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and that the trustee represented all cred- In every case where the beneficiaries are itors for the purpose of sustaining the deeds entitled to participate in a trust fund in prounder which he held for their benefit. Rail- | portions not fixed by the instrument, before road Co. v. Butler, 56 Tex. 511; Ebell V. the court can declare the part to which any Bursinger, 70 Tex. 120, 8 S. W. 77; Kerrison one of them is entitled, notice must be given v. Stewart, 93 U. S. 155. The reasons assign- to all the beneficiaries, if known. If not ed in support of the rule requiring bene- known, or if they are too numerous to be ficiaries to be made parties where the object | made parties, then the court can give such is to participate in the fund under the instru- notice and take such action as will enable ment by which the trust is created do not them to present their claims for adjustment. apply in this character of case. When it is The fund in this case is under the control sought to construe an instrument and en- of the court, and there are many creditors force it, the trustee is entitled to have the scattered throughout different states. The rights of all the parties interested deter- court should, before making distribution of mined, in order that he may be protected in that fund, give such notice as is practicable, the execution of the trust. He does not rep- that each may present his claim before the resent any of the beneficiaries so far as the court for inquiry and adjudication. This rights between them and other beneficiaries suit was brought with a view to that end, are concerned, but is supposed to be indif- and so alleges its purpose to be. The benferent in this respect. The beneficiaries eficiaries named in the deed of trust, whicb named in the deed, as well as all others en- attempted unlawfully to create a trust in a titled to participate in the fund, have the trust fund, were not necessary parties to this right to be heard for the purpose of estab-suit, which was prosecuted for the purpose lishing their own rights, as well as to contest of restoring the fund to its lawful purposes. the claim of any other asserting a right to The Farmers' & Merchants' Bank interany part of it. As before said, the object of vened in this suit, and the Paris Exchange this suit was not to distribute under, but to Bank became a party defendant. Each set set aside, the deeds of trust, and make di- up its debt against the Thomas-Lyons Hardvision according to law. In Ebell v. Bur. ware Company, claiming that the same singer, supra, the deed of trust conferred should be paid by the trustee, and asksuch limited powers upon the trustee that ing the court to order the payment to be this court held that he was not empowered made by him. The court continued the to institute and maintain suits alone with trustee, in fact, appointed him as receiver, reference to the property. The general rule --and took control of the property, ordered is announced in that case that, in a suit "by that he sell the property, and pay the proor against the trustee for the recovery of the ceeds to the creditors preferred, as directed trust property, the beneficiary is a neces- in the deeds of trust. The trustee sold the sary party." The decision recognizes the ex- property, and reported the payments to the ceptions to this rule, and cites the case of a two banks, which is not controverted. The general assignment, in which it is held that plaintiff filed his second amended original pethe assignee may sue or be sued alone so far tition, alleging, in substance, that they were as the possession of the property is con- not sufficiently informed as to whether pay. cerned. In that case the decision was placed ments had been made by Harrison to the distinctly upon the ground that the trustee banks to enable them to allege the fact of bad not such power as would enable him to payment, nor the amount so paid, but prayed sue alone for the property, nor such as would that the two banks be required to produce in authorize a suit against him alone. It can- court the money paid to each. The fact of not be doubted that a trustee with the au- payment and the amount paid to each were thority granted by these instruments could matters peculiarly within the knowledge of sue for the possession of the property con- the banks and Harrison, and, in the nature veyed to him thereby. In Hudson v. Eleva- of things, not known to the plaintiffs. The tor Co., 79 Tex. 401, 15 S. W. 385, it was allegations were sufficient to notify the banks sought to have an instrument claimed by of what was sought to be enforced against the trustee and beneficiaries named in it to them. Railway Co. v. Brinker, 68 Tex. 502, be a mortgage declared to be a general as- 3 S. W. 99; Lewis v. Alexander, 51 Tex. 585. signment, and to annul the preference there- In Lewis v. Alexander the court said: "The in provided for. Plaintiffs sought to enforce same strictness of pleading should not be rethis instrument as reformed, and claimed quired of plaintiff, who is not presumed to under it an interest in the fund antago- have a particular knowledge of the agree. nistic to the named creditors. It was held ment, that would be required of a party to that the creditors named in the instrument it.” The court had a right to order parties were necessary parties to the suit. We ad- to the proceedings to restore to the posseshere to this as a correct practice in that sion of the court the money which had been class of case; and in so far as Preston v. placed in their hands by an order of the Carter, 80 Tex. 388, 16 S. W. 17, is in con- court that was held to have been void or flict with the doctrine announced in Hudson wrongfully entered, the cause being still in v. Elevator Co. upon this point, the former course of adjudication. The evidence of case is overruled.

payment by Harrison to the banks was prop

erly admitted, under the pleadings and the Doss V. Waggoner, 3 Tex. 516; Hodges V. circumstances of this case.

