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and that the trustee represented all creditors for the purpose of sustaining the deeds under which he held for their benefit. Railroad Co. v. Butler, 56 Tex. 511; Ebell v. Bursinger, 70 Tex. 120, 8 S. W. 77; Kerrison v. Stewart, 93 U. S. 155. The reasons assigned in support of the rule requiring beneficiaries to be made parties where the object is to participate in the fund under the instrument by which the trust is created do not apply in this character of case. When it is sought to construe an instrument and enforce it, the trustee is entitled to have the rights of all the parties interested determined, in order that he may be protected in the execution of the trust. He does not represent any of the beneficiaries so far as the rights between them and other beneficiaries are concerned, but is supposed to be indifferent in this respect. The beneficiaries named in the deed, as well as all others entitled to participate in the fund, have the right to be heard for the purpose of establishing their own rights, as well as to contest the claim of any other asserting a right to any part of it. As before said, the object of this suit was not to distribute under, but to set aside, the deeds of trust, and make division according to law. In Ebell v. Bur singer, supra, the deed of trust conferred such limited powers upon the trustee that this court held that he was not empowered to institute and maintain suits alone with reference to the property. The general rule is announced in that case that, in a suit "by or against the trustee for the recovery of the trust property, the beneficiary is a necessary party." The decision recognizes the exceptions to this rule, and cites the case of a general assignment, in which it is held that the assignee may sue or be sued alone so far as the possession of the property is concerned. In that case the decision was placed distinctly upon the ground that the trustee bad not such power as would enable him to sue alone for the property, nor such as would authorize a suit against him alone. It cannot be doubted that a trustee with the authority granted by these instruments could sue for the possession of the property conveyed to him thereby. In Hudson v. Elevator Co., 79 Tex. 401, 15 S. W. 385, it was sought to have an instrument claimed by the trustee and beneficiaries named in it to be a mortgage declared to be a general assignment, and to annul the preference therein provided for. Plaintiffs sought to enforce this instrument as reformed, and claimed under it an interest in the fund antagonistic to the named creditors. It was held that the creditors named in the instrument were necessary parties to the suit. We adhere to this as a correct practice in that class of case; and in so far as Preston v. Carter, 80 Tex. 388, 16 S. W. 17, is in conflict with the doctrine announced in Hudson v. Elevator Co. upon this point, the former case is overruled.

In every case where the beneficiaries are entitled to participate in a trust fund in proportions not fixed by the instrument, before the court can declare the part to which any one of them is entitled, notice must be given to all the beneficiaries, if known. If not known, or if they are too numerous to be made parties, then the court can give such notice and take such action as will enable them to present their claims for adjustment. The fund in this case is under the control of the court, and there are many creditors scattered throughout different states. The court should, before making distribution of that fund, give such notice as is practicable, that each may present his claim before the court for inquiry and adjudication. This suit was brought with a view to that end, and so alleges its purpose to be. The beneficiaries named in the deed of trust, which attempted unlawfully to create a trust in a trust fund, were not necessary parties to this suit, which was prosecuted for the purpose of restoring the fund to its lawful purposes.

The Farmers' & Merchants' Bank intervened in this suit, and the Paris Exchange Bank became a party defendant. Each set

up its debt against the Thomas-Lyons Hardware Company, claiming that the same should be paid by the trustee, and asking the court to order the payment to be made by him. The court continued the trustee, in fact, appointed him as receiver, -and took control of the property, ordered that he sell the property, and pay the proceeds to the creditors preferred, as directed in the deeds of trust. The trustee sold the property, and reported the payments to the two banks, which is not controverted. The plaintiff filed his second amended original petition, alleging, in substance, that they were not sufficiently informed as to whether payments had been made by Harrison to the banks to enable them to allege the fact of payment, nor the amount so paid, but prayed that the two banks be required to produce in court the money paid to each. The fact of payment and the amount paid to each were matters peculiarly within the knowledge of the banks and Harrison, and, in the nature of things, not known to the plaintiffs. The allegations were sufficient to notify the banks of what was sought to be enforced against them. Railway Co. v. Brinker, 68 Tex. 502, 3 S. W. 99; Lewis v. Alexander, 51 Tex. 585. In Lewis v. Alexander the court said: "The same strictness of pleading should not be required of plaintiff, who is not presumed to have a particular knowledge of the agree ment, that would be required of a party to it." The court had a right to order parties to the proceedings to restore to the possession of the court the money which had been placed in their hands by an order of the court that was held to have been void or wrongfully entered, the cause being still in course of adjudication. The evidence of payment by Harrison to the banks was prop

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erly admitted, under the pleadings and the circumstances of this case.

