Opinion of the Court.

ton, speaking for the court, said: "The contract which is sought to be specifically executed ought not only to be proved, but the terms of it should be so precise as that neither party could reasonably misunderstand them. If the contract be vague or uncertain, or the evidence to establish it be insufficient, a court of equity will not exercise its extraordinary jurisdiction to enforce it, but will leave the party to his legal remedy." 2 Wheat. 336, 341. So this court has said that chancery will not decree specific performance, "if it be doubtful whether an agreement has been concluded, or is a mere negotiation," nor "unless the proof is clear and satisfactory, both as to the existence of the agreement and as to its terms." Carr v. Duval, 14 Pet. 79, 83; Nickerson v. Nickerson, 127 U. S. 668, 676; Hennessy v. Woolworth, 128 U. S. 438, 442.

For these reasons, we are of opinion that the contract set forth in the bill for specific performance has not been so clearly and satisfactorily proved as to justify a decree for specific performance of that contract; and that the decree for the plaintiff on the bill of the Dueber Company must, therefore, be reversed, and the bill dismissed.

The decree sustaining the plea to the bill against the Dueber Company for an infringement, and ordering that bill to be dismissed, is yet more clearly erroneous; for none of the evidence introduced by either party tended to prove such a contract as was set up in that plea. The only issue upon the plea and replication was as to the sufficiency of the testimony to support the plea as pleaded; and as the plea was not supported by the testimony, it should be overruled, and the defendant ordered to answer the bill. Stead v. Course, 4 Cranch, 403, 413; Farley v. Kittson, 120 U. S. 303, 315, 318; Equity Rule 34.

It is proper to add that the question whether the Dueber Company, by virtue of the relations and transactions between it and Dalzell, had the right, as by an implied license, to use Dalzell's patents in its establishment, is not presented by either of these records, but may be raised in the further proceedings upon the bill against the Dueber Company for an infringement.

Syllabus.

Decrees reversed, and cases remanded to the. Circuit Court, with directions to dismiss the bill for specific performance, and to overrule the plea to the other bill, and order the defendant to answer it.

MR. JUSTICE BREWER dissented.

WADE v. CHICAGO, SPRINGFIELD AND ST. LOUIS

RAILROAD COMPANY.

AMERICAN LOAN AND TRUST COMPANY v. WADE.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.

Nos. 247, 248. Submitted April 21, 1893. - Decided May 10, 1893.

The " after-acquired property" clause in a railroad mortgage covers not only legal acquisitions, but also all equitable rights and interests subsequently acquired either by or for the railroad company, the mortgagor. Where negotiable paper has been put in circulation, and there is no infirmity or defence between the antecedent parties thereto, a purchaser of such securities is entitled to recover thereon, as against the maker, the whole amount, irrespective of what he may have paid therefor. A railroad company contracted with a construction company to build and complete its railroad on a line designated on a map of the same, and to furnish and equip it, agreeing to pay for the same in stock and mortgage bonds, to be issued from time to time as sections should be completed. A mortgage was made of the road and property then existing and afterwards to be acquired. The construction company began work and completed a small section, for which it received the stipulated pay in stock and bonds. It parted with the latter for a good consideration, and they eventually came by purchase into the possession of W. No further section was completed, but work was done at various points on the line, and the construction company acquired for the railroad company rights of way through nearly or quite the entire route. Subsequently another railroad company acquired these properties through the construction company, and completed the road. Held, that W., being a bona fide holder of the bonds secured by the first mortgage, who had purchased the bonds in good faith, had through the mortgage a prior lien on the whole line

Opinion of the Court.

for the full amount of the face of his bonds, which was not affected by the fact that the new company acquired its rights and property, not directly from the first company, but through intervening conveyances.

THE case is stated in the opinion.

Mr. Frederick N. Judson, Mr. Charles S. Taussig and Mr. Samuel P. Wheeler for Wade and Hopkins, Trustees, appellants in No. 247 and appellees in No. 248.

Mr. Adrian H. Joline for Pratt, Trustee, the Mercantile Trust Company and the Central Trust Company, appellees in No. 247; and for Pratt, Trustee, appellant in No. 248.

MR. JUSTICE JACKSON delivered the opinion of the court.

