate fund, to be applied solely to payment of the interest on the bonds. That or dinance was ratified at an election held on the 20th of July 1869, by a majority of all the legal voters of the City. The ordinance of July 30, 1869, was to carry into effect the one of June 15, 1869. It directed the mayor to deliver the bonds to one Cushman, "To be used by him in developing the natural resources of the surroundings of the City, and that the said Cushman is authorized and directed to expend the sum in the improvement of the water-power upon the Illinois and Fox Rivers within the City and in the immediate vicinity thereof, under the franchises and powers which have been granted for that purpose, in the manner which, in his judgment, shall best secure the practical and permanent use of said water-power in the City and its immediate vicinity." It provided that Cushman should execute and deliver to the mayor his obligation that he would, with out unreasonable delay, and by proper appli We have seen that the charter of the City ances, bring into use all the available water of confers upon the Council power to borrow the two rivers at Ottawa, as fast as it might be money, upon the credit of the City, and to isrequired for actual use, and as fast as it could sue bonds therefor. No limitation is prescribed be leased at fair and reasonable rates-"The in- as to the amount which may be borrowed. Nor tent of this ordinance being to secure the im- is any express restriction imposed as to the obprovement and development of said water-jects or purposes for which bonds may be issued. power in this City by appropriating the loan It is clear, therefore, that the Council, having

thought it difficult to determine with precision what was a corporate purpose,' in the sense of the Constitution, but came to the conclusion that it was such a purpose, and such only, as might have a legitimate connection with objects and purposes promotive of the welfare of the municipality, and a manifest relation thereto."

secured the assent of the requisite majority of voters, might rightfully borrow money upon bonds of the City for every purpose which could fairly be deemed municipal or corporate. But the specific contention of the City is that the development of the natural resources of the City for manufacturing purposes is not, upon principle or within the meaning of the Illinois In view of the course of decisions in Illinois, Constitution of 1848, a corporate purpose. Aft- we should hesitate to declare that money borer a careful examination of the decisions of rowed by the City of Ottawa and expended in the Supreme Court of Illinois to which our developing its natural resources for manufactattention has been called, we find this ques-uring purposes, was not, in the sense of the Illition by no means free from difficulty. The nois Constitution of 1848, as interpreted by the leading case, Taylor v. Thompson, 42 Ill., 9, Supreme Court of that State, expended "To involved the question whether a tax levied, promote the general prosperity and welfare of under the authority of an Act of the Legislature the municipality." passed in 1865, upon the property of a township, to pay bounties to persons who should thereafter enlist or be drafted into the Army of the United States, was for a corporate purpose, within the meaning of the State constitution. The person who complained of the tax, in that case, was a non-resident of the township, but he owned taxable property within its limits. The Supreme Court of Illinois, through Judge Lawrence, in an opinion of marked abil ity, sustained the validity of the tax, defining the phrase "corporate purposes" to mean "a tax to be expended in a manner which shall promote the general prosperity and welfare of the municipality which levies it." It is suggested, by learned counsel for the City, that that and similar decisions, rendered during the late civil war, were exceptional, and were made almost er necessitate, because the courts were unwilling to cripple the power of the government to raise troops by denying to counties, cities and towns the right to offer bounties when authorized by the Legislature. An answer to this suggestion is found in the fact that the same court re-affirmed the doctrine of Taylor v. Thompson in the cases of Briscoe v. Allison, 43 Ill., 293; Misner v. Bullard, 43 Ill., 470; and Johnson v. Campbell, 49 Ill., 317. In the subsequent case of R. R. Co. v. Smith, 62 Ill., 268, decided in 1871, the court referring to the definition of corporate purpose as given in Taylor v. Thompson, announced their acceptance of it. In People v. Dupuyt, 71 Ill., 651, the same definition was referred to without disapproval. The court, declaring that it had gone far enough in uphold. ing that tax, said: "It may be difficult to determine with precision what is a corporate purpose, in the sense of the Constitution, but it is less difficult to determine what is not such a purpose. The true doctrine is, such purposes, and such only, as are germane to the objects of the welfare of the municipality, at least such as have a legitimate connection with these objects, and a manifest relation thereto." Again; in Burr v. Carbondale, 76 Ill., 455. Ch. Justice Breese, the court sustained a tax imposed by the City in support of the Southern Illinois Normal University, to which the people of that City had voted a tax and, referring to Taylor v. Thompson, said that a corporate purpose was there" held to mean a tax to be expended in a manner which should promote the general prosperity and welfare of the municipality which levied it. But in that case a vote of the people authorizing the tax was first to be taken, and the people, in fact, voted the tax. This was an important fact in determining that case. We

