penditure of 11⁄2 mills on the dollar of the taxable property in any one year for street-lighting purposes; and sections 159 and 160, while not so explicit, are just as effective to confine the expenditure for the repair of streets to one-fourth of 1 mill on the dollar of the taxable property of the city. Section 159 authorizes the council, whenever it deems it expedient, to declare by ordinance whether the cost of a repair shall be paid out of the general fund; but this must be read in the light of the subsequent clause and section 160. By the subsequent clause the expense of temporary repairs shall be paid out of the fund raised for the repair of streets; and, by section 160, if the common council declares that the cost shall be paid out of the general fund, such repair (that is, such as is provided for in section 159) shall be deemed a temporary repair, and be paid for accordingly, which necessarily must be out of the street-repair fund, as the latter clause of section 159 requires the cost of a temporary repair to be paid out of that particular fund. The legislature used the term "general fund," no doubt, to distinguish between the cost to be paid by the adjacent property and that to be paid by the city. If, however, it was determined that it should be paid by the city, then it was the purpose to confine the city to payment out of the fund for repairing streets. Section 217 indicates a purpose, also, to limit the city in the amount of its expenditures to the estimated annual revenues; and it is provided that from such revenues shall be deducted the interest charge, the appropriations for the fire and police departments, and other fixed charges, which evidently includes the funds for lighting and repairing streets. What remains constitutes the general fund of the city, and of this no greater sum than onetwelfth thereof shall be expended in any month. The general scheme, therefore, devised by the legislature for conducting and managing the finances of the city, includes the setting apart, among others, of a specific fund, consisting of one-fourth of one mill on the dollar on all taxable property of the city, for the purpose of repairing streets, which cannot be augmented or increased during the year by the city authorities. In other words, the common council is limited in its expenditures for that purpose to the maximum amount thus prescribed, and any expenditures therefor in excess of the prescribed fund are unauthorized and unwarranted. An appropriation must be made for the specific purpose, and when made the fund becomes available, and not otherwise. Such an appropriation has been made for the current year. Now, the declared purpose of Ordinance No. 11,736 is to raise revenue; and section 8 appropriates the whole of it to the fund for the repair of streets and bridges, thus signifying a clear intention on the part of the common council to supplement or augment the fund for repairing streets beyond the amount as limited by the charter. This, we have seen, it is not authorized to do, and the ordinance is therefore void and inoperative. It is immaterial whether a license fee imposed under subdivision 3, § 32, of the charter, is referable to the taxing or to the police power of the city. The ordinance in the present case obviously denotes that its specific purpose is to raise revenue, and not only this, but to appropriate the whole of it to a use for which there is a circumscribed fund, which is not permitted to be augmented in any manner when its full quota of the city revenues has been set apart. We only know of the amount of the taxable property of the city by the assessment roll as returned by the officer intrusted with the duty of making the assessment. His valuations are conclusive, and whether he has rated the property at 60 or 100 per cent. of its cash value we cannot inquire, but must presume that he has performed his duty and rated it at its true value. It is argued that if section 8 of the ordinance be invalid, as making an appropriation, yet that the ordinance in all other respects may be adjudged to be valid, and that the revenue accruing under it would go into the general fund, and be otherwise disposed of as the city may direct. But the very purpose of the ordinance is to raise revenue for the particular fund named in section 8 thereof, and to so hold would be to subvert the specific intention of the common council, which we cannot do, under any rules of interpretation known to the law. In support of this construction of the charter and the ordinance in question, see Chamberlain v. City of Tampa, 40 Fla. 74, 23 South. 572; Black v. Common Council, 119 Mich. 571, 78 N. W. 660. It follows that there must be an affirmance of the decree of the court below, and it is so ordered. WILLIAMSON et al. v. NORTH PACIFIC 1. Where the conversation between the parties, so far as it related to the authority of plaintiffs to act for defendant in settling a controversy, was merged in a letter from defendant to plaintiffs, so that the authority must be determined therefrom, its construction is for the court, though it is to be construed in connection not only with a prior letter, but with defendant's testimony as to how a clause happened to be added to the letter, and with the surrounding circumstances. 