Harding v. Nettleton
| Decision Date | 31 October 1885 |
| Citation | 86 Mo. 658 |
| Parties | HARDING v. NETTLETON, Receiver, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.
AFFIRMED.
Pratt, Brumback & Ferry for plaintiff in error.
A receiver of a railroad, appointed pendente lite by a court of chancery, upon a bill by or on behalf of bondholders for the foreclosure of a railway mortgage, is not authorized to appropriate the property and assets of the corporation and its earnings to payment of contract debts of the company, incurred previous to his appointment; nor are such debts binding upon the receiver or a charge upon the assets in his hands. High on Receivers, secs. 273, 391; Jones on Railroad Securities, sec. 569. The alleged contract was an oral one and void under the statutes of fraud.
Harding sued to recover twenty-five hundred dollars damages for an alleged breach of contract for the sale of railroad ties, charging in his petition that on or about January 10, 1878, prior to the appointment of Nettleton, as receiver, plaintiff made a contract with said railroad company to sell and deliver to it at times specified, twenty-seven thousand railroad cross-ties at sixty-five cents per tie. That under said contract, on January 24, 1878, he delivered to said company, which accepted two hundred and eighty-two ties, for which the said company paid him the said contract price. That he was willing and ready to comply with his contract, but the said company, about the time of the delivery of the two hundred and eighty ties, refused to take any more ties. That in March, 1878, Nettleton was appointed by the circuit court of the United States for the district of Kansas, receiver of said railroad corporation. That he accepted the appointment and qualified as such and thereby became entitled to, and took, held, and received all the property, etc., of said company and was managing the same, subject only to the orders of said court, and that on the second of August, 1878, said court, by its order, gave plaintiff leave to prosecute this action against Nettleton in the state court.
The action was tried at the April term of the Jackson circuit court, and the trial resulted in a judgment for plaintiff, from which defendant has prosecuted an appeal to this court. The testimony for plaintiff was a copy of the order of the said United States court, appointing Nettleton receiver as alleged, and a copy of the order granting plaintiff leave to sue in the state court as alleged.
Harding testified to the contract as stated in the petition, the delivery of two hundred and eighty ties under the contract to the said company, and the payment for the same by the company at the contract price, and its refusal to receive any more. At the conclusion of plaintiff's evidence, a demurrer to the evidence submitted by defendant's counsel was overruled. Defendant then offered, as evidence, a report of the roadmaster of the Leavenworth, Lawrence & Galveston Railroad Company of two hundred and eighty ties purchased of Harding and received February 2, 1878. A receipt for the ties from B. S. Henning, receiver of the Leavenworth, Lawrence & Galveston Railroad Company, signed by Harding, dated March 4, 1878, and, also, a check dated March 14, 1878, as follows:
| “NO. 795. |
ROSEDALE. KAS., March 14, 1878.
B. S. Henning, Receiver.
C. H, PRESCOTT, Accountant.
ALDRICH.
$149.00. To the Mastin Bank, Kansas City, Mo.”
”
In rebuttal, Harding testified, that when he received the money he did not notice the heading of the check. That Campbell, with whom he made the tie contract, was purchasing agent for both of the said railroad companies. That plaintiff had no control over the ties after they were shipped. Did not know which road used the two hundred and eighty ties. They were shipped to the Missouri River, Fort Scott & Gulf Railroad Company. That he did not notice the heading of the receipt he gave.
The court, at the instance of plaintiff, gave the following instruction:
“If the jury...
To continue reading
Request your trial
-
Union Nat. Bank of Kansas City v. Lyons
...but stands upon an equal footing with them, and this judgment must be paid pro rata with the claims of its other creditors. Harding v. Nettleton, 86 Mo. 658; Smith v. Railroad, 151 Mo. 391, 52 S. W. 378, 48 L. R. A. "There are several other minor questions presented and argued by counsel fo......
-
Union National Bank of Kansas City v. Lyons
...but stands upon an equal footing with them; and this judgment must be paid pro rata with the claims of its other creditors. [Harding v. Nettleton, 86 Mo. 658; Smith Railroad, 151 Mo. 391, 52 S.W. 378.] There are several other minor questions presented and argued by counsel for appellant, bu......
-
Lively v. Evans-Howard Fire Brick Co.
...Steel Co. v. McElwaine-Richards Co., 144 Ind. 614, 43 N.E. 876; Baldwin v. Spear Bros., 79 Vt. 43, 64 A. 235, 34 Cyc. 447; Harding v. Nettleton, 86 Mo. 658. rule laid down in these cases presuppose that the property subject to the lien is in the hands of the receivers at the time the lienho......
-
Grant v. Omaha, Kansas City & Eastern Railway Co.
...no jurisdiction of the cause for the reason that the action accrued before the appointment of the receivers, is untenable. In Harding v. Nettleton, 86 Mo. 658, it was held an action might be maintained against a receiver of a railroad by permission of the United States court which appointed......