But a direct decision of that question does not seem to be essential to the disposition of this case. We content ourselves with stating the propositions which counsel have urged upon our consideration, and without expressing any settled opinion as to what are corporate purposes within the meaning of the Illinois Constitution, we pass to another point, which, in our judgment, is fatal to the defense. It is consistent with the pleas filed by the City that the testator of plaintiffs in error purchased the bonds before maturity for a valuable consideration, without any notice of want of authority in the City to issue them, and without any information as to the objects to which their proceeds were to be applied, beyond that furnished by the recited titles of the ordinances. For all corporate purposes, as we have seen, the Council, if so instructed by a majority of voters attending at an election for that purpose, had undoubted authority, under the charter of the City, to borrow money upon its credit and to issue bonds therefor. The bonds in suit, by their recital of the titles of the ordinances under which they were issued, in effect, assured the purchaser that they were to be used for municipal purposes, with the previous sanction, duly given, of a majority of the legal voters of the City. If he would have been bound, under some circumstances, to take notice, at his peril, of the provisions of the ordinances, he was relieved from any responsibility or duty in that regard by reason of the representation, upon the face of the bonds, that the ordinances under which they were issued were ordinances "providing for a loan for municipal purposes." Such a representation by the constituted authorities of the City, under its corporate seal, would naturally avert suspicion of bad faith upon their part, and induce the purchaser to omit an examination of the ordinances themselves. It was, substantially a declaration by the City, with the consent of a majority of its legal voters, that purchasers need not examine the ordinances, since their title indicated a loan for municipal purposes. The City is, therefore, estopped, by its own representations, to say, as against a bona fide holder of the bonds, that they were not issued or used for municipal or corporate purposes. It cannot now be heard, as against such holder, to dispute their validity. Had the bonds, upon their face, made no reference whatever to the charter of the City, or recited only those provisions which empowered the Council to borrow money upon the credit of the City and to issue bonds therefor, the liability of the City to a bona fide holder could not be questioned. Much

less can it be questioned, in view of the additional recital in the bonds that they were is sued in pursuance of an ordinance providing for a loan for municipal purposes; that is, for purposes authorized by its charter. Supervisors v. Schenck, 5 Wall., 772 [72 U. S., XVIII., 556]. It would be the grossest injustice, and in conflict with all the past utterances of this court, to permit the City, having power under some circumstances to issue negotiable securities, to escape liability upon the ground of the falsity

of Frauds, though signed by the defendant and de-
sold and the consideration to be paid, is not suff-
scribing with sufficient distinctness the property
cient to sustain an action, unless the other party to
the agreement is either named in the memoran-
dum or so designated in some paper signed by the
defendant that he could be identified without parol
proof.
[No. 179.]

Argued Mar. 12, 1879. Decided Mar. 24, 1879.

TN ERROR to the Circuit Court of the United
York.

The case is fully stated by the court.
Messrs. A. J. Vanderpoel and James W.
Gerard, for plaintiff in error:

The paper relied on as the agreement was invalid, for that no vendor was named in it.

Sherburne v. Shaw, 1 N. H., 157; Boyce v. Greene, Batty, 608; Williams v. Lake, 2 El. & El., 349; Williams v. Byrnes, 9 Jur. (N. S.), 363, Privy Council; Potter v. Duffield, L. R., 18 Eq., 4; Champion v. Plummer, 1 B: & P., N. R., 252; Wain v. Warlters, 5 East, 10.

The memorandum of the auctioneer, to bind the purchaser, must be contemporaneous with the sale. Smith v. Arnold, 5 Mas., 414; Potter v. Duf

agents and under its corporate seal, as to the
purposes with which these bonds were issued.
Whether such representations were made inad-
vertently, or with the intention, by the use of
inaccurate titles of ordinances, to avert inquiry
as to the real object in issuing the bonds, and
thereby facilitate their negotiation in the money
centers of the country, in either case, the City,
both upon principle and authority, is cut off
from any such defense. What this court de-
clared, through Justice Campbell, in Zabriskie
v. R. R. Co., 23 How., 381 [64 U. S., XVI.,
488], as to a private corporation, and repeated,
though Mr. Justice Clifford, in Bissell v. Jeffer-
sonville, 24 How., 287 [65 U. S., XVI., 664], as
to a municipal corporation, may be reiterated
as peculiarly applicable to this case: "A corpora-field, supra, A. D. 1870.
tion, quite as much as an individual, is held to
a careful adherence to truth in their dealings
with mankind; and cannot, by their representa
tions or silence, involve others in onerous en-
gagements, and then defeat the calculations and
claims their own conduct had superinduced.'
What we have said disposes of the second plea
filed by the City. As to the third plea, it is
scarcely necessary to say that it does not present
a defense to the action. The questions raised
by that plea have not been alluded to or discussed
in the printed arguments of counsel.

