The Superior times. [volume] (Superior, Wis.) 1870-1912, 1875-11-04
Pacific in Carlton county, and to'place on the
same by the first Of January, 1878, two loco
motives and forty platform cars, for the con-

same by the first Of January, 1878, two loco
motives and forty platform cars, for the con-
sideration specified, which included the
$3.50, 900 in the bonds of the plaintiff county.
1t was a part of this arrangement that $780,,
900 of these bonds should pass Immediately
into the hands of the firm OF Walbridge
Bros. & Sargent. The complaint states that
prior to May, 1872, small amount of work
was done by WaIbridge Bros and Sargent in
grubbing and clearing portion of the line
and beginning the excavation of some Of
the cuts, and getting our some ties: that
within about a month after the bonds of the
county were delivered to them they discharged
all their hands and stopped all work in the
construction Of the proposed road, and never
resumed work thereon, but aban-
doned the construction of the road entirely:
and that the little work done upon said road
is of no possible use to the county or its
inhabitants: and that not mile of road has
been completed nor single car orlocomotive
furnished. In June 26th, 1873, the county
board passed resolution extending the
time for the completion of the road for two
years from the first of July, 1873, and assent
ing to the agreement between the Superior
and St Croix and Northern Pacific Railway
Companies and Walbrdge Bros and
Sargent.
This is deemed sufficient reference to the
statements Of the complaint to render our
remarks ineligible on the second point raised
by the demurrer The county offers to return
to the Superior and St. Croix company the
stock which was issued to it in exchange
for It's bonds, and demands a rescission Of
the cantract on which aid was voted, and
also rescission Of the contract of June Goth
1878. and seeks to recover its bonds. The
ground upon which this relief is claimed is,
in brief, this. The building Of the road, it is
said, and the stock, were the consideration
for the aid voted: The Superior and St.
CrOix and Northern Pacific companies are
insovent and no benefit can ever accure TO
the county from what has been done by the
defendants. The scheme has utterly failed
and unless the contracts in question can be
rescnded and the bonds or their value re-
stored, the county will have to pay them with
out even having received any benefit from
them, the stock being utterly worthless and
there being a total failure of consideration.
The bonds being of negotiable nature, NAV
pass into the hands of innocent holders, when
no defence to them would be available; and
fraud will be perpetratcd upon the county if
the court does not interfere and order them
to be returned for cancellation.
It seems to US that these considerations
address themselves with great force to a court
of equity The application to a court of
equity, say the authorities for the rescission,
OF cancellation or deliverance up agreements
and securities is not founded upon an abso-
Lutte right, but is rather an appeal to the
sound discretion Of the court, which, in grant
ing or refusing the relief prayed, acts upon
its own notions of what is reasonable and
just under all the surrounding circumstances.
While we are to understand that the inter
ference of a court of equity in these cases is
a matter of mere discretion, this is not an
arbitrary and capricious, but a sound and
reasonable discretion, secm1aduo arbitouaa
doni J,tajcjs ] story Eq. Juris. Section 693.
Willards Eq Section 3 Oh. 4.
1t surely seems reasonable and just in the
facts stated for court Of equity to exercise
its jurisdiction aud order a rescisson of the
contracts and return of the bonds to the
county; no part Of the road has been built,
the construction Of which was doubtless the
real consideration for voting aid to the com
panv, and the work has been abandoned
The defendants have no equitable right to
retain the bonds when they refuse or are
unable to perform their contract. The bonds
from their negotiable character are liable to
pass into the hands of innocent holders or
may be used for an improper purpose to the
injury of the country, and if a resort to
equity for the cancellation or delivering up
Of securities can be sustained on the grounds
Of protective justice and considerations off