The appellants, Belle N. B. Wade and Warner M. Hopkins, testamentary trustees of the estate of Robert B. Wade, as holders of fifty first-mortgage bonds of the Chicago, Springfield and St. Louis Railroad Company, on January 27, 1887, filed their bill in the United States Circuit Court for the Southern District of Illinois, for the purpose of enforcing a mortgage lien upon the property and railway of said company, extending from Springfield, Illinois, to East St. Louis, Illinois. The material facts of the case, as set out in the bill and as disclosed by the record, are as follows:

The Chicago, Springfield and St. Louis Railroad Company was incorporated January 17, 1883, under the general laws of Illinois, to build and operate a proposed line of railroad from Springfield to East St. Louis in that State. After surveying the route and designating the same on a map filed in the office of the company, and after securing certain rights of way on the line of the road, on March 3, 1883, it entered into a contract with the Empire Construction Company, of which one Wing was president and sole stockholder, to build, finish, and equip the proposed railway of the Chicago, Springfield and St. Louis Railroad Company within a stipulated time. The contract provided as follows:

"These articles of agreement made and entered into this

Opinion of the Court.

third day of March A. D. 1883, by and between the Empire Construction Company, a corporation of the State of Illinois, party of the first part, and the Chicago, Springfield and St. Louis Railroad Company, a railroad corporation of the same State, party of the second part, witnesseth:

"That for and in consideration of the covenants and payments hereinafter recited to be made by said party of the second part, said party of the first part, hereby for itself, its successors and assigns, covenants and agrees to furnish all the material and labor necessary to construct, iron, bridge, and complete the railroad of said party of the second part, as now surveyed and designated on a map filed in the office of the party of the second part, which railroad commences at a point on the Gilman and Clinton branch of the Illinois Central Railroad at the city of Springfield, and extends by way of Litchfield and Mount Olive to the bridge junction at East St. Louis, Illinois, a distance of about ninety-eight (98) miles, passing through the towns of Pawnee, Litchfield, Mount Olive, Alhambra, Marine, Troy, and Collinsville, with four and onehalf (4) miles of side track, (necessary to the places marked on said map for the business of the line at the time of the opening,) and to furnish the said railroad with depots, water tanks, and turn-tables, and to equip the same with engines and cars as hereinafter provided.

"The road and side tracks hereby agreed to be constructed are those on said map marked and specified only, and said map is hereby referred to for further particulars in this behalf; and the said road and side tracks are to be built in manner and according to the specifications and conditions. following; and the bridges, depots, water tanks, turn-tables, engines, and cars are to be those only also hereinafter mentioned in the specifications."

Certain specifications were made a part of the contract, but they need not be recited.

In consideration of the premises and of the undertakings of the construction company thus set forth, the railroad company agreed to pay therefor, in its negotiable bonds to be issued thereafter, the amount of $2,500,000, and $990,000 of its

Opinion of the Court.

capital stock fully paid and non-assessable. The bonds were to be secured by a trust deed or mortgage in proper form and duly executed by the company upon all its property, real or personal, owned by it or afterwards acquired, including its franchises of every kind. The construction company, its successors or assigns, were to receive from the trustee twentyfive bonds to the amount of $25,000, and eighty shares of capital stock of the value of $8000, as each mile of the road was constructed and completed, and on the chief engineer's certificate obtained therefor.

The contract further provided that the construction company, its successors or assigns, for the purpose of construction, should have the right to the full and free possession, use, and control of said railway, equipment, and property of the railroad company, as constructed, made or furnished under the agreement, or otherwise obtained, together with the right to use and operate said railway in the name of the railroad company under its franchises necessary thereto, for the transportation of persons and property, until the final and ultimate completion and acceptance of said railroad, without charge. therefor by the railroad company, and also at its own cost keep said railroad in good repair and condition, ordinary wear and tear excepted.

The contract further provided that if at any time a change of the route of the said road was necessary to be made, it was agreed that the same might be done on certificate of the chief engineer and approval of the president of the construction company, and thereupon all of the terms and conditions of the contract as to said modified route were to be the same as agreed in respect to the route then specified on the map.

In pursuance of this contract, and under proper authority of law, by vote of the stockholders of the railroad company, its board of directors was authorized to issue bonds of the company in the sum of $2,500,000, to pay for the building of the road, and to execute to the Central Trust Company of New York a mortgage upon all the properties and franchises, which were particularly described in the mortgage, as follows:

"All and singular the several pieces or parcels of land