tucky, had, in 1877, a contract with the Covington, Flemings- burg & Pound Gap Railroad Company, in which he agreed to construct and equip, ready for running, parts of the road. The terms of the contract are not clearly shown, and there is some doubt as to whether the rolling-stock, when placed upon the road, was to be Quintard's or the railroad company's. One A. P. Berthourd held Quintard's power of attorney, and seems to have been the sole manager and controller of his interests. There was constructed in March, 1877, a few miles of this road ready for the rolling stock. One engine and tender were obtained by Quintard. Berthourd contracted in his own name for the cars in controversy. This contract is in these words, viz.:
This agreement between Barney & Smith Manufacturing Company, of Dayton, Ohio, of the first part, and A. P. Berthourd, of the second part, witnesseth: The said party of the first part has agreed and does hereby agree (on terms and conditions hereinafter contained) to construct for and deliver to the party of the second part, at Dayton, Ohio, on board cars, on or before March 15, 1877, the following cars, to-wit? One com- bined passenger and baggage car, one coal car, as agreed; said cars to be of the best material and workmanship, and to be built according to the specifications furnished by the party of the first part, and received into the qualified possession of the said party of the second part, upon the following terms and conditions:
First. Upon the construction of said cars, ready for delivery into the possession of the said party of the second part, said 'second party is, for each and every car, to pay to the party of the first part the sum of twenty- nine hundred and thirty dollars ($2,930) for the lot, (two cars,) as follows: $1,450.32 in cash, and note at 60 days from this date for $1,479.68, indorsed by E. S. Throop, and payable at Second National Bank of Cincinnati, Ohio, without interest. And for the deferred payments, to execute and deliver to said party of the first part the negotiable promissory notes of said party of the second part, payable at Second National Bank of Cin- cinnati, Ohio, and to include in each note interest at the rate of no per cent. per annum on the amount of the deferred payment for which such note is given.
"Second. No right, title, or interest in said cars, or any of them, (except the qualified possession, use, and control thereof as hereinafter provided) is to pass from said party of the first part or vest in said party of the sec- ond part until all of said notes, and any notes given in renewal of any of them, shall have been fully paid.
"Third. The said party of the second part is to have possession and use of said cars so long as the said notes given as above. provided, or their renewals, are promptly paid at maturity, as they severally become due, and they are to keep all the said cars in good order and repair; and if v.7,no.5-35
