Opinion of the Court.

presumption arising from the production of the coupons, that the plaintiff was prima facie the holder of them for value. The defendant did not show any want, or failure, or illegality, of consideration. By the passage of the first resolution of November 5, 1869, the board thereby subscribed for the stock. The transactions between the board, on the one side, and Mr. Joy, as president of the company, and the company, on the other side, before and at the time the bonds were finally delivered to the company, were an acceptance of the subscription. The statute, § 53, provided, that, on the making of the subscription, the bonds should be issued to the company, to pay for the subscription and for the stock agreed to be taken. When the bonds were delivered to the company, the transaction was complete, and the bonds, as they afterwards passed to bona fide holders, passed free from any impairment by reason of any dealing by the board with the stock subscribed for, to which the county became entitled by the issuing and delivery of the bonds. The board may have committed an improper act in parting with the stock, but that is no concern of a bona fide holder of the bonds or coupons.

It is further to be said, that if there was, in fact, any want of proper notice of the election, the omission was only an irregularity in the exercise of an express power to issue the bonds, an irregularity in respect to a step forming part of preliminary conditions, and that the failure of the municipality and of the tax-payers to enjoin the issue or use of the bonds, during the long period from the day of the election, September 13, 1869, until the bonds were registered in March, 1872, when they still belonged to and were in the hands of the company, coupled with the annual payment by the county, for ten years, of the interest on the bonds, are sufficient grounds for holding that the municipality is estopped from defending on the ground of such non-compliance with a condition precedent as is set up in this case, after the bonds have been negotiated for value by the company. The record of the proceedings of the board shows that a tax was levied to pay the interest which fell due January 1, 1871, while the company still held the bonds.

There was no error in overruling the demurrer to the evi

Opinion of the Court.

dence which the plaintiff had given to sustain his case at the time the demurrer was interposed, or in overruling the motion to instruct the jury at that time, that, upon the pleadings and proofs he was not entitled to recover. Upon such evidence, all of which was record evidence, admitted without objection, and involving no disputed question of fact, but only matters of law, the plaintiff was entitled to recover, as has been shown. For the same reasons, it was not error to instruct the jury, at the close of the trial, to find a verdict for the plaintiff. The only defences set up in the answer were those as to the notice of the election and as to the transfer of the stock to Joy. The first resolved itself into a question of law, and the latter was immaterial. The defendant did not ask to go to the jury on any question of fact, and, if a verdict had been rendered for the defendant, it would have been the duty of the court, under the views of the law above laid down, to set it aside.

In Pleasants v. Fant, 22 Wall. 116, 120, this court said, by Mr. Justice Miller, citing Improvement Co. v. Munson, 14 Wall. 442, 448, that “in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed." Those cases were cited in Herbert v. Butler, 97 U. S. 319, 320, and this court there said, by Mr. Justice Bradley: "Although there may be some evidence in favor of a party, yet if it is insufficient to sustain a verdict, so that one based thereon would be set aside, the court is not bound to submit the case to the jury, but may direct them what verdict to render." It is true, that, in the above cases, the verdict was directed for the defendant. But where the question, after all the evidence is in, is one entirely of law, a verdict may, at the trial, be directed for the plaintiff, and, where the bill of exceptions, as here, sets forth all the evidence in the case, this court, if concurring with the court below in its views on the questions of law presented by the bill of exceptions and the record, will affirm the judg

ment.

In Bevans v. United States, 13 Wall. 56, a verdict was directed

VOL. CXIII-16

Opinion of the Court.

for the United States, in a suit by them on the official bond of a public officer, and the ruling was sustained, the evidence for the plaintiff being all of it documentary, this court saying by Mr. Justice Strong: "The instruction was, therefore, in accordance with the legal effect of the evidence, and there were no disputed facts upon which the jury could pass."

The same rule was applied in Walbrun v. Babbitt, 16 Wall. 577, to the direction of a verdict for the plaintiff, after oral evidence which this court states "was received without objection, and about which there is no controversy," and on which it says it bases its decision. That was a suit to recover the value of goods transferred in fraud of the bankrupt law.

In Hendrick v. Lindsay, 93 U. S. 143, the Circuit Court directed the jury to find for the plaintiffs, in an action on a bond of indemnity, the plaintiffs' evidence being all of it documentary, and the defendant giving no evidence. This court said, by Mr. Justice Davis: "There were no disputed facts in this case for the jury to pass upon. After the plaintiffs had rested their case, the counsel for the defendant announced that he had no evidence to offer; and thereupon the court, considering that the legal effect of the evidence warranted a verdict for the plaintiffs, told the jury, in an absolute form, to find for them. This was correct practice where there was no evidence at all to contradict or vary the case made by the plaintiffs; and the only question for review here is, whether or not the court mistook the legal effect of the evidence."

