vision in regard to the excess in said several particulars was omitted. It was asked that the contract be reformed accordingly. Evidence was introduced on this branch of the case by both parties. The court found that there was no sufficient proof made to authorize a reformation of the contract. This finding was clearly correct. Indeed, it appears to us that upon this issue the preponderance of the evidence, without considering the written contract, was with the plaintiffs.

The court construed the contract as meaning that wherever a cut or fill in any part of its length exceeded four feet, the whole of that part should be estimated at sixteen or seventeen cents per yard from the natural surface up or down, and that that part of the same cut or fill which was less than four feet should be estimated at twelve cents per yard. We believe this construction was correct according to the contract as written, and there being no showing that the plaintiffs understood it in any different sense, that construction was properly adopted. Affirmed.

HELTZELL

v.

CHICAGO AND ALTON R. R. Co.

(77 Missouri Reports, 315.)

In the absence of any statutory mode of service of a notice upon a corporation, when it cannot be had upon the chief officer or managing agent, service upon any officer, whose official relation to the governing body, or managing agent, or chief officer, would make it his duty to communicate the notice, will be sufficient. The secretary is such an officer.

Where materials are furnished for the construction of a railroad in carload lots, under separate and independent orders, no lien therefor can be acquired under article 4, chapter 47 of the Revised Statutes of 1879, for such car-loads as were furnished more than ninety days before the filing of the account claimed to be a lien, although others were furnished within that time.

Materials furnished to a contractor for, and used by him in the construction of, a railroad, are to be regarded as furnished to the railroad.

APPEAL from Audrian Circuit Court.

Macfarlane & Trimble for appellants.

If all the materials are furnished under one contract, or one request, one indivisible lien will be created, but when under several contracts or requests, each separate contract becomes a separate lien. It was a question of fact, to be submitted under proper instructions, whether there was only one contract or whether each load was a separate contract. Stine v. Austin, 9 Mo. 554; Viti v. Dixon,

12 Mo. 482; Livermore v. Wright, 33 Mo. 31; Phillips Mec. Liens, 88 324, 326; Merchard v. Cook, 4 Greene (Iowa), 115; Diller v. Burger, 68 Pa. St. 432.

S. M. Smith for respondent.

HOUGH, C. J.-The Kansas City, St. Louis & Chicago R. R. Co. is the owner of a railroad extending from Mexico, Missouri, to Kansas City, Missouri. The Chicago & Alton R. R. Co. was the contractor for building said road, and is now the lessee thereof; Moraghan, Sims & Co. were sub-contractors under the Chicago & Alton R. R. Co. for building a portion of said road; and this suit was brought against said sub-contractors, contractor and lessee, and owner, to recover the price of 460 barrels of cement sold by the plaintiffs to said Moraghan, Sims & Co. to be used in the construction of said road, and to establish a lien on said railroad therefor under the statute. The trial was before the court without the aid of a jury, and resulted in a verdict for the plaintiffs for $900.

The return of service of notice of the lien on one of the defendants, is as follows: "Served this notice in the city of St. Louis on the 5th day of October, 1878, by delivering a copy thereof to R. P. Tansey, secretary of the Kansas City, St. Louis & Chicago R. R. Co., the president thereof being absent from the city and could not be found." (Signed) " John Finn, sheriff city of St. Louis."

Six cars of cement containing eighty barrels each, and one car containing sixty barrels, making in all 540 barrels were furnished by the plaintiffs to the sub-contractors, of which forty or fifty barrels were returned by said sub-contractors to themselves at St. Louis. The testimony shows that all the cement charged for in plaintiffs' account was used in the construction of the road, and that part thereof was furnished more than ninety days before the 10th day of October, 1878, the day on which the lien was filed. There was also testimony tending to show that each car-load was a separate and distinct purchase.

The principal questions presented for determination relate to the service of notice on the Kansas City, St. Louis & Chicago R. R. Co., and the action of the court in refusing instructions numbered eight and ten, asked by the defendant, which are as follows:

8. If each bill of cement was furnished Moraghan, Sims & Co., by plaintiffs under a separate contract, then no such bill can constitute a lien on the railroad, unless it was furnished within ninety days next before the 10th day of October.

10. If the cement was ordered in car-load lots, each order being separate and independent of any other, and in like manner each invoice became due and payable upon shipment, or in any particular time after, then they were separate and distinct trans

actions, and not one contract, and the rule of the last item in the account giving life to the whole account, does not apply, and no lien exists for any material furnished more than ninety days prior to October 10th, 1878.

It is provided by law how and upon whom all writs of summons and all notices, orders and rules in the progress of any cause directed to a corporation, shall be served; but there is no statute of this State prescribing upon what officer, or officers of a domestic corporation notices shall be served which are required by law to be served before the institution of a suit in order to fix a lien or give a right of action. In the absence of any legislative enactment providing how such notices shall be served, it would seem reasonable to hold that when service cannot be had on the chief officer, or managing agent of the corporation, service on any officer whose official relation to the governing body or managing agent or chief officer of the corporation, would make it his duty to communicate such notice to such body, agent or officer, will be sufficient. We regard the secretary of a corporation as such an officer, and, therefore, hold the service of notice therein recited to be sufficient.