Plaintiffs in error claim that the district court erred in entering judgment against L. P. Harrison for the proceeds of sale of the property in his hands, the greater part of which he had paid to the Farmers' & Merchants' and the Paris Exchange Banks, under the order of the ccurt. The correctness of the judgment depends upon the validity of the order of the court made in vacation. If the court had the power to make that order in vacation, then, no matter how irregular it might be, the officer would not be liable for obeying it. If, however, the court had not that power, the order would be void, and would afford no protection to Harrison. was bound to know the law, and must act at his peril in the execution of a void order, if the invalidity arises from want of power in the judge to make the order at the time it was made. Freem. Judgm. § 229; Freem. Ex'ns, § 100; Gurney v. Tufts, 37 Me. 130; Howard v. Clark, 43 Mo. 344; Laughlin v. Peckham, 66 Iowa, 121, 23 N. W. 294.

He

Under article 1461, Rev. St., the district judge had authority to appoint a receiver in vacation, but no statute gave him power to appoint a trustee in vacation. The judge refused to appoint a receiver, but, on application of Harrison and the preferred creditors, authorized Harrison, as trustee, to execute the trust in accordance with the deeds, and required him to give bond in the amount prescribed by the judge, to return an inventory of all property in his hands as trustee, and to report to the next term of the court his action. It also declared the deeds of trust valid, and ordered the trustee to pay over the proceeds of the property to the preferred creditors, according to the directions of the deeds of trust. Thus, the judge took control of the property, and made the "trustee," as he was termed, amenable to the court. If the judge had appointed Harrison receiver, the same things would have been required of him as were required by this order. He must, as receiver, give bond, as prescribed by the judge, to return an inventory, and report to the court. The conditions of the bond are not exactly such as are required by the statute, but that was merely irregularity, and would not avoid the appointment as receiver. He was called "trustee" instead of "receiver," but courts will look to the substance of the action had, what it accomplished, and not to the particular terms used to denominate the character of the officer appointed. Harrison was in fact and law appointed receiver by the judge, and, if the court in a receivership could enter the order under which he acted, he would be protected in this case. A judge of the district court in this state has no power to adjudicate the rights of litigants except at the time and places prescribed by law for holding courts, unless the authority is conferred by statute. Hunton v. Nichols, 55 Tex. 225;

Doss v. Waggoner, 3 Tex. 516; Hodges v. Ward, 1 Tex. 244; Black, Judgm. § 179; Freem. Judgm. § 121; Hammock v. Trust Co., 105 U. S. 77; Kinports v. Rawsom, 29 W. Va. 496, 2 S. E. 85; 12 Am. & Eng. Enc. Law, p. 14; Laughlin v. Peckham, 66 Iowa, 121, 23 N. W. 294. Hodges v. Ward, cited above, is very much in point. A mandamus was applied for against a collector of customs to compel him to deliver goods to the plaintiffs. The judge heard the application in vacation, and ordered the collector to deliver up the goods. The order was held to be absolutely void. In this case the order which adjudged that the deeds of trust were valid, and ordered the proceeds to be paid on the preferred debts, adjudicated in vacation the very matter in controversy. The statutes of this state do not invest the judge of the district court with such authority, and the order was a nullity. The court rightly rendered judgment against Harrison for the money that came into his hands derived from the sale of the property. The judgment of the court against Harrison was for the amount that he had paid the two banks and his own claim, besides a small balance remaining in his hands, allowing him his expenses and commissions. It provides for crediting Harrison with the amounts to be paid by the banks when paid, and no injustice is done him. The money is ordered to be paid to the clerk, to be held subject to the future orders of the court, and Harrison can be protected in all particulars that are consistent with the rights of others in the disposition of that fund.

Before this suit was instituted, the Baker Wire Company filed a suit against Harrison to recover some of the property held by him under the deeds of trust. It was made a party to this suit, and joined in the prayer for appointment of a receiver, and was subsequently permitted to withdraw. That company would have had a right to sue Harrison after he was appointed, without leave of the court (Rev. St. art. 1468), and there was no error in permitting it to prosecute its suit already pending. Harrison could make every defense in that case to which he was entitled, and, if he is entitled to protection from the results, the court can, in the distribution of the funds, afford him such protection as he may show that he ought to have. The judgment of the district court, as reformed by the court of civil appeals, is affirmed, and will be enforced, in accordance with this opinion.

HARRISON et al. v. WATERBERRY et al. (Supreme Court of Texas. June 7, 1894.) PROPERTY IN RECEIVER'S HANDS-LIABILITY TO

LEVY.

