clause evidently referred to works not already provided for (else it was needlessly inserted), and was meant to refer to future and different erections than those mentioned in the descriptive clause preceding, viz.: * "Together with all its brick plants, works now held or owned or leased by Montello Brick Company, or which may be acquired by Montello Brick Company, and all erections, extensions or additions to the same which may at any time hereafter be located or constructed on the premises." Indeed, the clause last quoted shows that, so far as brick plants are concerned (and it will be observed that the subject of the present controversy is a brick plant, and not a mere addition to a plant), the parties contemplated two classes of plants in such clause, viz.: First, the three plants then existing; and, secondly, those that might thereafter be acquired. The express mention of these two classes was an exclusion of others. And this implied exclusion is emphasized by the fact that in a later clause the attention of the parties was called to a third kind of plant, viz., when the lessee was authorized "to erect such other works as in the judgment of Montello Brick Works may be advisable." Moreover, the provisions for the insurance, maintenance, repair, and replacement undertaken by the lessee did not cover new plants which it might erect under the clause just quoted, so that if the contention of the petitioner is correct this new plant, which is claimed belonged to it as lessor, the lessee was not bound to insure, etc. It is therefore manifest that the words "to the same" in that part of the clause which reads, “and all erections, extensions or additions to the same which may at any time hereafter be located or constructed on the premises," refer to plants in esse, viz., "now held, or owned or leased by Montello Brick Company," and only to those particular in futuro ones, viz., which "may be acquired by Montello Brick Company." We are therefore of opinion that a new and separate plant built by the lessee was not included in the descriptive clause above quoted; and that clause only referred to the three plants of the lessor then existing and to such future ones as it might acquire. It was conceded at the argument that unless the clause we have quoted embraced the new plant here in question, and made it part of the demised premises, there was no obligation to return it by virtue of the subsequent clause, which has been quoted. And, indeed, the fact that the return clause which, so far as structures are concerned, only embraced "all improvements, additions and extensions" (words which more aptly describe that which was done to existing plants than designate wholly new erections), would seem to strengthen the construction we have placed on the main clause. After careful consideration, we are of opinion the order of the court should not be disturbed. That it did substantial justice we are certain, and to reverse it would take the ownership of this building from those who helped pay for it and give it to those who did not. In affirming this decree and treating this plant as an asset of the company, we are but enforcing the intent of those who, while the lessee was operating, treated it as an asset of that company. The petition to review is therefore dismissed. In re CINCINNATI IRON STORE CO. BEISER v. WESTERN GERMAN BANK. (Circuit Court of Appeals, Sixth Circuit. February 22, 1909.) Nos. 1838, 1839. 1. CORPORATIONS (§ 413*)-REPRESENTATION BY OFFICERS-GIVING SECURITY FOR BORROWED MONEY. The borrowing of money and giving security therefor by a corporation by its president, who was also a director and the largest stockholder, with the approval of an advisory committee created by the board of directors, who had knowledge of the general custom to make such loans and give such security, was by the implied authority of the directors, and the security so given is valid as against the corporation and its trustee in bankruptcy. [Ed. Note. For other cases, see Corporations, Cent. Dig. § 1648; Dec. Dig. 413.*] 2. ASSIGNMENTS (§ 12*)-VALIDITY-FUTURE EARNINGS UNDER EXISTING CON TRACTS. A bridge company, engaged in building bridges under contract, from time to time borrowed money from a bank for use in its business, for which it would give the bank a note and also a written assignment of the money to become due under a particular contract described, which assignments were entered on the company's books. The contracts were retained by the company, which made the collections thereon, the debtors not being notified of the assignments. At the time of the bankruptcy of the company the bank held a number of such assignments, and the company had collected payments thereon, which it had not paid over to the bank but used in its business; but other payments remained unpaid. Held, that the assignments were valid between the parties as to such payments, and as against the company's trustee in bankruptcy, who represented only general creditors. [Ed. Note. For other cases, see Assignments, Cent. Dig. § 20; Dec. Dig. § 12.