Here again the contract for the cars and the lettering antedated the existence of the lease or contract under which they were afterwards, in December, 1881, attempted to be brought by the schedule which the general manager then made out. But how were these 250 cars paid for? It is clearly shown by Mr. Anderson, the treasurer of the Michigan Car Company, that they were paid for by the Ohio Central Railroad Company; the mode of payment being by drafts of said railroad company on its assistant treasurer. These drafts were sent to the builders by the assistant treasurer of the railroad company along with receipts or vouchers for the payments, which the builders would sign, and return to the offices of the railroad. The remaining 150 cars, numbered 4,050 to 4,199, were built by the Peninsular Car Company under contract with and in the name of the Ohio Central Railroad Company, said contract bearing date February 11, 1881, and were paid for by the said railroad company; the builders receiving payment from H. P. Eells, the assistant treasurer of the railroad, and from the Commercial National Bank of Cleveland on drafts of the company. No instructions appear to have been given as to numbering or lettering these 150 cars, which were received and went into the possession of the railroad company in November, 1881.

It is urged on behalf of petitioner that the railroad company in making said contracts for this equipment acted, under the provisions of said leases, as the agent of the trustee. It is true that D. P. Eells makes that statement in deposition in a general way, but it is manifestly incorrect or untrue, because the contracts were in almost every instance made in advance of the creation of the so-called "agency." They antedated the leases which undertook to make the railroad company act as agent for the trustee.

Let us next consider the transactions which were had under Lease B, No. 2, executed March 1, 1882, which purported to lease to the Ohio Central Railroad Company 2,500 coal cars, 340 box cars, and 13 locomotives. The petitioner claims that 1,100 coal cars, together with the 13 locomotives and 340 box cars, were delivered by him to the company under this agreement, which, like the other leases, undertook to designate the equipment leased by Schedule A, thereto attached. The so-called "rental" to be paid under this lease was $180,000 annually, beginning on the 1st of March, 1885, and running to the 1st of March, 1894, both inclusive. This rental, for reasons stated in the petition, appears to have been reduced at some time to $100,000 per annum. When this instrument was executed neither the trustee, McGourkey, nor the parties who might afterwards become the holders of the railroad company's obligations, therein described and intended to be secured, either owned or possessed the cars and locomotives which the trustee purported to lease; nor was any schedule of the cars attached to the instrument at the date of its execution, but at some subsequent period (the exact time does not appear) there was made out and forwarded to said trustee by some one the following statement:

"Ohio Central Railroad Company. (Memorandum.)

-Which petitioner exhibits with said Lease B, No. 2, and claims to be a part thereof and descriptive of the equipment covered thereby; 1,400 of the cars embraced therein being Nos. 1,600 to 2,799, inclusive, and 4,000 to 4,199, inclusive, were embraced in Lease B, No. 1, and have already been considered. What is the history of 1,100 coal cars, numbered 4,200 to 5,299, inclusive, embraced in said schedule? On the 22d of October, 1881, the Ohio Central Railroad Company contracted with the Peninsular Car Company to construct said cars, which were to be delivered to the company at Toledo, during the latter part of 1881 and first of 1882. On the 15th of November, 1881, Hadley, the general manager of the railroad company, instructed said car company to number said 1,100 cars 4, 200 to 5,299, inclusive. On the 25th of November, 1881, when the cars were being delivered and received, the Ohio Central Car Trust Association, "Series B," was substituted as the contractor for said cars in place of the Ohio Central Railroad Company, under the following agreement, viz.:

"This contract of Oct. 22, 1881, is by mutual consent this day modified in the following particulars:

"1st. The Ohio Central Railroad Company is released from the same, and the Ohio Central Car Trust Association, Series B,' is substituted as the party of the second part.

"2nd. The number of cars to be manufactured is reduced from eleven hundred and sixty to eleven hundred.

"3rd. Payment for cars is to be made at the option of the second party in cash on delivery in lots of one hundred cars each, or in the paper of the second party, indorsed by Geo. I. Seney and Dan. P. Eells, at sixty days from the date of delivery of cars in lots as above at Toledo.

"In case of paper being given, interest is to be allowed at the rate of six per cent. per annum.