2. Where defendant sold lumber to plaintiffs in California to be shipped to customers in Chile, where all plaintiffs' business was done, to defendant's knowledge, through an allied firm there located, and defendant's contract of sale provided that, in the event of any dispute arising at the port of discharge in regard to quality, it should appoint a representative on the spot to settle it, but it refused to do so on a dispute arising, the statement to plaintiffs, "We will be satisfied with any settlement you may make for us in adjusting the matter at point of destination," is authority to settle the matter through the allied firm in Chile. Appeal from circuit court, Multnomah county; Arthur L. Frazer, Judge. Action by Stephen Williamson and others, partners as Balfour, Guthrie & Co., against the North Pacific Lumber Company, a corporation. Judgment for defendant. Plaintiffs appeal. Reversed. This is an action for reclamation on two cargoes of lumber purchased by the plaintiffs from the defendant, and shipped to ports on the west coast of South America. The defendant is a corporation engaged in the manufacture and sale of lumber at Portland. Plaintiffs are merchants doing business there and at other Pacific Coast points, and are associated in business with the firm of Williamson, Balfour & Co. at Valparaiso, Chile. The Valparaiso firm receives orders in Chile for Oregon and Washington lumber, and sends them to the plaintiffs to be filled. The latter purchase the lumber from local manufacturers and ship it to Chile, where it is delivered to the buyer, and the profit and loss of the venture shared by the two companies. In February and March, 1896, the plaintiffs, to fill orders thus received, contracted with the defendant for two cargoes of lumber, in accordance with certain specifications, to be shipped on the ships Airlie and Ballochmyle to points on the coast of Chile. Each of the contracts contains the stipulation that, "in event of any dispute arising at port of discharge in regard to quality, sellers to appoint a representative on the spot to attend to and After the Airlie had been settle the same." loaded, it was discovered that by mistake some 40,000 feet of 4x12 lumber in excess of the amount called for by the specifications was included in her cargo. The defendant's attention was called to the matter, and it agreed that, if plaintiffs would take the excess, it "would stand good for anything that might crop up regarding it," or do "whatever was right in the matter." The cargo was thereupon accepted and paid for by the plaintiffs, but without inspection at Portland. The Airlie sailed in April, and reached her first port of discharge some time in June. On August 4th plaintiffs received from the Chilian firm information in regard to some difficulty about the stowage of her cargo, and immediately transmitted the same to defendant, with the following letter: "Portland, Or., August 4, 1896. North Pacific Lumber Co., City-Dear Sirs: We inclose herewith some correspondence from Valparaiso in regard to difficulty with the Airlie cargo, and will be glad to hear what you have to say on the subject. Yours, truly, Balfour, Guthrie & Co." The Airlie, having discharged a part of her cargo at Coquimbo, arrived at Iquique, her final port of discharge, the latter part of July. When the 4x12 lumber was tendered to the parties who had ordered it, they declined to take the 40,000 feet of excess, because it was 63 P.-2 inferior in quality and not ordered. The Pres't." The plaintiffs cabled the Chilian firm to settle the dispute about the lumber as best they could, and on the 24th of November received the reports of the adjustment of the controversy, together with the original reports of the surveyors of the cargoes and of an expert called in to assist them, and immediately forwarded copies thereof to the defendant, with a demand for a reclamation of $325.73 on the shipment of the Airlie and $3,087.15 by the Ballochmyle. The defendant refused to pay the amount demanded, putting its refusal on the ground that the lumber purchased from it by the plaintiffs was “as good as any lumber that your firm has ever purchased from us, and equal to any grade of merchantable lumber on the Pacific Coast," and hence this action. It was originally brought in the name of the plaintiffs, but afterwards the complaint was amended by making the Chilian firm a joint plaintiff, and inserting an allegation that it was a partner in the venture. These amendments were subsequently stricken out on motion of the defendant, and the cause went to trial on an answer consisting of general denials only, resulting in a mistrial. Defendant was afterwards permitted to file an amended answer, which purports to set up fraud in the settlement made by the Chilian house. The new matter in the amended answer was put in issue by a reply, and on the second trial a verdict and judgment were rendered in favor of the defendant, from