*] 3. PLEDGES (§ 11*)---VALIDITY-DELIVERY OF POSSESSION. A bridge company borrowed money from a bank, and as security for its repayment pledged a quantity of structural iron then in its possession. The pledged iron was set apart in piles on the company's premises, and the piles were marked by numbers and taken possession of by a designated employé of the company as agent for the bank, who issued a receipt therefor as such agent. The transaction was in good faith, and the piles remained intact until the company was adjudged a bankrupt. Held, that there was sufficient delivery to pass the property, and that the pledge was valid. [Ed. Note. For other cases, see Pledges, Cent. Dig. §§ 31-35; Dec. Dig. § 11.*] Appeal from the District Court of the United States for the Southern District of Ohio. C. W. Baker and H. C. Busch, for appellant. Before LURTON and SEVERENS, Circuit Judges, and KNAPPEN, District Judge. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes KNAPPEN, District Judge. The Brackett Bridge Company, an Ohio corporation doing business at Glendale, Ohio, was adjudged bankrupt July 3, 1906. The Western German Bank claimed and was allowed preferential liens, under alleged equitable assignments from the bridge company, of payments to be made under construction contracts made by the bridge company with various parties, as well as upon a quantity of structural iron pledged by the bridge company to the bank. The case is brought to this court under both the appellate and revisory authority conferred by the bankrupt act. The fact that both remedies are invoked makes it unnecessary to consider which is, under the circumstances, the proper remedy, a subject which will be found discussed in various decisions of this court, from Cunningham v. German Ins. Bank, 103 Fed. 932, 935, 43 C. C. A. 377, to In re Doran, 154 Fed. 467, 468, 83 C. C. A. 265. No attack is here made upon the validity of the indebtedness claimed to be secured by the liens in question. The assault is made upon the validity of the assignments of the payments made under construction contracts, as well as of the pledge of the structural iron. The grounds of this assault will appear as the opinion progresses. 1. The first asserted ground of invalidity of the assignments and pledge is that they were not authorized by the board of directors. It is not alleged that the giving of these securities was beyond the authority of the corporation. On the other hand, it is expressly conceded in the briefs of counsel for the trustee that the corporation had the power to give the security. The notes containing the collateral assignments were signed on behalf of the bridge company by F. J. P. Brackett, president, and George A. Brackett, secretary, at least two of the notes being signed also by the members of the advisory committee hereafter referred to. The first of the assignments was made April 6, 1904. Others, either originals or renewals, were given from time to time until shortly before the bankruptcy. The president owned a very large majority of the common stock of the corporation, and was the practical bridge manufacturer and the general manager of the corporation. For several years before the bankruptcy, including the entire period covered by the securities in question, the president had been allowed practical charge of all the financial business of the company, including the borrowing of money, except that in 1903 the board of directors, by resolution, created a so-called advisory board "for the purpose of considering and passing on all contracts aggregating $5,000.00 or more and such other business of the company as might come before it." This board consisted of the president and two other members. There was but one director in addition to these three and the secretary. The method of raising money upon the securities was this: When the bridge company had a contract for the carrying out of which money was needed, it presented to the bank with its application for loan an assignment of the payments to be made under the contract. The money was loaned upon the strength of the assignment, passed to the credit of the bridge company, and by it checked out in the regular and lawful transaction of its business and for its direct benefit. The testimony is express and uncontradicted that the members of the advisory committee were familiar with the transactions in question, and that the notes and assignments were made after consultation with them. As already said, some of the collateral notes in question were actually signed by all the members of the advisory committee. It clearly appears that by the acquiescence of the directors and stockholders, and through the creation of the advisory board, the president, with the advice and assistance of that board, throughout the entire period covered by the securities in question assumed and exercised the functions of the board of directors with respect to the making of loans and the giving of securities, and that the directors knew of, and, at least impliedly approved, the general course of dealing on the part of the officers and the advisory board with respect to the borrowing of money at the bank and the giving of security therefor. The borrowing of the money upon the pledge of the structural iron was made in the same general way as that loaned upon the assignments of payments under construction contracts. The assignments and pledge in question had thus the implied, if not the express, approval of the board of directors of the bridge company, and the transactions in question were necessary to the operation of the business of that company. In these circumstances, the action of the officers in giving the assignments and pledge in question was as binding upon the corporation as if such action had been authorized by express resolution of the board of directors. Preston Nat. Bank v. Purifier Co., 84 Mich. 364, 381, 47 N. W. 502; Cunningham v. German Ins. Bank, 101 Fed. 977, 980, 981, 41 C. C. A. 609; Mining Co. v. Anglo-California Bank, 104 U. S. 192, 194, 26 L. Ed. 707; Sun Printing, etc., Ass'n v. Moore, 183 U. S. 642, 650, 22 Sup. Ct. 240, 46 L. Ed. 366; Sherman v. Fitch, 98 Mass. 59. The securities being valid against the corporation, so that it is estopped to deny their validity, the trustee in bankruptcy is equally estopped, as the trustee is vested with no better title to the bankrupt's property than the bankrupt itself possessed at the time it passed to the trustee. York Manfg. Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782. It must be held that the securities were issued by due authority. 2. The validity of the assignments of the payments under the construction contracts is assailed as being void as to creditors represented by the trustee: first, as being secret and unknown to other creditors of the bankrupt; second, for the reason that the assignor (the bridge company) retained (as alleged) full dominion and control over the assigned claims; third, that the alleged assignments are mere promises to pay out of the moneys obtained under the construction contracts; fourth, that no notice of the fact of the assignment was given to the debtors under the assigned contracts; and, fifth, that, if the assignments are valid at all, they are so valid only to the extent of the particular payments specified, and that such specified and assigned payments had been before the bankruptcy collected by the bridge company, leaving nothing for the assignment to operate upon. The facts necessary to an understanding of these objections are these: As security for the payment of each loan, the bridge company gave a note reciting the assignment as security, together with a separate instrument of assignment. The forms used in each case were the same, except in one particular hereafter mentioned. That used in connection with the loan on account of the Elizabethtown bridge is thus (with the exception noted) sufficiently illustrative. The note in that case contained this clause: "Having deposited or pledged as collateral security for the payment of this note, No. 1769, Hamilton county, Ohio, for $119,500.00 for the construction of Elizabethtown bridge" -this clause being followed by a power of sale; the assignment being in this language: "In consideration of $15,000.00 loan made to us this day by the Western German Bank, Cincinnati, Ohio, for four months, we hereby transfer to them our claim as follows-in course of construction at our factory or in the course of erection, contract No. 1769, Hamilton county, Ohio, $119,500.00; said loan to be paid out of the first money received on said claim and as received, except the first estimate." The exception above noted is that in each of the other assignments the words "except the first estimate" are omitted. In the case of each loan the assignment was entered in full upon the books of the bridge company, and, in advance of the payment over of the money, was given to the bank with a notarial certificate attached that "the above is a true and correct copy of the entry as made this day on the books of the Brackett Bridge Company, Cincinnati, Ohio." This assignment was not filed or recorded in any public office. The bank did not keep the assignments "secret," except in the sense that they were not made public. The bridge company retained possession of the contract, and payments were made directly to it, the debtors under the construction contracts not being notified of the assignment. The bank had obviously the power to make the collections itself, had it desired to do so. The bridge company was under obligation to turn over to the bank all payments made as fast as collected. The bank expected that such course would be taken. In fact, the greater part of the payments made up to the time of the bankruptcy had been retained by the bridge company, and used in the regular transaction of its business. Large amounts, however, still remained unpaid upon the contracts in question, and it is upon these unpaid amounts that the lien of the bank was claimed and allowed. The trustee represents only general creditors, none claiming preferential liens, and none having fastened or attempted to fasten upon the property in question by attachment or other special proceeding. The actior of the bank in making the loans, and in its treatment of the security, is shown to have been in good faith and with the design only of protecting its own interests in connection with the loans. It should be noted that no question of preference under the bankrupt act is involved, it being conceded that all the preferences claimed were made more than four months before bankruptcy intervened. The subject of the validity of an assignment of the nature of those in question here is not in Ohio regulated by statute, and we are cited to no decisions of the courts of that state declaring an assignment of this nature invalid as between the original parties thereto. The validity of the assignments must therefore depend upon equitable principles applicable to the general law. It may be said, in passing, that |