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141
A3
v.18



j




THE LIBRARY



[HE UNIVERSITY



OF CALIFORNIA




GIFT OF
J. A. C. Grant



THE



AMERICAN STATE REPORTS,

CONTAINING THB

CASES OF GENERAL VALUE AND AUTHORITY,

SUBSEQUENT TO THOSE CONTAINED IN THE "AMERICAN
DECISIONS" AND THE "AMERICAN REPORTS,"

DECIDED IN THB

COURTS OF LAST RESORT

OP THE SEVERAL STATER

TED, REPORTED, AND ANNOTATED



BY A. C. FREEMAN,

AND THE ASSOCIATE EDITORS OF THE "AMERICAN DECISIONa



VOL. XVIII.



SAN FRANCISCO:
BANCROFT-WHITNEY COMPANY,

LAW PUBLISHERS AND LAW BOOKSELLERS.

1891.



Entered according to Act of Congress in the year 1891,

Br BANCROFT-WHITNEY COMPANY,
IB the Office of the Librarian of Congress, at



FH.MBB-ROLLINS EI.KCTBOTTPB COICPAJIT,
AMD 8TKKXOTYFKS.



AMERICAN STATE REPORTS.



VOL. XVIII.



SCHEDULE

showing the original volumes of reports in which the
cases herein selected and re-reported may be found,
and the pages of this volume devoted to each state.

PAGE.

ALABAMA REPORTS Vol. 89. 87-157

CALIFORNIA REPORTS Vol. 84. 158-257

CONNECTICUT REPORTS Vol. 58. 258-302

INDIANA REPORTS . Vol. 123. 303-347

IOWA REPORTS Vol. 79. 348-395

MICHIGAN REPORTS Vols. 77, 78. 396-484

MINNESOTA REPORTS Vol. 42. 485-529

MISSOURI REPORTS Vol. 100. 630-730

MONTANA REPORTS Vol. 9. 731-765

NEBRASKA REPORTS Vol. 26. 766-802

NEW YORK REPORTS Vol. 121. 803-873

NORTH CAROLINA REPORTS . . . Vol. 105. 874-922

TEXAS REPORTS Vol.76. 17-86

7



SCHEDULE



SHOWING IN WHAT VOLUMES OP THIS SERIES THE CASES

REPORTED IN THE SEVERAL VOLUMES OF OFFICIAL

REPORTS MAY BE FOUND.



State reports are in parentheses, and the numbers of this series In bold-faced figures.



ALABAMA. (83) 3; (84) 5; (85) 7; (86) 11; (87) 13; (88) 16; (89) la

ARKANSAS. (48) 3; (49) 4; (50) 7; (51) 14.

CALIFORNIA. (72) 1; (73) 2; (74) 5; (75) 7; (76) 9; (77) 11; (78, 79) 12; (80)

13; (81) 15; (82) 16; (83) 17; (84) 18.
COLORADO. (10) 3; (11) 7; (12) 13; (13) 16.
CONNECTICUT. (54) 1; (55) 3; (56) 7; (57) 14; (58) la
DELAWARE. (5 Houst.) 1.
FLORIDA. (22) 1; (23) 11; (24) 12.

GEORGIA. (76) 2; (77) 4; (78) 6; (79) 11; (80, 81) 12; (82) 14.
ILLINOIS. (121) 2; (122) 3; (123) 6; (124) 7; (125) 8; (126) 0; (127) 11;

(128) 15; (129) 16; (130) 17.
INDIANA. (112) 2; (113) 3; (114) 5; (115) 7; (116) 9; (117, 118) 10; (119)

12; (120, 121) 16; (122) 17; (123) 18.