which the plaintiffs prosecute this appeal, assigning as error the giving and refusal of certain instructions by the trial court. W. D. Fenton and F. D. Chamberlain, for appellants. Thos. N. Strong, for respondent. BEAN, C. J. (after stating the facts). Although the complaint alleges and the answer denies that the lumber rejected by plaintiffs' buyers in Chile was inferior in quality and did not conform to the contract between plaintiffs and defendant, no evidence was offered by the plaintiffs and none admitted on behalf of the defendant in relation to the matter. The plaintiffs relied entirely upon the fact that their buyers had objected to the quality of the lumber at the port of discharge, and that defendant had authorized them to appoint the Chilian firm to settle and adjust such dispute. In other words, the position of the plaintiffs is that the agreement between them and the defendant in reference to the settlement of the dispute, and the subsequent action had thereon, was in fact a submission to arbitration and an award, and should be so treated. This was the view of the trial court; hence it excluded the testimony offered by the defendant showing or tending to show that the lumber was in fact of the quality specified in its contract with the plaintiffs. With this general view of the position of the parties, and the theory upon which the cause was tried in the court below, we proceed to notice such of the assignments of error as we deem material. The first and most important one is the action of the court in giving the following instruction to the jury: "In construing the letter written August 4th by Balfour, Guthrie & Co., and its answer upon August 22d, they must be construed together, and in the light of all the surrounding circumstances." The principal objection to this instruction is that it left the construction of the letter of August 22d to the jury, when it should have been construed by the court as a matter of law. The question as to whether the defendant authorized and empowered the plaintiffs to settle for it the dispute in regard to the lumber at the port of discharge is an important point in the case, and plaintiffs' authority in the premises is contained in the letter of August 22d. The previous oral conversation between Burns and Williams was merged in the writing, so far as it related to the power or authority of the plaintiffs to act for the defendant in settling the controversy. It is admitted by Williams, and he so testifies, that, after he returned to his office, at Burns' request and for the purpose of putting plaintiffs' authority in writing, he added the clause to the letter of August 22d in reference to the quality of the cargoes of the Airlie and the Ballochmyle, and the statement that "we will be satisfied with any settlement you may make for us in adjusting the matter at point of destination." So that the question of plaintiffs' authority must be determined from the letter, and its construction, like that of any other writing, was a question for the court, and not for the jury: 11 Enc. Pl. & Prac. 78 et seq.; Long Creek Bldg. Ass'n v. State Ins. Co., 29 Or. 569, 46 Pac. 366; Goddard v. Foster, 17 Wall. 123, 21 L. Ed. 589; Battershall v. Stephens, 34 Mich. 68. By the charge of the court, however, that question was submitted to the jury, and they were left to construe the letter, and to determine, as a matter of fact, whether by it the defendant authorized the plaintiffs to settle the controversy about the cargoes of the two vessels. The letter of August 22d should, of course, be construed in connection with that of August 4th, Williams' testimony as to how the latter clause came to be added, and the surrounding circumstances; and, when so construed, it seems to us clearly to authorize the plaintiffs, through the Chilian firm, to settle or adjust the matter, and, if necessary, to appoint agents at the port of discharge to act for them in the premises. It is argued that the letter authorized the plaintiffs only to settle the matter, and that they could not delegate their authority to some one in Chile, although they might employ persons there to ascertain the facts and report to them. But it must be remembered that the controversy as to the quality of the lumber, to which the letter refers, was at the port of discharge, and not in Portland, and that under defendant's contract it was bound to appoint a representative on the spot to attend to and settle the same. It was this contract that Burns was insisting that Williams should comply with by sending an agent or representative to Chile, or by appointing some person there to act for defendant. Williams declined to do so, and agreed to be satisfied with any settlement that plaintiffs might make "at point of destination." He knew at the time that plaintiffs had an allied house in Chile, and that all of their business on that coast was done through such house. He must therefore necessarily have intended that the settlement should be effected in the same way. It is next insisted that the court erred in refusing to withdraw from the jury the question of