
    Howard Payson Wilds, appellant, v. St. Louis, Alton and Terre Haute Railroad, respondent.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    Railroads, mortgage by—Sinking fund—Contract.
    The defendant gave a first mortgage, in which was included a provision-that $13,600 was to be paid semi-annually out of the earnings of the road to the trustees of the mortgage, to be deposited in a trust company and kept as sinking fund for redemption of its bonds, which were to be bought as long as they did not reach 1Í0, but the interest on such bonds was to be paid by the company notwithstanding such purchase by the trustees and added to the fund. If the bonds went above 110, “no further payments shall be payable to said sinking fund,’" so long as they remained above said figure. St‘Id, that while the bonds were above 1Í0 the semi-annual payments ceased, but the payment of the interest on the bonds to the sinking fund by the company continued until the maturity of the bonds. Rafallo, J., dissenting.
    Appeal from order of general term supreme court, first department, affirming judgment for defendant.
    
      Thomas Thacher, for appellant, Howard Payson Wilds.
    
      Adrian Van Sinderen, for St. Louis, Alton and Terre Haute Railroad.
    
      
       Affirming 33 Hun, 668.
    
   Fitch, J.

“ The bonds so purchased shall he deposited with said trust company, and "be immediately stamped or indorsed as belonging to said sinking fnnd; but shall remain in force, and the interest thereon shall continue to be paid by the said St. Louis, Alton and Terre Haute Railroad company, and the amount of such interest shall he added to and applied as a part of the capital of the sink-' ing fund hereby established, and be invested in the purchase of other bonds in' the same manner as the semi-annual payments of twelve thousand and five hundred dollars herein provided for.”

To meet the emergency of an inability to buy the bonds at or below the prescribed rate the mortgage stipulated that, in such event, “the said money shall remain at interest until bonds can be purchased at public or private sale at such rate; and no further payments shall be payable to the .said sinking fund till the money so remaining in the said fund can be used in purchasing said bonds at such rate or under, when such payments of twelve thousand and five hundred dollars semi-annually, shall be resumed.”

The emergency thus contemplated actually arose. The ■price of the bonds went above the permitted purchase rate .after $636,000 of them had been bought and placed in the sinking fund. The semi-annual payments of $12.500 were thereupon discontinued; but the company intending to continue the payment of interest to the trustees upon the bonds held by the sinking fund, a preferred stockholder objected, and brought this action tp prevent such payment.

Two clauses of the sinking fund article, if literally read, clash, and need to be reconciled. The purpose to keep the bonds purchased valid and living obligations against the company, so far as the payment of interest is concerned, until their maturity is clearly and strongly expressed. Conceding even that the bonds themselves, immediately upon their, purchase, ceased to constitute any part of the corporate debt, and were practically extinguished, and that the provision for interest payments was only a mode of measuring and determining the amount of prescribed contributions to the sinking fund, those contributions, at least, are directed to be made so long as interest accrues upon the bonds treated as valid obligations. They are to “remain in force” for the purpose of interest payments, and those, whether deemed payable as interest strictly, or as contributions to the sinking fund, are payable until the bonds mature; and a default in the bonds outstanding as obligations, or in the payments due to the sinking fund by the terms of the mortgage, may be followed by proceedings in foreclosure under the provisions applicable in case of such default. 'The duty of continued payment of interest is thus entirely plain until confronted with the latter clause, which directs, in case the bonds appreciate beyond 110, and purchases cease, that “no further payments shall be payable to the said sinking fund ” until the permitted purchases can be resumed. The payment of interest upon the purchased bonds is as payment into the sinking fund, and so comes a collision between a command to pay interest until the bonds, mature, and one to cease payment before that if the bonds rise above the prescribed value. The natural and obvious, solution of the difficulty is suggested by the instrument, itself, and is that the payments referred to in the latter clause are the semi-annual payments of $12,500. The payments to be stopped are identical with those to be resumed, as indicated by the words “such payments;” and since-those to be resumed were expressly declared to be the $12,-500, it follows that those, and those only, were the payments to be discontinued.

This construction is fortified by another circumstance. While the bonds were below the maximum of purchase, both the interest payment and the gross payment were to be made. If, when the bonds reached 110, both payments were to cease, then upon the appellant’s construction, when they dropped below that value only one is to be resumed; and the interest payments, once stopped, are ended forever, and cease to be due when the precise circumstances again exist which made them at first payable. The principal argument against this construction is that it involves waste, because, while bonds cannot be purchased, and are drawing-seven per cent., the money on deposit in the trust company will draw but two per cent. There are two sufficient answers to this contention. When the plan was adopted, nobody foresaw or sought to provide against so great a reduction in the rate of interest as has since occurred, and when the contract was made the possible loss from difference of interest was not deemed important. But a further answer is found in the suggestion of the learned judge at special term, and cannot be better stated than in his own words, that “the safety of the money paid into a sinking fund is of more importance than the amount of interest it-might earn.” It would seem as if that lesson might have been readily learned from the financial history of the past, and have exerted a predominant influence upon the sinking-fund devised. Railroad mortgages are seldom made to be-paid. If the company is successful, they are often renewed,, and the money which might have been used for their discharge is largely spent in heavy salaries, increasing expenses, and questionable extensions of the fine. If the company is unsuccessful, the end is foreclosure and wreck. But where a mortgage is made to be paid, and the credit and market value of subsequent securities depends upon it, a plan like that devised in the present case is wise and prudent, even if it involves some loss of interest. The normal operation of this sinking fund, if the bonds had kept below 110, would have redeemed them all at maturity. If it fails of complete success, it is due to a partial suspension of its operation, but that should extend no further than the fair construction of the mortgage requires.

We think the courts below decided correctly that the interest payments to the sinking fund must continue until the maturity of the mortgage. The judgment should be affirmed, with costs.

All concur, except Rapadlo, J., dissenting, and Miller, J., not voting. _  