I do not understand the facts of the case in all respects as they are recited in the opinion of the majority of the Court, nor do I concur in the conclusions therein announced. The money which was in the hands of Williams, as the treasurer of the plaintiff, although it had been raised for the purpose of complying with the agreement entered into between the plaintiff and the railroad company, had not been appropriated by the plaintiff to that purpose. It was known to the directors of the plaintiff that Williams was the equitable owner of the larger part of the stock of the railroad company, and that he had expended the sum of money which came to his hands as treasurer, in works on the railroad, but the railroad company had neither acknowledged the receipt of the money, nor had it executed the bond conditioned for the maintenance of the railroad, for the period of ten years, as contemplated by the parties. At the time when the first note was given, this was the condition in which the matters appeared: Williams was the equitable owner of nearly all the stock of the railroad company; he had expended the money which came to his hands, as the treasurer of the plaintiff, in improvements on the railroad. The plaintiff had not expressly authorized its expenditure; the railroad company had not in its corporate capacity either received or acknowledged the receipt of the money, or discharged the plaintiff from liability to pay the same. Nor had it executed the bond for the maintenance of the road as agreed upon. The plaintiff had demanded from Williams the payment of the money received by him as the treasurer of the plaintiffs, and he not being prepared to pay the same, gave the first note, in which it is recited that it was given for that amount of the funds of the plaintiff held by Williams as the treasurer of the plaintiff. Upon the maturity of that note, the note in suit was made. Nothing transpired between the giving of the first and second note, which, in any respect, altered the rights or liabilities of the parties; nor has anything having that effect *359since occurred. The transfer of the stock to Stanford and others, with notice of the arrangement between the plaintiff and the railroad company, and of the transactions between tho plaintiff and the defendants and their respective rights and liabilities, did not in any manner relieve the latter from such liabilities. Those who held the stock when the notes were given knew all the facts relating to the controversy, and since the transfer of the stock, the railroad company has taken no action in the premises. I see no ground upon which to question the liability of the defendants on the first note; and if they were liable on that, they are also liable on the second note, which was merely a renewal of the first note.
It is claimed that the first note was given in lieu of the bond which the plaintiff required from the railroad company; but I do not understand that to mean that the note was payable only upon the condition and in the event that the railroad company should fail to maintain the railroad for the period of ten years; but the defendants expected, before the maturity of the note, to become the legal owners of the stock in the railroad, when the bond could be given by the railroad company, which the then legal holder of the stock objected to giving, on the ground that the bond would impair his security for the payment of the money for which he held the stock.
It is stated in the prevailing opinion that Williams, when examined as a witness, was asked “if he knew of any reason why the assent of the corporation plaintiff to the expenditure of this money had not been formally entered upon its records.” As I read the record that was not the question asked, but it was this: “State if you know any reason why it was not deemed advisable to publicly notice the order of payment.” The question as stated in the opinion assumes that the corporation had given its assent to the expenditure, while the question, as I construe it, does not contain that implication. In my opinion, the exclusion of the question was not error, for two reasons: It is not shown that the corporation had in fact given such assent, which for any reason had not been entered of record—if that is the mean*360ing of the words “to publicly notice the order of payment.” It would be improper to ask why a corporation had not entered an order which was not proven to have been made. The second reason is that it was stated by the witness that he had a conversation with Mr. Bryan and other directors of the plaintiff, after the money had been expended on the railroad, in.which they concluded “that it was not necessary to take final action in the matter because of difficulties existing with the dock company” about the payment of money by it to the railroad company.
I am of the opinion that the judgment and order should be affirmed.