IOWA. (72) 2; (73) 5; (74) 7; (75) 9; (76, 77) 14; (78) 16; (79) la
KANSAS. (37) 1; (38) 5; (39) 7; (40) 10; (41) 13; (42) 16.
KENTUCKT. (83, 84) 4; (85) 7; (86) 9; (87) 12.
LOUISIANA. (39 La. Ann.) 4; (40 La. Ann.) 8; (41 La. Ann.) 17.
MAINE. (79) 1; (80) 6; (81) 10; (82) 17.
MARYLAND. (67) 1; (68) 6; (69) 9; (70) 14; (71) 17.
MASSACHUSETTS. (145) 1; (146) 4; (147) 9: (148) 12; (149) 14; (150) 16.
MICHIGAN (60, 61) 1; (62) 4; (63) 6; (64, 65) 8; (66, 67) 11; (68, 69, 75)

13; (70) 14; (71, 76) 15; (72, 73, 74) 16; (77, 78) 18.
MINNESOTA. (36) 1; (37) 5; (38) 8; (39, 40) 12; (41) 16; (42) 18.
MISSISSIPPI. (65) 7; (66) 14.
MISSOURI. (92) 1; (93) 3; (94) 4; (95) 6; (96) 9; (97) 10; (98)14; (99) 17;

(loo) ia

MONTANA. (9) 18.

NEBRASKA. (22) 3; (23, 24) 8; (25) 13; (26) 18.

NEVADA. (19)3.

NEW HAMPSHIRE. (64) 10; (62) 13.

NEW JERSEY. (43 N. J. Eq.) 3; (44 N. J. Eq.) 6; (50 N. J. L.) 7; (51 N.

J. L.; 45 N. J. Eq.) 14.
NEW YORK. (107) 1; (108) 2; (109) 4; (110) 6; (111) 7; (112) 8; (113) 10;

(114) 11; (115) 12; (116, 117) 15; (118, 119) 16; (120) 17; (121) 18.
NORTH CAROLINA. (97, 98) 2; (99, 100) 6; (101) 9; (102) 11; (103) 14;

(104) 17; (105) 18.

OHIO. (45 Ohio St.) 4; (46 Ohio St.) 15.
ORXOON. (15) 3; (16) 8; (17) 11; (18) 17.





10 SCHEDULE.

PxntsnTASru. (115, 118. 117 Pa. St.) 8; (118, 119 Pa. St.) 4; (120, 121
Pa. St.) 6; (122 Pa. St.) 9; (123, 124 Pa. St.) 1O; (125 Pa. St.) 11; (126
Pa. St.) 12; (127 Pa. St.) 14; (128, 129 Pa St.) 15; (130, 131 Pa. St. ) 17.

RHOD* ISLAND. (15) 2.

SOUTH CAROLINA. - (26) 4; (27, 28, 29) 13; (30) 14; (31, 32) 17.

TENNESSEE. (85) 4; (86) 6; (87) 10; (88) 17.

TKXASU (68) 2; (69; 24 Ter. App.) 5; (70; 25, 26 Tex. App.) 8; (71) 10;
(27 Tex. App.) 11; (72) IS; (73, 74) 15; (75) 16; (76) 18.

VKBMONT (60) 6; (61) 15.

VIRGINIA. (82) 3; (83) 5; (84) 10; (85) 17.

WEST VntoiNiA (29) 6; (30) 8; (31) 13.

WISCONSIN. (69) 2; (70, 71) 5; (72) 7; (73) 9; (74, 75) 17.



AMERICAN STATE REPORTS.

VOL. XVIII.



CASES REPORTED.



NAME. SUBJECT. REPORT. PAGE.