The judgment is reversed, with directions to sustain the demurrer to the second and third pleas, and for such further proceedings as may be consistent with this opinion.

I, James H.McKenney,Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the court in the case of Wm. H. Hackett et al., Exrs., etc., Piffs. in Err. v. The City of Ottawa, No. 880, October Term,

1878, as the same remains upon the files and records

of said Supreme Court.

118.

The case of Salmon Falls Mfg. Co. v. Goddard, 14 How., 446, is commented on in Browne on Frauds, section 375, and the author shows how, on its special facts, it is saved from conflict with the general rule.

66

33

In Rossiter v. Miller, 48 L. J. Ch. (N. S.), at p. 17, Lord Chancellor Cairns, commenting on the maxim, Id certum est quod certum reddi potest, says, a writing, "I enter into a contract, on behalf of my client,' ""on behalf of my principal,' on behalf of my friend," on behalf of those whom it may concern," has no such certainty, and in none of those cases would the note satisfy the requirement of the Statute of Frauds.

""

99.66

Parol testimony will be received only for the purpose of interpretation or explanation, where technical terms are employed, or to identify papers which, by a reference to the signed memoranda, are made parts of it.

Drummond, 11 East, 142; Coles v. Trecothick, 9 Johnson v. Buck, 35 N. J. L., 344; Boydell v. In testimony whereof I hereunto sub- Ves., 250; Clinan v. Cooke, 1 Sch. & L., 22; scribe my name and affix the seal of said Parkhurst v. Van Cortlandt, 1 Johns. Ch., 273; [L. S.] Supreme Court, at the City of Washing-1 Smith L. C., 465; Dovell v. Hutchinson, 3 Ad. ton, this 5th day of May, A. D. 1885. & El., 355; First Bap. Ch. v. Bigelow, 16 Wend.. 28-31; O'Donnell v. Leeman, 43 Me., 158; Peek Cited-103 U. S., 260; 105 U. S., 343; 108 U. S., 115, V. N. Staffordshire R. R. Co., 10 H. L. Cas., 472;

JAMES H. MCKENNEY,

Clerk, Supreme Court, U. S.

JOSEPH GRAFTON, Piff. in Err.,

v.

STEPHEN H. CUMMINGS.

(See S. C., 9 Otto, 100-112.)

Statute of Frauds-requirement of memorandum. *The memorandum in writing,necessary to make a valid contract within the meaning of the Statute *Head notes by Mr. Justice MILLER.

NOTE.-Statute of Frauds, what is sufficient note or memorandum under. See note to Barry v. Coombe, 26 U. S. (1 Pet.), 640.

Knox v. King, 36 Ala., 367.

A contract, as originally entered into, cannot at law be altered by evidence of a parol variation, in favor of either plaintiff or defendant.

Dart, Vend., 451; Sugd. Vend., 171; Goss v. Nugent, 2 Nev. & Man., 33; Emmet v. Dewhirst, 8 Eng. L. & E., 88; Blood v. Goodrich, 9 Wend., 68; Sanderson v. Graves, L. R., 10 Exch., 234.

Messrs. Henry Heywood, Thomas H. Hubbard and Wm. Allen Butler, for defendant in error:

It seems to us that the case of Sal. Falls Mfg. Co. v. Goddard, 14 How., 446, is conclusive upon this point. There it was held that it was competent to show that Mason signed for the

firm of Mason & Lawrance, and that that house | writing, and the advertisement mentioned in was acting as agent for the plaintiffs. In that way the sellers' name was shown in the memorandum relied upon in that case, which is carry ing the rule far beyond anything claimed by it. The case arose upon the Massachusetts statute in relation to the sale of goods. The statute of New Hampshire under which our case comes up, is, in every material particular, the same as the Massachusetts statute.

The cases of Lerned v. Wannemacher, 9 Allen, 412, and Lerned v. Johns, 9 Allen, 419, are directly in point. Coddington v. Goddard, 16 Gray, 436.

