DISSENTING OPINION.
Beard, J.In the conclusion announced by the majority I cannot agree, as I think it is reached in the face of the rule so often emphasized by this Court, that the concurrent finding of facts by the Master and Chancellor is as conclusive as the verdict *23of a jury, and, like the latter, will not be disturbed if there is any material evidence to support it. Not only is this rule of practice imposed by this Court upon itself, but the duty of the Court of Chancery Appeals to observe it, has been more than once enforced by a reversal of decrees pronounced by them in disregard of it.
This Court, after a careful and painstaking examination of the record. in this cause, at the September term, 1894, pronounced a decree in which every material issue was found in favor of complainants, and, among other things, adjudging that complainants had fully complied with the contract of construction, and were entitled to receive from the city of Knoxville the bonds with which it had agreed to pay off its subscription to the capital stock of the railroad company; but, as some question was made as to the ability of the complainants to deliver the certificates of stock to which the city would be entitled on payment, the cause was remanded to the Chancery Court in order that the Clerk and Master might ascertain and report whether, at the time of the filing of the bill and of the rendition of that decree, complainants were able to make such delivery. In response to the order of reference made upon the procedendo from this Court, the Clerk and Master of the Chancery Court of Knox County reported the fact to be that, at the two dates mentioned, the complainant, the construction company, had possession of and was able to deliver the 2,250 shares of *24common stock for which the city had subscribed, and with this finding the Chancellor concurred.
This was. the fact about which this Court desired information, and I insist that this concurrence was binding on this Court and the Court of Chancery Appeals, if there was any material evidence to support it. That there was such evidence is conceded in the opinion of the latter Court, to be found in the testimony of Mr. Whitridge, who was a director, vice president, attorney, and financial agent of the construction company, and who had particular and personal charge of the affairs of that company, as well as of this railroad company, from a very early period of this enterprise. They say: £CThe fact that Whitridge had in his possession the stock books, and actually brought in and had canceled certificate No. 29 for 2,250 shares, properly signed by the officers of the railroad company, taken in connection with his statements, would, uncontradicted and not changed by other facts as clearly proven, be evidence strongly supporting the findings,” etc.
It is only by sifting the record, balancing statements, and resorting to documentary testimony which I think was clearly incompetent, and by rejecting as unworthy of credit the testimony of the only witness who testifies from his own knowledge, that that Court reaches the conclusion, not that there is no material evidence in support of this finding, but that i£ Whitridge’s statement was a willful misrepresenta*25tion or a misconstruction of what is shown beyond doubt to have been done. ’ ’
It would serve no valuable purpose to go into this record, but I am satisfied that by so doing it could, upon competent and credible testimony, be made apparent that shares of both common stock and preferred stock (as to the lack of power to issue this preferred stock, I agree with the majority), sometimes ear-marked and at other times not, but never subscribed or paid for by anyone else, sufficient to deliver to the city of Knoxville, and kept with a view to such delivery, was always under the control of either the railroad company or of the construction company, to whom the subscription of Knoxville was, at an early day, assigned, or of an assignee of the latter company holding with full knowledge of the city’s rights and in subordination thereto, and that, at the dates mentioned in the decree of this Court of September term, 1894, the certificates evidencing the city’s share of common stock were in the possession of the construction company, with both physical and legal ability on the part of that company to deliver them to the city.
I also think that it could be made good as a fact that it was never the intention of either of those companies to abandon the contract of subscription of Knoxville, and as a matter of law, that nothing that was done by either amounted to a rescission of this contract or to a conversion of the shares of stock for which the city had subscribed. *26No good, however, can be accomplished by such an investigation, as it could not now change the result effected by the majority opinion.
This memorandum of dissent is filed largely for the reason that I fail to discover any legal ground for, or equities in, the defense, which, thus successfully prosecuted, relieves the city of Knoxville of a burden which her citizens voluntarily and by an overwhelming majority vote assumed, for the purpose of securing the railroad which the enterprise of complainants has brought to her doors, especially as when to maintain it, is at this late day to deprive complainants of the fruits of the decree pronounced by this Court, in which every material question was determined in their favor.
Snodgrass, C. J., joins in this dissent.