Brown v. Warner

• Citation: 14 S.W. 1032
• Parties: BROWN <I>et al.</I> v. WARNER.
• Decision Date: 05 December 1890
• Court: Texas Supreme Court

14 S.W. 1032

BROWN et al. v. WARNER.

Supreme Court of Texas.

December 5, 1890.

Appeal from district court, Smith county; FELIX J. McCORD, Judge.

Whitaker & Bonner, for appellants. H. Chilton, for appellee.

GAINES, J.

The appellee brought this suit against the appellants, as receivers of the Texas & Pacific Railway Company, alleging in his petition that in 1874 he made a contract with that company to the effect that, in consideration of his agreement to grade and furnish ties for a switch on the company's railroad at a point known as "Warner's Station," it would furnish the iron, and complete and permanently maintain such switch at that point for his benefit for shipping purposes; that the switch was constructed in accordance with the contract, and maintained until the year 1887; but that in December, 1885, the defendants were appointed receivers of the company's railroad by the United States circuit court for the northern district of Texas, and thereafter went into possession of the property, and continued to operate the same; and that on the 19th day of May, 1887, they removed the switch, over his protest, and thereby damaged him greatly by the consequent depreciation of his property. The property was specifically described, and consisted in timber lands, timber privileges, saw-mills, store-house, a stock of goods, etc., all of which, as alleged, had been acquired at the time of the removal for the purpose of carrying on the business of sawing lumber for market, and was rendered greatly less valuable for want of any practicable means of placing the lumber upon the railroad at a point where it could be transported to market. The damages were specifically alleged, and, according to the allegations, amounted in the aggregate to the sum of $63,425. A general demurrer to the petition was overruled, and that ruling is assigned as error.

The case made by the petition is an action against the receivers to recover damages for the breach of the company's contract. Neither the nature of the suit in which the receivers were appointed, the grounds of that appointment, nor the powers conferred upon them are disclosed by the petition. We may assume that the receivership has been ordered, and the appointment made, in some equitable proceeding, in which it has been deemed necessary for the court to take charge of the property in order to prevent its waste, and the diversion of its income, during the pendency of the suit. A receiver, as a general rule, is but the agent of the court that appoints him, with authority to take the possession and control of property, the subject-matter of litigation; and is not the representative of the owner, for the fulfillment of the latter's contracts, except in cases in which he has made the contract his own by some act of adoption. Com. v. Franklin Ins. Co., 115 Mass. 278. The life of a railroad depends upon its active operation as a "going concern," and a receiver over it must necessarily exercise many of the powers of a proprietor in its management, and be subjected to a similar liability for his own official acts, and those of his servants and agents. He is liable as receiver for his contracts made in his official capacity, and for the torts committed by his servants and agents in the operation of the road. By reason of the liability incurred by the operation of so much machinery and the employment of so many men, it may seem, upon first blush, that their liability is defined by a different rule from that which prescribes the liability of receivers in ordinary cases. But the rule is the same. The receiver of the property of a railroad is no more the representative of the company than the receiver of the property of a natural person is the representative of such person. Let us suppose, then, that the proprietor of a cotton...