In Arthur v. Morgan, at this term, 112 U. S. 495, after oral evidence for the plaintiff, there being no evidence for the defendant, the court below had directed a verdict for the plaintiff for the recovery of excessive duties paid under protest, to which direction the defendant had excepted, and this court, treating the question as one of law, as to the proper rate of duty, on undisputed facts, affirmed the judgment.

These decisions are controlling on the point.

Judgment affirmed.

Syllabus.

HARVEY & Another v. UNITED STATES.

UNITED STATES v. HARVEY & Another.

APPEALS FROM THE COURT OF CLAIMS.

Argued January 13, 14, 1885.-Decided February 2, 1885.

In this case, before reported in 8 C. Cl. 501, 12 Id. 141, 13 Id. 322, and 105 U. S. 671, the Court of Claims, 18 C. Cl. 470, awarded to the claimants $16,250.95, for labor done and materials furnished by them in constructing coffer-dams, and in performing the work necessarily connected therewith, and preliminary to the mason work for the piers and abutments referred to in the contract. That court proceeded on the view that the claimants had no right to rely on the testimony of experts introduced by them, as to the value of the work, but should have kept and produced accounts of its cost and expense; but it gave to the claimants the benefit of the testimony of experts introduced by the United States, as to such value, in awarding the above amount: Held, That the claimants could not be deprived of reasonable compensation for their work because they did not produce evidence of the character referred to, when it did not appear that such evidence existed, if the evidence they produced was the best evidence accessible to them, and it enabled the court to arrive at a proper conclusion.

On evidence thus rejected by the Court of Claims, this court awarded to the claimants, for the above-named work, $40,093.77.

The Court of Claims having awarded nothing to the claimants for loss and damage from the reduction by the United States of the dimensions of piers and abutments, made subsequently to the making of the contract for doing the mason work thereof, on the view that it had before made an allowance for such loss and damage, this court, being of a different opinion, allowed $4,574.80 therefor.

Under § 1091 of the Revised Statutes, and the ruling in Tillson v. United States, 100 U. S. 43, interest cannot be allowed on the recovery, and there is nothing in the special act of August 14, 1876, ch. 279, 19 Stat. 490, which authorizes the allowance of interest.

The facts are stated in the opinion of the court.

Mr. Enoch Totten for Harvey & Livesey.

Mr. Assistant Attorney-General Maury for the United States.

Opinion of the Court.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. This case was before this court at October Term, 1881, and is reported as Harvey v. United States, 105 U. S. 671. The history of it is there fully given, and, in connection with the reports of it in 8 C. Cl. 501, 12 Id. 141, and 13 Id. 322, what occurred in it prior to the decision of this court can be fully understood. The Court of Claims had dismissed the petition of the claimants, filed August 30, 1876, under the special act of Congress passed August 14, 1876, ch. 279, 19 Stat. 490. This dismissal involved the rejection of two items sued for in such petition (1) Labor done, and materials furnished, by the claimants in constructing the coffer-dams, and in performing the work necessarily connected therewith, and preliminary to the masonry work for the piers and abutments, $75,000; (2) Loss and damages resulting to the claimants in consequence of the reduction of the dimensions of the piers and abutments, made subsequently to the making of the contract, $33,600. The decision of the Court of Claims in regard to item (1) was, that the claimants had not shown that the written contract did not express the intent of both parties as to the coffer-dams, and that, even if that court were satisfied that the claimants executed the contract in mistake of their rights, there was no evidence that the defendants shared the mistake. Its decision in regard to item (2) was, that it would be disposed to regard the case, on the facts, as one for equitable interposition, for the purpose of further inquiry, and the ascertainment of the rights of the parties in equity, if it had jurisdiction, but that the statute did not authorize it to entertain those considerations, because, in the proceedings before it, it could hear and determine only claims for labor done and materials furnished by the claimants under their contract with the defendants.

This court held that the ruling of the Court of Claims in regard to item (1)-the coffer-dams-was erroneous, and that, by the actual contract between the parties, the claimants were not to do any of the work covered by the claim made by them under item (1), and that the written contract must be reformed accordingly.

As to item (2), this court held, that the Court of Claims had