Adams v. Iron Cliffs Co ........... Contr'ib. negligence., 78 Mich. 271 ... 441

Alabama Great S. R. R. Co. v. \ Carrifn ^_ . 89 Ala . 2 94.. .. 119

Inomas ..................... \

Alston v. Hawkins ............... Payment .......... 105 N. C. 3 ...... 874

Anderson v. Minneapolis St. R'y \ Street-railway co. ) , Minn 490 525

Co ......................... \ negligence, \

Anonymous ...................... Divorce ........... 89 Ala. 291 ...... 116

Attorney-General v. Common ) ~, t - no vr-u KAK. AKQ

Council of Detroit ........... flections .......... 78 Mich. 545 . . . . 458

Bain v. Richmond etc. R. R. Co. . . Taxation .......... 105 N. C. 363 - - 912

Barber Asphalt P. Co. v. Hunt ____ Mun. corporations. . 100 Mo. 22 ....... 530

Bassett v. Budlong ____ . .......... Reservations in deed. 77 Mich. 338 .... 404

Beard v. Illinois Central R'y Co. . . Carriers of goods. . 79 Iowa, 518 .... 381

Becker v. Keokuk Water- works. ..Mun. corporations.. 79 Iowa, 419.... 377

Bloomington, City of, v. Smith. . ..Mun. corporations.. 123 Ind. 41 ...... 310

Bollongv. SchuylerNat. Bank ____ Judgm't estoppel . . 26 Neb. 281 ..... 781

Born v. First National Bank ...... Checks ............ 123 Ind. 78 ...... 312

Brinkley v. State ................ Murder .......... 89 Ala. 34 ...... 87

Bullitt v. Farrar ................. Fraud ............ 42 Minn. 8 ...... 485

Burke v.Hance .................. Garnishment ...... 76 Tex. 76 ...... 28

Cannon River Mfrs.' Ass'n v. j Vendor and ) 42 Minn 11 497

Rogers ...................... { purchaser. \

Carder v. Culbertson ............. Probate jurisdicfn . 100 Mo. 269 ...... 548

Caswell v. Hazard ................ Trade-marks ...... 121 N. Y. 484 - - 833

Catlin v. Wilcox Silver Plate Co. . .Foreign receiver ____ 123 Ind. 477 ..... 338

Chaffee v. Telephone etc. Co. ... | ^^q^escence. \ 77 Mich. 625. ... 424



AttorneyandclUnt.VXInA. 143 ..... 320



Cleary v. Folger ............... er. <* Cal ' 316 ...... 187

Connecticut F. Ins. Co. v. Kinne. .Amendments ...... 77 Mich. 231 .... 398

Connelly v. Masonic Mut. B. Ass'n. Voluntary ass'ns... 58 Conn. 552. . . . 296

Consumers' Gas Co. v. Kansas ) .,. inn vr~ w KR

City Gaslight etc. Co ......... f^W* ............ 100 Mo. 601 ...... 563

11



12 GASES REPORTED.

Bun. SUBJECT. REPORT. PAOB.



Cookv. Houston eta Co........ j Ma ^^ e ^f i \ 76 TeT ' 353 ..... 6 *



Copeland v. Dwelling-house Ins. \ Inaurance ^ ,. 77 Mich . 554.. .. 414

i/o. ......................... j

Cottrill v. Krum ................. ^VacZ ............ 100 Mo. 397 ...... 549

Craig v. Van Bebber ............. Infanta ........... 100 Mo. 584 ...... 569

Davis v. Robert .................. Contracts of lease .. 89 Ala. 402 ...... 126

Dowdr. Watson ..... ......... | Pre8Umpti n ^ f 105 N. C. 476.... 920

Duke v. Markham ............... Corporations ..... 105 N. C. 131.... 889

Early.Godley ................ j Mm ***hdtau. } 42 Minn. 361 . . . . 517

Eisenmenger v. Murphy .......... Judgment infant. . 42 Minn. 84 ..... 493

Ellisy. Hilton ................. j ^TS^f * } 78 Mich ' 150 ""

Ellison y. Sexton ................ Partnership ....... 105 N. C. 356.... 907

Evans v. Stuhrberg .............. Sale, of note ....... 78 Mich. 145. ... 435

First Nat. Bank of Dead wood v. ) r _,v. A o TUT; SOT KIA

Gustin Minerva etc. Min. Co.. Corporation, ...... 42 Minn. 327 . . . . 610

Foot y. Card .................... Husband and wife. 58 Conn. 1 ...... 258



Gaffordy. Strauss ..... .. ....... * Ala, 283 ...... Ill



Galveston etc. R'y Co. y. Smith. . .Master and servant. 76 Tex. 611 ..... 78

Gates v. Steele . . . ............... Collection of judg't. 58 Conn. 316. ... 268