"THE PENINSULAR CAR WORKS OF DETROIT.

"By FRANK J. HECKER, Vice Pres't and Man. "THE OHIO CENTRAL RAILROAD Co.,

"By DAN. P. ELLIS, President.

"G. J. MCGOURKEY, Trustee.
"OHIO CENTRAL CAR TRUST, SERIES B.,
"By D. P. EELLS.

"Cleveland, Nov. 25, 1881."

The "Dan. P. Ellis" who signed said agreement for and in behalf of the Ohio Central Railroad Company is and was the same individual as "D. P. Eells," who executed it for the Ohio Central Car Trust Association, which was purely an ideal and imaginary concern so far as Lease B, No. 2, now under consideration, was concerned. That car trust under which these cars are now claimed was not then formed, and in respect to that there was no such Ohio Central Car Trust Association as that for which the said Eells undertook to agree with himself as president of the railroad company. This singular transaction occurring in advance of the execution of Lease B, No. 2, which formed, if formed at all, the car trust association, whose trustee now claims said cars under that lease, is open to much comment and unfavorable criticism. It presents itself in the questionable form of a preparation in advance to deal with property for which the company had contracted, and which was then being furnished it in some illegitimate or irregular way. Except 200 of said cars received in March, 1882, the entire number were received by the railroad company on and prior to February 9, 1882. How and by whom were they paid for? This does not. clearly appear. Notes to the amount of $489,500 were given the car company for the cars as each 100 were received by the railroad company. Said notes, except one for $44,500, given March 10, 1882, at 63 days, all bore date, and many of them matured prior to, March 1, 1882. They were in the following form:

"$44,967.25.

TOLEDO, O., Dec. 6, 1881. "Sixty days after date, the Ohio Central Railroad Car Trust Association, Series B, promises to pay to the order of Dan. P. Eells and Geo. I. Seney, forty-four thousand nine hundred and sixty-seven 25-100 dollars at the Metropolitan National Bank, New York. "Value received.

Certified Feb. 7, 1882. "METROPOLITAN NATIONAL BANK. “Ohio Central Railroad Car Trust Ass.

"By G. G. HADLEY, Agent.

-But by whom paid or out of what fund does not appear. Such of said notes as matured and were paid prior to March 1, 1882, were not paid out of the funds realized on the company's obligations secured in and by said Lease B, No. 2. In respect to the 340 box cars included in Schedule A to Lease B, No. 2, it does not appear how or from whom they were acquired by the. railroad company, nor how or out of what fund they were paid for. Many of them were received by and in the possession of the company before Lease B, No. 3, was executed. As to the 13 locomotives embraced in said schedule, the following facts appear: The locomotive called "Bucyrus" was an old engine that belonged to the Ohio Central Railroad Company. It was repaired in the company's shop, with the company's material, and by employes in the service and pay of the railroad, and was sold by the president of the company to said McGourkey, trustee. It had been repaired and returned to service prior to the execution of Lease B, No. 2. Four other locomotives included in

said schedule, being Nos. 39 to 42, inclusive, were built by the Ohio Central Railroad Company in its shops at Bucyrus, with its own material, and by its own labor; and after being completed and in the service of the company they were transferred to said car trust. The mode and method of doing this is shown in plaintiff's exhibit. The proceeds of the sale of these five engines, which were clearly the property of the company, were largely used by the president, Eells, in paying off a note of the railroad company, on which he was indorser. Locomotives numbered 31 to 35, inclusive, as shown by defendant's exhibit, were billed to Brown, Howard & Co., the contractors under the construction contract, who were bound to furnish $560,000 worth of equipment to the company, and were paid for by two checks and three ten-day drafts drawn by Hadley, the general manager of the railroad, on Watson H. Brown & Bro., of New York, bankers for Brown, Howard & Co. These locomotives were paid for on the 30th of December, 1881, and January 4, 1882, before car trust, Series B, No. 2, was executed or had any existence. The remaining locomotives, Nos. 36 to 38, inclusive, were billed to the Car Trust Association Ohio Central Railroad, under date of May 4 and 6, 1882, and appear to have been paid for by drafts of Brown, Howard & Co. on G. J. McGourkey, trustee Ohio Central Car Trust, at Metropolitan National Bank, New York; the date of payment being May 27, 1882.