The case of Gowen v. Klous, 101 Mass., 449, is upon a contract of the same form as that in the case at bar, and in our view is, in all respects, a parallel case with this.

Hunter v. Giddings, 97 Mass., 41.

It is sufficient if the memorandum, taken in connection with the evidence of the surrounding circumstances, shows the seller. In the advertisement the names of James W. Weeks and S. H. Cummings appear, and the evidence properly admitted shows them to be the sellers of the property.

Newell v. Radford, L. R., 3 C. P., 52: Beckwith v. Talbot, 95 U. S., 289 (XXIV., 496).

Mr. Justice Miller delivered the opinion of the court:

On the 16th day of May, 1871, the hotel known as the Glen House, at the foot of the White Mountains in New Hampshire, together with its furniture, was bid off at an auction sale by Grafton, the plaintiff in error, at the price of $90,000. At the end of the ten days allowed by the terms of the sale for examination of the title, three deeds were tendered him which were supposed to convey the title. He refused to accept the deeds, or pay the purchase money, or other wise complete the contract of purchase. The property was again advertised for sale and sold for $61,000; and the present suit was brought to recover the difference in the amounts for which the property sold at these two sales, as damages for failure to perform the first contract.

The suit was brought in the Circuit Court for the Southern District of New York, and a verdict and judgment recovered against Grafton, to which he prosecutes this writ of error.

The bill of exceptions is voluminous, containing, apparently, everything said and done on the trial. Sixty-one errors are assigned in this court.

the writing so signed. They are as follows:
"I, the subscriber, do hereby acknowledge
myself to be the purchaser of the estate known as
the Glen House, with furniture belonging to it,
in Green's grant, New Hampshire, and sold at
auction, Tuesday, May 16th, 1871, at 11 o'clock
A. M., and for the sum of $90,000, the said
property being more particularly described in
the advertisment hereunto affixed; and I hereby
bind myself, my heirs and assigns, to comply
with the terms and conditions of the sale, as
declared by the auctioneer at the time and place
of sale.
JOSEPH GRAFTON."

Upon the margin of said agreement were
written and printed the following:
TERMS OF SALE.

"Ten days will be allowed to examine the title, within which time the property must be settled for. Five thousand dollars will be required of the purchaser on the spot, which will be forfeited to the seller if the terms and conditions are not complied with; but the forfeiture of said money does not release the purchaser from his obligation to take the property. Fifteen thousand dollars to be paid on the delivery of the deed, and one half of the purchase money to be paid Sep. 1, 1871, the remaining balance to be paid Sep. 1, 1872.

The property is sold subject to the conditions of the sale of the stage route, stages, etc., which are that the proprietors of the route shall have the exclusive business of the house."

The advertisement referred to in the foregoing paper as being thereunto affixed was as follows:

"

"VALUABLE HOTEL PROPERTY FOR SALE.

The favorite summer resort known as the Glen House, situated at the foot of Mount Washington and at the commencement of the carriage road to the summit, will be offered for sale, together with the land, containing about one thousand acres (well timbered), all the outbuildings, stables and mill on the same, also the furniture, staging, mountain carriages, horses, etc. The house contains some two hundred and twenty-five rooms, capable of accommodating between four and five hundred guests. We shall confine ourselves to the examination The whole property, if not disposed of at priof one of them. That one presents the ques-vate sale previous to the first of May, will be tion, as it occurs in various forms in the record, whether there was a sufficient memorandum of the contract in writing, under the Statute of Frauds of New Hampshire, to sustain the action.

That Statute is in these words: "No action shall be maintained upon a contract for the sale of land, unless the agreement upon which it is brought, or some memorandum thereof, is in writing, and signed by the party to be charged, or by some person by him thereto authorized by writing." The agreement given in evidence on the trial by Cummings, the sole plaintiff, consisted of a paper in writing signed by Grafton, certain printed matter on the margin of that

sold at public auction to close the estate of the late J. M. Thompson. Notice of the time and place of sale will be given hereafter. Any person desirous of seeing the property, which is in thorough repair, or wishing to make any inquiries, can do so by applying to J. W. Weeks, administrator, Lancaster, N. H., or S. H. Cummings, Falmouth Hotel, Portland, Maine."

The bill of exceptions adds, that when this paper was put in evidence it was indorsed “A. R. Walker, auctioneer and agent for both parties." It is not satisfactorily shown when this indorsement was made, and there is some evidence to show that it was not there at the time the deeds were tendered and Grafton refused to accept