Geiss v. Franklin Ins. Co ......... Insurance ......... 123 Ind. J72 ..... 324

Gibson y. State .................. Murder .......... 89 Ala. 121 ...... 96

Gillilan v. Kendall ............... Chattel mortgage.:. 26 Neb. 82 ...... 766

Gregory y. Christian ........... | ^^pw^iajwr. } * 2 Minn< 2 l ' ' ' ' 507

Gulf etc. R'y Co. y. Levi ......... Carriers .......... 76 Tex. 337 ..... 45

Hainea v. Flinn .................. Judgm't estoppel.. 26 Neb. 380 ..... 785

Hammond v. Dike ................ Wills ............ 42 Minn. 273.... 603

Handlan y. McManus ............ Adverse possession.. \W) Mo. 124 ...... 533

Havemeyer v. Superior Court ..... Receivers corp'ns.. d4 Cal. 327 ...... 192

Heartty. Kruger ................ Party-wall ........ 121 N. Y. 386.... 829

Hedderly y. Johnson ........... | ^^purdiaser. [ 42 Minn ' 443 - - 621

Helms v. Green .................. Fraud, conveyances. 105 N. C. 251 .... 893

Hessv. Culver ................... Fraud ............ 77 Mich. 598.... 421

Heyfron y. Mahoney ............. Elections .......... 9 Mont. 497.... 757

Home v. Smith .................. Fixtures .......... 105 N. C. 322.... 903

Houston, City of, y. Jankowskie . .Limitations ........ 76 Tex. 368 ..... 67

Howe v. Harding ................ Receivers .......... 76 Tex. 17 ...... 17

Ingraham y. Taylor .............. Brokers ........... 58 Conn. 503.... 291

John Spry Lumber Co. v. Sanlt ) ., , i. ,.. 77 vr^u 1QQ one

Q n u i n \Mecnamcs lien.... 77 Mien. 199.... 3SJ6
havings Bank etc. Co ......... f

Keller v. State . . , ... Criminal law ..... 123 Ind. 110.. . , . 318



CASES REPORTED. 13

KAMI. SUBJECT. EXPORT. PAGE.