fraud. It is urged in support of this position that the allegations of the answer are insufficient to constitute the defense of fraud, and that there is no proof if the allegations had been sufficient. As the case must be reversed and remanded for a new trial, defects in the answer, if any, may be cured by amendment; and, as the evidence may be different on another trial from that contained in the record, we shall pass this question without deciding. There are several other questions made in the briefs and argued by counsel, but as they are closely allied to the principal one discussed, and may not arise on another trial, we shall refrain from discussing them at this time. SMITH v. BROOKING et al. (Court of Appeals of Kansas, Southern Department, C. D. Dec. 15, 1900.) ATTACHMENT INDEMNIFYING BOND CONSTRUCTION. The facts stated in the opinion, and which were alleged in the petition, are held to present a case where the language of the bond sued upon should be interpreted in the light of all the surrounding facts as they existed at the time of its execution and delivery. (Syllabus by the Court.) Error from district court, Greenwood county; C. W. Shinn, Judge. Action by J. A. Smith against S. L. Brooking and others. A demurrer to the complaint by Edwin Tucker was sustained. Judgment entered for him, and plaintiff brings error. Reversed. A. L. Redden and James Shultz, for plaintiff in error. W. S. Marlin, for defendant in error Edwin Tucker. MILTON, J. This action was brought by the plaintiff in error to recover upon an indemnifying bond given by the defendants to the plaintiff in an attachment action brought in the district court of Greenwood county, Kan., by the Missouri, Kansas & Texas LiveStock Commission Company against William Freeman, M. J. Herrick, and D. H. Herrick. The defendant Tucker filed a demurrer, alleging failure of the petition to state a cause of action, and the demurrer was sustained, and a judgment for costs in favor of Tucker was entered. The petition alleged that the sheriff required an indemnifying bond for the reason that the property about to be levied upon was claimed by one W. H. Freeman and by the firm of Willis & Errickson, and that the levy was made upon the promise of the attaching creditor to execute and deliver the required bond; that the levy was made on July 11, 1895, and that on October 2d or 3d thereafter the plaintiff herein demanded the bond of indemnity which the commission company had theretofore agreed to deliver to him, and that thereupon the bond sued upon was given; that a few days before the execution and delivery of the bond the defendant S. L. Brooking, as president of the commission company, without the knowledge or consent of plaintiff, dispossessed the plaintiff of the attached property, to wit, 288 head of cattle, and appropriated the same to the use of that company; and that Brooking in fact sold the cattle, making it impossible for the plaintiff to repossess himself thereof, which he sought to do by demanding the same from Brooking. It was also alleged that after the bond was given the commission company dismissed the attachment suit. The petition further alleged that on the 20th day of February, 1896, William Freeman, the principal defendant in the attachment action, sued this plaintiff in the district court of Greenwood county to recover the value of 188 head of the attached cattle, and thereafter obtained a judgment against this plaintiff, which, with costs, amounted to $778.62, and which judgment this plaintiff was compelled to pay. It was also alleged that the plaintiff notified the defendants herein of the pendency of the said action against him; that they employed counsel to defend therein for him. The petition contains an allegation to the effect that it was the understanding and intention of the obligors on the bond to secure the plaintiff "against any loss or damage that he might sustain or suffer in case the attachment should be discharged or become void for any reason, and he be unable to return said attached property to the persons lawfully entitled to the same, on account of the acts or proceedings concerning said property, by the plaintiff in the action in which said order of attachment issued, to wit, the Missouri, Kansas & Texas LiveStock Commission Company, or any other persons." The bond, with the caption omitted, reads: "We, the undersigned principal and sureties, bind ourselves hereby to pay to J. A. Smith, as sheriff, all damages and costs that he may sustain as such sheriff by the reason of the detention or sale of the property levied on in this suit by virtue of a certain writ of attachment herein, and now claimed as the property of W. H. Freeman, in an ac tion against said sheriff by said W. H. Freeman, in said court, for conversion, and inGemnifying said sheriff for release of said levy against all persons whomsoever. S. L. Brooking, President M., K. & T. L. S. Com. Co. S. L. Brooking. Edwin Tucker." It is contended by counsel for plaintiff in error that the bond must be interpreted in the light of the surrounding facts existing at the time of its execution