Bibber-White Co. v. White River Val. Elec. R. Co.

• Decision Date: 23 March 1901
• Citation: Bibber-White Co. v. White River Val. Elec. R. Co., 107 F. 176 (D. Vt. 1901)
• Parties: BIBBER-WHITE CO. v. WHITE RIVER ELECTRIC R. CO.
• Court: U.S. District Court — District of Vermont

107 F. 176

BIBBER-WHITE CO. v. WHITE RIVER ELECTRIC R. CO.

United States Circuit Court, D. Vermont.

March 23, 1901

E. L Waterman, for receivers.

W. B C. Stickney, for petitionee.

WHEELER District Judge.

The town of Stockbridge appears to have voted $10,000 to aid in the construction of this railroad, provided: 'Sixth. That the people of the town of Pittsfield, Hancock, and Granville shall raise in aid of said railroad, either by appropriations of their several towns, or by individual subscriptions, or in both ways, a like sum of $10,000. ' The town of Pittsfield appears to have voted $3,000, and the town of Hancock $2,000, in compliance with that vote, and 134 individual subscriptions,-- one of $550, and the others of from $5 to $200, and amounting to $5,000,-- appear to have been made upon six different papers, promising to give these various sums, respectively, without otherwise naming any payee, for the purpose of aiding in the construction of the railroad as required by the vote of the town of Stockbridge to be paid upon the completion and equipment of the road; and Charles W. Brigham appears to have signed, sealed, and delivered to the railroad company a written instrument which after reciting the passing of these votes and the making of these subscriptions, proceeded:

'Now, therefore, I, the said Charles W. Brigham, agree to and with the said White River Valley Electric Railroad Company, its successors and assigns, to act as trustee for the purpose of collecting said sum of five thousand dollars from the subscribers to said fund, and to use my best endeavors to collect the same, and do promise and agree to and with said railroad company, for the purpose of inducing it to proceed with its construction of the proposed line as named in said votes and resolutions, to turn over to said corporation the said sum of five thousand dollars, or such part thereof as I shall be able to collect, when said railroad company shall have performed all things entitling it to receive from said town of Stockbridge the amount which said town of Stockbridge has voted to pay in aid of said road.'

H. W. Burgett was vice president of the railroad company and one of an executive committee of three for building the road, and John R. Tupper appears to have been active in furthering this enterprise, and to have performed some services and made some expenditures about it after organization of the company. Burgett made upon Brigham's agreement this indorsement: 'Pay to John R. Tupper, or his order, the amount specified in this agreement. H. W. Burgett, Vice President,' and delivered it to Tupper, who indorsed and delivered it to the National White River Bank. The receiver of the railroad company, its road in process of construction and its assets, was appointed in this cause February 20, 1900. These individual subscriptions appear to have remained in the hands of those, or some of those, who had circulated them, till after that time, and none of them to have ever been in the hands of Brigham except one that he had circulated. Tupper appears to have afterwards claimed them, they were sent to the bank, and in the fore part of December, 1900, were put for him, with the Brigham agreement, which had been indorsed: 'Pay to the National White River Bank, or its order, the amount specified in this agreement. John R. Tupper,'-- with the securities of that bank; and he has denied them to the receiver.

This petition is brought against Tupper for relief from this interference with these subscriptions as pertaining to assets of the company belonging to the receiver. He has answered the petition and filed affidavits, and the petitioner has cross-examined the affiants, and has filed affidavits...