The two instructions above set forth should have been given, as they announce correct principles of law, and there was sufficient testimony upon which to base them. Livermore v. Wright, 33 Mo. 31; Allen v. Frumet Mining and Smelting Co., 73 Mo.

688.

It has also been contended in argument that as the law only gives a lien for the materials furnished to the railroad company, whose road is being constructed, the plaintiff could acquire no right to a lien for materials furnished by them to the sub-contractors, Moraghan, Sims & Co. Materials furnished to a contractor for the construction of a railroad, and used by him in the construction of such road are in the eye of the law furnished to the railroad.

For error comitted by the court in refusing to give the 8th and 10th instructions, asked by the defendants, the judgment will be reversed and the cause remanded. The other judges concur.

MYER & HAY

v.

DUPONT et al.

(79 Kentucky Reports, 416.)

Where a railroad company has contracted with a subscriber to its capital stock to apply the subscription to the construction of a particular part of its road, a contractor who has done the work on that part of the road under a

contract with the company has no lien on the subscription to secure the payment of his claim, unless he has contracted therefor, and the president and directors of the company are not liable for the appropriation of the subscription to the payment of other debts of the company so long as the subscriber does not complain.

If such a trust exists in favor of the contractor, he cannot enforce it without alleging that a sufficient amount to pay his claim remains in the hands of the company after constructing the portion of the road to which the subscription was to be applied.

APPEAL from Louisville Chancery Court.

D. M. Rodman for appellants.

H. C. Pindell for appellees.

PRYOR, J.-There is no question but the president and directors of the Elizabethtown & Paducah R. R. Co. can be made individually liable for a fraudulent, and even for a wrongful or illegal appropriation of the corporate funds of the company. The ques tion arises in this case, are the facts alleged in the petition sufficient to create such a liability. The subscription of one million of dollars made to the capital stock of the company by the city of Louisville was to be paid or realized by the issuance of the bonds of the city, the bonds to be sold by the president and directors, and when sold the proceeds to be paid to the commissioners of the sinking fund of the city, and to be paid by these commissioners to the president of the company upon or for work in the construction of forty-five miles of continuous road, beginning at the city of Louisville. In other words, the money was to be paid as the work progressed, one half to be paid when the chief engineer certified that this much is due for work completed on the first thirty miles of the road, beginning at Louisville, and the other half to be paid upon a similar statement by the engineer that the same is due for work actually done on the remainder of the road; and if the amount so dedicated to the construction of either part of the road shall be more than is necessary for that purpose, it may be applied to the construction of other parts of the road. The company was also required to execute an obligation to the effect that the proceeds of the bonds would be thus applied, and in no event, as provided by the ninth section of the ordinance constituting the contract between the parties, was the subscription of stock to be subjected to the present mortgage of the Elizabethtown and Paducah road.

The object of the city of Louisville was to secure the application of the funds subscribed to the construction of the road next to the city, and for this purpose the sinking-fund commissioners were required to retain possession of the funds, and pay them out to the president as the work progressed, in the manner specified by the ordinance.

After this contract had been made by the company and the city,

in pursuance of the act of February 18th, 1873, the present appellants entered into a contract with the railroad company, by which they undertook to construct two sections of the road within thirty miles of the city for $68,000, to be paid them as the work progressed, the company retaining fifteen per centum of the amount actually due until their entire contract was completed. It is alleged that the company had in its possession a sum sufficient out of the proceeds of the bonds to pay them in full; that they had completed their contract, and there was still due them $13,000; that it was the duty of the directors to have paid them out of this fund; but in disregard of that duty they had fraudulently and illegally taken the money, and paid it as interest on the old mortgage of the Elizabethtown & Paducah R. R. Co., not leaving enough to pay any part of the balance due the appellants. That the company had gone into bankruptcy, was insolvent, and the president and directors, by reason of their wrongful and fraudulent acts, were personally liable, etc. The contract made between appellants and the company is made part of the petition. This contract prescribes the manner in which the work is to be done, the mode of payment, etc., but contains no stipulation by which the proceeds of the bonds in the hands of the sinking-fund commissioners are assigned to the appellants, or any lien given them on this fund to secure its payment. The city of Louisville is not complaining or a party to the action, nor is there any allegation that the road has not been completed, or the work done as agreed on by the company and the city; but, on the contrary, the legitimate inference from the facts stated is, that the road has been completed, and the proceeds of the bonds, or a part of them, applied in discharging the debts of the corporation. The contract between the city of Louisville and the appellees or the railroad company created no trust in favor of the contractors by reason of work done on this particular part of the road. It is true the fund belonged to the corporation, and when diverted from its legitimate purpose by the directors-that is, used for purposes other than the construction of the road, or in payment of debts due by the corporation-the directors would have been individually liable.

The appropriation of this fund to the construction of a particular part of the road was to secure the city of Louisville, and when the contract between the city and the railroad company has been complied with, the contractor has no right to complain. He may have contracted upon the faith that this fund would build the road the distance contemplated, and that the subscription would insure the solvency of the corporation; still he had no lien upon the fund or the right to demand that the money paid him by the company should come from the proceeds of the Louisville bonds.

These appellants were being paid monthly by their contract with the company, when the company was not entitled to receive