1. Where property is in the hands of a receiver, it cannot be interfered with by an officer under process issued in other cases, without the consent of the court under whose control

it is, and an injunction should be granted to prevent such interference.

2. Rev. St. art. 1468, permitting suits to be prosecuted against a receiver without the consent of the court appointing him, only authorizes the plaintiff to establish his demand, and judgment thereon can only be satisfied by order of the court appointing the receiver.

Error from court of civil appeals of fifth supreme judicial district.

Injunction by L. P. Harrison and others against L. Waterberry & Co. and others. From a judgment of the court of civil appeals (27 S. W. 430) affirming an order of the district court, dismissing the petition, plaintiffs bring error. Reversed.

Dudley & Moore and Maxey, Lightfoot & Denton, for plaintiffs in error. H. D. McDonald and R. S. Ross, for defendants in

error.

BROWN, J. This was a suit by injunction filed by the plaintiffs in error to restrain the defendants in error from executing certain writs of sequestration sued out against property in the possession of L. P. Harrison. The petition alleged and showed that in a suit by the Perry Stove Manufacturing Company and others against the Lyons-Thomas Hardware Company and L. P. Harrison, trustee, and the Baker Wire Company, which was a general creditor's bill, seeking the appointment of a receiver for the LyonsThomas Hardware Company, and to remove the trustee, Harrison, and have a stock of goods, etc., which had been transferred by said hardware company, by chattel mortgage, to said Harrison, as trustee, to secure the appellants, taken from his possession, and placed in the hands of a receiver; that in said suit appellants and others intervened, praying the court to take charge of the trust, require the trustee to inventory the property, and give bond; that he be ordered to sell such property, and report his action at the next term of the court; that at the hearing of said application for a receiver and pleas of intervention, on the 29th of November, 1889, the court ordered said trustee to hold possession of said property, to file an inventory and appraisement of the same, to give bond with good security, equal to the value of the property, for his faithful performance as such trustee, and to sell the same, and report his action at the next term of the district court of Lamar county, Tex., and that said trust be settled under the direction of said court; that said trustee in all things obeyed said order, and was in possession of the property under said order at the time appellees were threatening and attempting to take from his possession portions of said property by sequestrations, when he filed his said petition, and obtained a writ of injunction. The petition alleged that after petitioner had qualified under the order of court, or at least after the appointment, defendants in error sued out writs of sequestration, by which they threatened to seize and take from

his possession some of the property held under the authority of the district court, and prayed for a writ of injunction to restrain and prevent the execution of the writ. The injunction was granted. Defendants below filed a general demurrer, general denial, and motion to dissolve the injunction. The district court dissolved the injunction, and dismissed the petition, which judgment was, by the court of civil appeals, affirmed. In LyonsThomas Hardware Co. v. Perry Stove Manuf'g Co. (decided this day by this court) 27 S. W. 100, it was held that the facts alleged in the petition constituted the plaintiff in error Harrison the receiver of the district court, and that the court, by the proceedings, took control of the property. It is unnecessary to repeat the reasons given and authorities cited. It is too well settled to require authority that, when property is in the custody of the law, it cannot be interfered with by an officer acting under process issued in other cases, without the consent of the court under whose control it is at the time. Article 1468, Rev. St., permits suits to be prosecuted against a receiver without first obtaining consent of the court that appointed him. But this is only to establish the right to recover and the amount of the demand. The judgment must be satisfied by order of the court by which the receiver was appointed. It does not authorize the seizure of property in the hands of a receiver under writs of attachment, sequestration, or execution issued in other suits. Harrison was in fact a receiver of the district court of Lamar county. The property in his hands was in custodia legis, and not subject to seizure under the writs of sequestration alleged to have been sued out against it. The district court erred in dissolving the injunction and dismissing the petition, and the court of civil appeals erred in sustaining the judgment of the district court, for which errors both judgments are reversed, and the cause remanded to the district court. for further trial in accordance with this opinion.

GULF, C. & S. F. RY. CO. v. HUME et al.' (Supreme Court of Texas. June 14, 1894.) CARRIERS-CONTRACT OF SHIPMENT- AUTHORITY OF AGENT-FAILURE TO FURNISH CARS-MEASURE OF DAMAGES.

1. A clause, in a contract by a railroad company to ship cattle, providing that no action for delay in transportation shall lie unless commenced and citation served within 40 days, is against public policy and void.

2. A station agent of a railroad company can bind it by verbal contract to furnish cars at a given time for the shipment of freight, unless the shipper knows that the agent has no such authority.