and delivery, and the following cases are cited in support of the contention: Griffiths v. Hardenbergh, 41 N. Y. 464; Bank v. Brigham, 61 Kan. 727, 60 Pac. 754. In the latter case the first paragraph of the syllabus reads: "The real nature and object of an instrument of writing, which, on its face, appears doubtful or ambiguous in meaning, may be shown by evidence of the inducing causes to the making of it, and of the facts and circumstances surrounding the transaction and involving the parties in their execution of the paper." Under the allegations of the petition the only language of the bond requiring consideration reads, "and indemnifying said sheriff for release of said levy against all persons whomsoever." It is, in effect, alleged that the bond was given at a time when the parties to it were well aware that by the act of Brooking the attached property had passed entirely from the control of the sheriff, and the language of the bond respecting the release of the levy might have been employed in contemplation of the early dismissal of the action by the plaintiff therein on account of such fact. In the state of facts set forth in the petition, the defendant, William Freeman, had a right to demand from the sheriff a return of the attached property upon the dismissal of the action, and a right to recover damages if the same should not be delivered. The fact that the defendants employed counsel to defend for the plaintiff herein when he was sued by William Freeman for the recovery of the value of part of the attached cattle indicates a recognition at that time of their responsibility under the bond. Whether or not the light of all "the facts and circumstances surrounding the transaction and involving the parties in their execution of the paper" would disclose a right of recovery on the part of the plaintiff is a question which ought to be determined by a trial of the action. We think the demurrer to the petition should have been overruled. The judgment of the district court will be reversed, and the cause remanded, with instructions to overrule the demurrer to the petition. PARKER v. GILMORE et al. (Court of Appeals of Kansas, Southern Department, C. D. Dec. 15, 1900.) APPEAL EVIDENCE-ACTION ON NOTE. 1. Where special findings, necessary to the support of the general verdict, are contrary to the evidence, the verdict cannot be upheld. 2. The mere possession of a negotiable instrument, produced in evidence by the indorsee, imports prima facie that he acquired it bona fide, for full value, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity, and that he is the owner thereof, and entitled to recover the full amount against all prior parties. (Syllabus by the Court.) Error from district court, Sedgwick county; D. M. Dale, Judge. Action by Walter Parker against Sheridan Gilmore and others. Judgment for defendants, and plaintiff brings error. Reversed. J. V. Daugherty, for plaintiff in error. Amidon & Conly, for defendants in error. MILTON, J. The plaintiff in error, as plaintiff below, sought by replevin to recover the possession of a pacing stallion, called "Wichita Tom," which he claimed under a chattel mortgage, and which had been seized by Rufus Cone, as sheriff of Sedgwick county, Kan., under an order of attachment issued in an action brought in that county by Sheridan Gilmore against Robert Reed. The mortgage was executed on June 18, 1895, in Wichita county, Tex., by A. W. Reed, a resident of that county, and was delivered by him to the City National Bank of Wichita Falls, Tex., to secure the payment of a promissory note given that day by Reed to the bank for the sum of $238.48, and payable 12 months after its date. The mortgage stated that the note was given as a renewal of a note executed by Reed to the plaintiff in error on July 17, 1891, and that the last-named note was secured by a chattel mortgage upon the said stallion. The mortgage in the present action was duly filed for record on the next day after its execution, and the note secured thereby was subsequently duly indorsed and delivered to the plaintiff. The mortgage was in the form of a trust deed, one Frank Dorsey being the trustee, and the Bank of Wichita Falls the beneficiary. The mortgage provided that, if for any reason the trustee should be unwilling or unable to perform the duties therein conferred upon him, then the holder of the note might appoint a substitute. Dorsey died before the commencement of this action, and no substitute was appointed by the plaintiff, the holder of the note. The claim of the defendant Gilmore, upon which his attachment action was based, was for money advanced for entrance fees at various races where the mortgaged horse was entered, and for the expenses of transporting the horse from place to place. At the time the horse was mortgaged it was in Hill county, Tex., in charge of Robert Reed, a brother of the mortgagor, and the arrangement whereby Gilmore furnished the money was made between him and Robert Reed, and probably two or three months after the filing of the mortgage. It was agreed between Robert Reed and Gilmore that the lat |