Killmer v. Wuchner ........... j ^j^*. } 79 Iowa, 722.... 392

Kingv. State .................... Arrest ............ 89 Ala. 43 ....... 89

Kircher v. Conrad ... ............. Agency sales ..... 9 Mont. 191 .... 731

Kraft v. Thomas ................. Neg. instruments ..123 Ind. 513 ...... 345

La Rue v. Groezinger ............. Assignment ........ 84 Gal. 281 ...... 179

Leake v. Watson ................. Brokers ........... 68 Conn. 332.... 270

Liberman v. State ............... .Sunday .......... 20 Neb. 464 ..... 791

Mallory v. Smith ................ Warehousemen.... 76 Tex. 262 ..... 40

Manchester v. Tibbetts ........... Husband and w\fc .\1\ N. Y. 219.... 816

Martin v. State .................. Arrest ............ 89 Ala. 115 ...... 91

Maywood v. Logan ......... ......Landlord and ten.. 78 Mich. 135.... 431

McCallv. Mash ..... ............. Mortgages ........ 89 Ala. 487 ...... 145

76 Tex. 102 ..... 33



Mobile Sav. Bank v. McDonnell. ..Fraud, conveyances. 89 Ala. 434 ...... 137

Montana etc. R'y Co. v. Langlois . . Carriers .......... 9 Mont. 4 1 9 .... 745

Moore v. Francis ................. Libel ......... . ..121 N. Y. 199.... 810

Morgan v. Farrel ................ Partnership ....... 58 Conn. 413.... 282

Munro v. Pacific C. D. & R. Co... Damages for death. 84 Cal. 515 ...... 248

Newell v. Meyendorff ...... . ..... Contracts .......... 9 Mont. 254 . . . . 738

Norm v. Stewart ................ Witnesses ....... 105 N. C. 455 ____ 917



'.: Contrib. negligence.. 89 Ala. 247 ...... 105

Norton v. Whitehead ............. Assignment ........ 84 CaL 263. .. .. 172

Oberfelder v. Doran .............. Elevators .......... 26 Neb. 118 ..... 771

O'Brien v. Western Steel Co. ..... Master and servant . 100 Mo. 1 82 ...... 536

Pennsylvania Co. v. Marion ....... Railroads ......... 123 Ind. 415 ...... 330

People v. McElvaine ............. Expert witnesses.. .121 N. Y. 250.... 820

People v. North Raver S. B. Co.. . . Corp'ns monopoly. 121 N. Y. 582. ... 843

Pinkerton v. Verberg .......... j Arrest "^^ [ 78 Mich. 573. ... 473

Porter v. Powell ................. Parent and child... 79 Iowa, 151.... 353

Port Huron, City of, v. Jenkinson . . City ordinance ..... 77 Mich. 414 .... 409

Reid v. Cowduroy. ............... Sales ............. 79 Iowa, 169.... 359

Reisan v. Mott .................. Malicious prosec'n.. 42 Minn. 49 ..... 489

Ripley v. Case ................... Assumpsit ......... 78 Mich. 126. ... 428

Rockville Nat. Bank v. Holt ...... Suretyship ........ 58 Conn. 526 .... 293

Russell v. Murdock .............. Neg. instruments... 79 Iowa, 101.... 348

Schultzv. Griffin ................ Seal estate agent. . .121 N. Y. 294.... 825

Soeder v. St. Louis etc. R'y Co. ...Damage* for death. 100 Mo. 673 ...... 724

Spangler v. San Francisco ..... .... Municipal Corp'ns . . 84 Cal. 12 ....... 1 58

St. Louis Refrigerator etc, Co. v. \ Aaencu 70 T wa 2SQ Sfifi

Viuton Washing Machine Co. . \ Agency " wa, 2J . . . . 3

State v. Clayton ............... ) ^521 }Mo.616 ...... 565

Steele v. Sioux Valley Bank ...... Deeds ............ 79 Iowa, 339 .... 370

Stephens v. Regenstein ... ........ Fraud, conveyances . 88 Ala. 561 ..... 156



14 CASES REPORTED.

NAHB. SUBJECT. REPORT. PAGI.

Tafft v. Presidio R. R. Co ........ Corporationt ...... 84 Cal. 131 ...... 166

Terre Haute etc. R. R. Co. T. Clem . Railroad crossings. 123 Ind. 15 ...... 303

Terry v. Munger ................. Atsumptit ......... 121 N. Y. 161.... 803

Texas Pacific R'y Co. v. Johnson . . Receiver* .......... 76 Tex. 421 ..... 60

Tower v. Fetz .................... Deed-mortgage... 26 Neb. 706 ..... 795

Vaunest v. Fleming .............. Watert ........... 79 Iowa, 633 . . . . 387

Walsh T. Raymond ............ | ^^^^^^ f 68 Conn. 251 . . . . 264

Walter, Ex parte ................ Reverted judgment*. 89 Ala. 237 ...... 103

10 Mo. 194 ...... 541



Western U. Tel. Co. v. Henderson.. Telegraph cot. ..... 89 Ala. 510 ...... 148

Western U. Tel. Co.v. Kirkpatrick. Telegraph cot. ..... 76 Tex. 217 ..... 37

Western U. Tel. Co. v. Moore ...... Telegraph cot. ..... 76 Tex. 66 ...... 25

Wilder T. Wilder .............. } ^""^StoSd } 89 Ala * 4U ...... 13

Wildner v. Ferguson ........... j ^"^e^ption. \ 42 Minn - 1 12 ' ' * ' 495

William Rogers Mfg. Co. v. Rogers. Spec, performance.. 58 Conn. 356. . . . 278

Williams v. Davenport ............ Libel ............. 42 Minn. 393. . . . 519

Witty T. Michigan Mat. L. Int. Co..Neg. instrument!. ..123 Ind. 411 ...... 327



AMERICAN STATE REPORTS.

TOI* -X.V1LL



CASES

IN THB

SUPBEME COURT

or

TEXAS.



HOWE v. HAEDINQ.

176 TEXAS, 17.]

RECEIVER or RAILWAY. A receiver empowered to take possession of, con-
trol, and operate a railway is, in some sense, the representative of the
corporation that owns it.