3. Inability of a carrier to furnish cars contracted for owing to unusually heavy traffic at the time, is no defense to an action for failure to furnish such cars.

'Rehearing pending.

4. The measure of damages for delay in the shipment of cattle to a distant point for pasturage is the deterioration in their value caused by such delay, together with the excess in cost of keeping them at the point of shipment over that of keeping them at the pasturage.

Error from court of civil appeals of third supreme judicial district.

Action by Hume Bros. against the Gulf, Colorado & Santa Fe Railway Company for damages to certain cattle resulting from defendant's delay in shipping them. A judgment for plaintiffs was affirmed by the court of civil appeals (24 S. W. 915), and defendant brings error. Reversed.

J. W. Terry, for plaintiff in error. Willingham & Jenkins, Powell & Smith, and West & Cochran, for defendants in error.

BROWN, J. Hume Bros. sued the Gulf, Colorado & Santa Fe Railway Company to recover damages for the breach of a verbal contract alleged to have been made by the station agent of the railroad company at Ballinger with the plaintiffs, whereby the railroad company agreed to furnish to plaintiffs cars to ship a large number of cattle on a certain day. It is alleged that plaintiffs, in pursuance of the contract, drove the cattle to Ballinger, and, on the day agreed upon, were ready to ship them; but the railroad company failed to furnish the cars, and did not furnish them for a number of days thereafter, by which Hume Bros. were compelled to hold their cattle at great expense, and that the cattle were, by reason of such holding, greatly depreciated in value. The railroad company filed a general denial and special pleas, which will be mentioned in the opinion in discussing the questions raised upon them. Upon trial in the district court, judgment was rendered against the railroad company, which was affirmed by the court of civil appeals (24 S. W. 915), and is now before this court on writ of error, upon the following objections to the judgment: First. That the district court erred in sustaining plaintiffs' exceptions to defendant's answer, setting up the stipulation in the contract of shipment that suit must be filed and service had of citation within 40 days. Second. That the court erred in charging the jury that the railroad company was bound by the contract to furnish cars to plaintiffs at a certain time, if it was made by the station agent of the company, and in refusing special charges asked by defendant, and also in excluding evidence which was offered by defendant to prove that the agent did not have authority to make the contract. Third. In excluding evidence to show that the shipment of cattle at that time was so heavy that the railroad company had not sufficient cars to supply the demand, for which reason the delay occurred in furnishing cars to plaintiffs. Fourth. Admitting evidence as to effect of market in the territory on market

at Ballinger. Fifth. In the charges given on measure of damages, and in refusing to give charges upon the same subject requested by the defendant. The defendant pleaded that, for a valuable consideration, there was inserted in the shipping contract a clause by which it was agreed between it and plaintiffs that, for the recovery of damages in certain cases, including the character of plaintiff's' claim, no suit should be maintained in any court, unless it was instituted and service of citation had within 40 days after the damages accrued. Plaintiffs excepted to this part of the answer, and the district court sustained the exception, which is assigned as error.

Two questions arise upon this assignment: (1) Was' the stipulation unlawful in whole or in part? (2) If unlawful in part only, does the unlawful part render the clause void as a whole?

It was lawful for the defendant, by agreement with plaintiffs, to fix a reasonable time shorter than that allowed by law within which suit must be filed. Railway Co. v. Trawick, 80 Tex. 270, 15 S. W. 568, and 18 S. W. 948. Forty days has been held to be reasonable, under the facts of the cases in which the question arose. The reasonableness of the time fixed is generally a question of fact, to be determined by the jury. The requirement that service of citation must be made within a given time rests upon a different ground. It is not a question whether or not the time agreed upon is reasonable, but is it a subject about which the parties could contract? Upon the filing of a petition, it is the duty of the clerk to forthwith issue the citation, and the duty of the officer to whom it is delivered is to serve it without delay. Rev. St. arts. 1213, 1218. When the plaintiff delivers his petition to the clerk, he has no further legal control over the action of the officers. The law secures to the plaintiff and defendant the benefit of vigilance in serving the citation. It is not an act to be performed by the plaintiff, or any one under his direction or control. We have found no case involving this question. The general rule, however, is settled by the authorities that an officer cannot contract to receive compensation for services in addition to those prescribed by law. Neither can he bind himself to accept less than the law allows him, nor to waive the remedy for collection provided by law. Mechem, Pub. Off. §§ 374, 376-378. This is placed upon the ground that, the compensation being prescribed by law, it is against public policy that it should be the subject of contract between the officer and litigants. The duties of public officers in issuing and serving citations are prescribed by law, and it would seem that for the same reason any contract between third parties which would involve any interference with the regular discharge of those duties, or that would impose liability for a failure of an officer to discharge them with vigilance, would be equally

