Howe v. Harding

• Decision Date: 04 February 1890
• Citation: 13 S.W. 41
• Parties: HOWE <I>v.</I> HARDING.
• Court: Texas Supreme Court

13 S.W. 41

HOWE

v. HARDING.

Supreme Court of Texas.

February 4, 1890.

Appeal from district court, Polk county.

Goldthwaite & Ewing, for appellant. James E. Hill, for appellee.

STAYTON, C. J.

Appellee alleges that he made a contract with the Houston, East & West Texas Railway Company in 1880, 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 1,000 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 district 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 $50 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 produced, and the contents of the other was proved by oral testimony. 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 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 alleged, 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 contents 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 200 acres was nearly 1,000 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 50 years, and the inference from the evidence is that while title to a part of the land, or it may be to the whole, stood in her name, the beneficial interest therein 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 appointment 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 plaintiff, 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 defendant receiver, after he took charge of said railway, used the right of way so conveyed in operating said railway, 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 continuance and fulfillment of the company's personal contracts, improvident and disastrous though they be, without destroying 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 mistake to assume that a receiver empowered to take possession of, control, and operate a railway is in no sense the representative 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...