RECEIVER OF RAILWAY OBLIGATION TO ENFORCE CONTRACTS. The court
appointing a receiver for a railway corporation ia under obligation to
continue in force, and in some cases to cause to be fulfilled, the per-
sonal contracts of the company, though they may have been improvi-
dently made. The continuance of the obligations of contracts is not
dependent on the act or will of a court; nor can a court* in any proper
case, refuse to execute them.

RECEIVER OF RAILWAY SUIT AGAINST OBLIGATION or CONTRACTS. A
creditor having a specific right to be paid out of the earnings of a rail-
road, or a lien on its property in the hands of a receiver, based on a con-
tract made with the company before his appointment, may maintain hia
action against the receiver; and upon recovering judgment, may have it
satisfied out of the earnings of the road or the proceeds of sale of the
property.

VENDOR'S LIEN FOR RIGHT OF WAY. A lien equivalent to a vendor's lien
exists in case of a grant of way, where the consideration for the grant ia
not paid.

RECEIVER OF RAILWAYS SUIT AGAINST OBLIGATION OF CONTRACTS.
Where a railroad company, in consideration of the grant of a right of
way, agrees, with the grantor, for the erection of a water-tank on his.
land, for the use of the company, to be furnished with water from a
spring on his land, and contracts to pay him therefor, a lien to secure
the payment exists on the earnings of the road in the hands of a receiver
afterwards appointed; and an action for a breach of the contract will
lie, and judgment may be recovered against the receiver, to be satisfied
out of the earnings of the road.

Goldthwaite and Ewing, for the appellant.
James E. Hill, for the appellee.

AM.ST.Kar., VOL. XVIII. 2 17



18 HOWE v. HARDING. [Texas,

STAYTON, C. J. Appellee alleges that he made a contract
with the Houston East and West Texas Railway Company, in
1<S80, whereby that company, in consideration of the grant of
right of way across a tract of land owned by him, and other
lands of which he had possession, control, and management,
agreed to erect and maintain a water-tank on his land, to be
supplied with water from an elevated spring thereon, which
was to be used by the company, for which he was to be paid
as much per month as the company should pay to any other
person on its line for like privilege or service.

He alleges that the tank was erected, pipe furnished by the
company at his expense, which was by himself laid from the
spring to the tank, a distance of about one thousand feet, and
that he thus furnished the company with water necessary for
its uses until July 11, 1885, at which time the railway went
into the hands of appellant as receiver, appointed by the dis-
trict court for Harris County, who, since that time, has had
exclusive control of all the property of the company, and has
operated the road over the way granted as the consideration
for the company's promise.

He further alleges that appellant permitted the tank to
remain, and used water from the spring, until July, 1887, when
the tank was removed, and appellant ceased to use water, and
refused, from that time until this action was brought, to pay
therefor.

It was alleged that other persons on the line for similar
water service received fifty dollars per month.

It appears, from the evidence, that two instruments were
executed at the time the contract was made, both of which
went into the possession of the railway company.

Notice was given to produce them; but only one was pro-
duced, and the contents of the other were proved by oral tes-
timony.

The contract produced was one signed by and purporting to
be made by Nancy S. James, and in the usual form conveyed
the right of way over the land, and as to the consideration for
the grant of way, contained the following language: "And as
a further consideration for said right of way, the company
agrees to erect a tank on said premises, provided there be
sufficient water, and contract with the above party, or her
authorized agent, to keep the same supplied."

The other paper was proved to evidence a contract in regard
to tank, furnishing water, and compensation therefor as al-



HOWE v. HARDING. 19

leged, and thereby the compensation was made payable to

appellee.

It was shown that, in 1866, title to the entire tract of land
over which right of way was granted was in Nancy S. James;
but appellee was permitted, without objection, to state that
she heard the contracts read, and that it was made for his
benefit, with her consent, the inference being that the promise
was made directly to him, and that he had lived on the land*
and been in actual possession, since 1854, claiming it; that
his homestead of two hundred acres was nearly one thousand
varas square, over which the road ran more than one mile
circuitously, and that on this was the elevated spring and
water-tank.