against public policy and void. The part of the stipulation requiring service of citation to be made within 40 days was void. When one, for a legal and valuable consideration, agrees to perform two acts, which are severable, one of which is lawful and the other unlawful, the contract may be enforced as to that for which it was lawful to contract, and held void as to the other. But when the two things to be done are so blended that they cannot be separated, one lawful and the other not, the whole contract is void. Ohio v. Board of Education, 35 Ohio St. 519; Gelpcke v. Dubuque, 1 Wall. 221; Presbury v. Fischer, 18 Mo. 50; U. S. v. Bradley, 10 Pet. 343; Hynds v. Hays, 25 Ind. 31. One period of time is by this agreement designated within which two things are to be done.

No part of that time can be specified as that within which suit might be filed, and the limitation of the right of recovery avoided, without performing the other act,—of serving citation. It is apparent, therefore, that these acts are so blended that they cannot be separated, and the entire clause is rendered nugatory by including that which it was not lawful to embrace in the agreement.

The district court gave to the jury the following charge, which is assigned as error: "You are charged that a contract made by defendant's local agent or station master to furnish a given number of cars at a specified time would be binding upon the defendant, for a breach of which they would be liable in damages, and also that the defendant would be bound by representation and promises made by its station agent to furnish such cars from time to time." It is claimed that if the agent of the defendant at Ballinger had no authority to make the contract to furnish cars within a given time, but was in fact prohibited from so doing, the plaintiffs cannot recover, although they did not know of the limitation placed upon his authority. An act done within the scope of the apparent authority of an agent will bind the principal, although the agent may, by doing that act, violate his instructions, if the party with whom he deals has no notice of the limitation placed upon his power. Merriman v. Fulton, 29 Tex. 97. It is well settled in this state that a station agent of a railroad company can bind it by a verbal contract to furnish cars at a given time for the shipment of freight, unless the shipper knows that the agent has no such authority. Easton v. Dudley, 78 Tex. 236, 14 S. W. 583; McCarty v. Railroad Co., 79 Tex. 37, 15 S. W. 164. There was no evidence introduced or offered which tended to charge plaintiffs with notice that the station agent was not authorized to make the contract, and the court did not err in the charge given, or in refusing the special charges asked upon that point. Plaintiffs were not in a position to be chargeable with notice of the rules and regulations of the railroad company, nor was

there any evidence to show that they, or their agent, Day, had notice of any fact that would put a prudent man on inquiry as to the agent's authority. The printing of the rule upon this subject on the contracts could not be notice, for the reason that such contracts, in the natural course of things, would not be known to the shipper until after the contract for cars had been made. There was no error in excluding the evidence offered to show that the agent had no authority to make the contract. If the agent of the railroad company made a contract with plaintiffs or their agent to furnish cars at a given time to transport the cattle, then the fact that the shipment of cattle over the line of the railroad at that time was so great that it did not have cars sufficient to enable it to furnish the cars contracted for would constitute no defense to the action for the breach of that contract; and the court did not err in excluding evidence upon that point, nor in refusing instructions presenting that defense.

The court below permitted the following question and answer to go to the jury: "Question. What effect would the fall and summer market in the territory have upon the market value of the cattle at Ballinger at the time that they were shipped? Answer. It would have a good deal to do with the market value of the cattle here. After a certain time in the spring, the buyers here of cattle for shipment to the territory to be pastured would be gone." How the absence of buyers from Ballinger could have been foreseen by the railroad company, or how it could have affected the value of plaintiffs' cattle in the spring, before the time when the summer or fall market in the territory could possibly be known, we cannot see. So far as the facts and pleadings disclose the relation of this fact to the issue then being tried, it appears to have been wholly irrelevant, and should have been excluded; but it is not apparent that defendant was injured thereby, and the case would not be reversed for that error.

On the measure of damages, the court explained to the jury the law as the judge understood it to be applicable to the facts, and continued in this language: "From the foregoing, you will observe that the things for you to consider and find from the evidence are: First. Was there a contract as alleged between the plaintiffs and the defendant? Second. Would plaintiffs have been ready and willing to comply with their part of said contract but for the default of defendant? Third. Was said contract violated by defendant? Fourth. If so, did the plaintiff, while awaiting the shipment of said cattle, do with them what was reasonable under the circumstances? Fifth. If so, did they incur any expense, while so doing, in the hiring of hands and providing food for said cattle? Sixth. If so, how much for said hands, and what was the value of the food

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