Now, in the light of the foregoing facts relating to the equipment in controversy, and to the situation of the parties engaged in the transactions embodied in said lease contracts, what is the proper construction to be placed upon said instruments, and what is their true character? Are they what on their face they purport to be, "leases," by the trustee, or those represented by him, of equipment owned by him or them? Or are they merely mortgages of the Ohio Central Railroad Company, contrived and designed to cover rolling stock which it might subsequently acquire, and intended to secure to parties who would take its obligations called "Car-Trust Certificates," the repayment of the money advanced the company thereon? It is well settled that neither the name which the parties may give to an instrument, nor any particular provision, disconnected from all others, will determine the true character of the contract, but that the ruling intention of the parties, as gathered from the whole instrument, the situation of the subject-matter of the contract, and the circumstances surrounding the transaction, must be looked to in order to ascertain and determine its true character and meaning. Thus in Heryford v. Davis, 102 U. S. 235, a manufacturer of cars contracted to "loan" certain cars to a railroad company "for hire" at a stipulated price, payable in certain installments, for which the railroad company executed its notes, on the payment of which the car company was to "relinquish" the cars to the railroad company. It was also agreed that upon default on any of the notes the car company might, at its option, retake the cars and sell them, retaining for its own use all payments received up to that time, and keeping the amount unpaid out of the proceeds and returning the surplus, if any, to the railroad company. In construing this contract, Mr. Justice STRONG, Speaking for the court, said:

"It is the legal effect of the whole which is to be sought for. The form of the instrument is of little account. Though the contract industriously and repeatedly spoke of loaning the cars to the railroad company for hire for four months, and delivering them for use for hire, it is manifest that no mere bailment for hire was intended. * * * It appears equally olear to us that

the contract was not one for a conditional sale.

And after reciting the provisions of the contract the court proceed:

"In view of these provisions, we can come to no other conclusion than that it was the intention of the parties, manifested by the agreement, that the ownership of the cars should pass at once to the railroad company in consideration of their becoming debtor for the price. Notwithstanding the efforts to cover up the real nature of the contract, its substance was an hypothecation of the cars to secure a debt due to the vendors for the price of a sale."

In Frank v. Railroad Co., 23 Fed. Rep. 123, HALLETT, J., in discussing a contract of similar character, said:

"These instruments in the form of leases, and having somewhat the aspect of conditional sales, were a disguise of the real transaction between the parties. The rolling stock was not at any time owned or held by the parties assuming to lease the same, or by any one represented by such parties. Under the first contract the Philadelphia & Colorado Equipment Trust,' an association of shareholders to the amount of $500 each, furnished money with which the railroad company either bought or constructed cars and locomotives for its own use. In like manner, under the contracts with the Rio Grande Extension Company, the railroad company bought or constructed rolling stock for its own use with money furnished by shareholders through the Guarantee Trust and Safe Deposit Company, to be returned with interest from the payments made under the contract by the railroad company. Thus it appears that the payees of these instruments cannot stand in the character assumed by them of lessors of the rolling stock, and, in so far as they may have any position in the law, they are to be regarded as mortgagees of the property."

In the present case the instruments under which the petitioner claims were clearly not contracts of bailment, contemplating merely the use of the equipment by the railroad company. The provisions of the contracts are wholly inconsistent with such a construction. Neither can the contracts be regarded as conditional sales of the rolling stock described therein, for the reason that such rolling stock was not at the time owned or held either by the trustee or those whom he might thereafter represent as the holders of the obligations issued by the railroad company and intended to be secured in and by said instruments. These obligations, called "Car-Trust Certificates," but in reality the coupon bonds of the Ohio Central Railroad Company, were not executed and delivered as evidence of the purchase-money price of the rolling stock, which the railroad company was buying from the lessor, who had no such rolling stock to sell, but they were the evidence of the company's indebtedness for money advanced for its use. It is true that the fund so advanced was to be used in the purchase, construction, or acquisition of equipment for the railroad company, and the obligations of the railroad company given for the repayment of the funds so furnished were to be secured by a lien on the rolling stock of the company. The payees or holders of these obligations, or their representative, McGourkey, trustee, cannot stand in the charac