Miss James was shown to be a near relative, who had been
a member of appellee's family for more than fifty years; and
the inference from the evidence is, that while title to a part
of the land, or it may be the whole, stood in her name, that
the beneficial interest was in appellee.

There was a judgment in favor of appellee for water service
under the contract from April 1, 1887, to December 20, 1888,
amounting to $662.

There is no complaint that the judgment is too large; but
it is contended that, under the facts, no judgment whatever
could be rendered against the receiver for the value of water
service, as provided by the contract, after he ceased to use the
water from the spring.

The assignments presenting this question are as follows:

"The court erred in its main charge to the jury, wherein it
stated, in effect, that if the defendant railway company made
with plaintiff the contract stated in the petition before the ap-
pointment of the receiver of the former, then this defendant,
as receiver, was liable to the plaintiff upon said contract.

"The court erred in instructing the jury, both in its main
charge and in the special charge given at the request of plain-
tiff, to the effect that if, prior to the time defendant receiver
was appointed, the railway company and plaintiff entered into
a contract whereby, in consideration of plaintiff's conveyance
of a right of way over plaintiff's land, the railway company
agreed to pay plaintiff for supplying water to a tank on said
right of way as much per month as was paid any other person
for the same service at any other point on said railway, and
that the defendant receiver, after he took charge of said rail-
way, used the right of way so conveyed in operating said rail-



20 HOWE v. HARDING. [Texas,

way, then that he was liable on said contract, and it was
binding on him, as receiver of said railway company."

The proposition under these assignments is, that "a receiver
is not the representative of nor in privity with the company
whose property he holds, but is the mere hand of the court
appointing him; and the court cannot be bound to the con-
tinuance and fulfillment of the company's personal contracts,
improvident and disastrous though they be, without destroy-
ing the court's independence and success in the management
of the trust assumed, and creating a privity that the settled
rules of law deny."

It is certainly true that courts have no power to create a
privity which the law declares shall not exist, but it is a mis-
take to assume that a receiver empowered to take possession
of, control, and operate a railway is in no sense the represent-
ative of the corporation that owns it; but this case does not
call for a decision as to the extent of his representation, nor as
to the circumstances under which his acts will be binding on
the company whose property he controls.

It is also erroneous to assert that a court appointing a re-
ceiver is under no obligation to continue in force, and in some
cases to cause to be fulfilled, the personal contracts of the
company, though they may have been improvidently made.
The continuance of the obligation of contracts is not depend-
ent on the will or act of a court, nor can a court in any
proper case refuse to execute them.

It is true, however, that it is not every contract a com-
pany may have made which a court administering its prop-
erty through a receiver will cause to be satisfied out of the
funds subject to its control; for that must depend on the right
to be paid out of the earnings or proceeds of the property in
the hands of the court. This specific right may depend on the
existence of a lien on the property secured by contract or op-
eration of law; or in the case of public agencies, such as rail-
ways, such specific right to compensation to be paid out of
earnings of the business, and in some cases out of the proceeds
of the corpus of the property, will arise; for parties holding
liens on such property, knowing that it must continue to be
used in the public business for which the corporation to which
it belongs was created, must be understood to consent when
they ask that the property be placed in the hands of a receiver
that the cost of operating the business shall first be paid, even



Feb. 1890.] HOWE v. HARDINQ. 21

though resort to the corpus of the property be necessary to ac-
complish this.

The cases have gone so far as to hold property in the hands
of a receiver liable for wages earned before his appointment, for
debts contracted to other railway companies in the ordinary
course of business, for expenses incurred in completing un-
finished road, and making other permanent improvements, as
well as for debts contracted for supplies before the appoint-
ment.

If the receiver appointed to take possession of and operate
a line of railway, part of which is held under lease by the
company of whose property he is given control, does so, or if,
under like circumstances, he takes possession of and uses cars
which the company held under contract to purchase, it has
been held that the rents, price of cars, or compensation for
their use was properly directed to be paid out of earnings.

The contract in question is not shown to have provided, in



Online LibraryUnknownThe American state reports, containing the cases of general value and authority subsequent to those contained in the American decisions and the American reports decided in the courts of last resort of the several states (Volume 18) → online text (page 1 of 115)