Ward, 1 Tex. 244; Black, Judgm. $ 179; Plaintiffs in error claim that the district Freem. Judgm. § 121; Hammock v. Trust court erred in entering judgment against L. Co., 105 U. S. 77; Kinports v. Rawsom, 29 P. Harrison for the proceeds of sale of the W. Va. 496, 2 S. E. 85; 12 Am. & Eng. Enc. property in his hands, the greater part of Law, p. 14; Laughlin v. Peckham, 66 Iowa, which he had paid to the Farmers' & Mer- 121, 23 N. W. 294. Hodges v. Ward, cited chants' and the Paris Exchange Banks, under above, is very much in point. A måndamus the order of the ccurt. The correctness of was applied for against a collector of custhe judgment depends upon the validity of toms to compel him to deliver goods to the the order of the court made in vacation. If plaintiffs. The judge heard the application the court had the power to make that order in vacation, and ordered the collector to dein vacation, then, no matter how irregular it liver up the goods. The order was held to might be, the officer would not be liable for be absolutely void. In this case the order obeying it. If, however, the court had not which adjudged that the deeds of trust were that power, the order would be void, and valid, and ordered the proceeds to be paid would afford no protection to Harrison. He on the preferred debts, adjudicated in vacawas bound to know the law, and must act tion the very matter in controversy. The at his peril in the execution of a void order, statutes of this state do not invest the judge if the invalidity arises from want of power in of the district court with such authority, and the judge to make the order at the time it the order was a nullity. The court rightly was made. Freem. Judgm. $ 229; Freem. rendered judgment against Harrison for the Ex'ns, & 100; Gurney v. Tufts, 37 Me. 130; money that came into his hands derived from Howard v. Clark, 43 v0. 344; Laughlin v. the sale of the property. The judgment of Peckham, 66 Iowa, 121, 23 N. W. 294.

the court against Harrison was for the Under article 1461, Rev. St., the district amount that he had paid the two banks and judge had authority to appoint a receiver in his own claim, besides a small balance revacation, but no statute gave him power to maining in his hands, allowing him his exappoint a trustee in vacation. The judge penses and commissions. It provides for refused to appoint a receiver, but, on ap- crediting Harrison with the amounts to be plication of Harrison and the preferred cred-paid by the banks when paid, and no initors, authorized Harrison, as trustee, to exe- justice is done him. The money is ordered cute the trust in accordance with the deeds, to be paid to the clerk, to be held subject to and required him to give bond in the amount the future orders of the court, and Harrison prescribed by the judge, to return an in- can be protected in all particulars that are ventory of all property in his hands as trus- consistent with the rights of others in the tee, and to report to the next term of the disposition of that fund. court his action. It also declared the deeds Before this suit was instituted, the Baker of trust valid, and ordered the trustee to pay Wire Company filed a suit against Harrison over the proceeds of the property to the pre- to recover some of the property held by him ferred creditors, according to the directions under the deeds of trust. It was made a of the deeds of trust. Thus, the judge took party to this suit, and joined in the prayer control of the property, and made the “trus- for appointment of a receiver, and was subtee,” as he was termed, amenable to the sequently permitted to withdraw. That court. If the judge had appointed Harrison company would have had a right to sue Harreceiver, the same things would have been re. rison after he was appointed, without leave quired of him as were required by this order. of the court (Rev. St. art. 1468), and there He must, as receiver, give bond, as prescribed was no error in permitting it to prosecute its by the judge, to return an inventory, and re- suit already pending. Harrison could make port to the court. The conditions of the every defense in that case to which he was bond are not exactly such as are required by entitled, and, if he is entitled to protection the statute, but that was merely irregularity, | from the results, the court can, in the disand would not avoid the appointment as re- tribution of the funds, afford him such proceiver. He was called “trustee" instead of tection as he may show that he ought to "receiver," but courts will look to the sub-have. The judgment of the district court, stance of the action had, what it accom- as reformed by the court of civil appeals, is plished, and not to the particular terms used affirmed, and will be enforced, in accordance to denominate the character of the officer ap- with this opinion. pointed. 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 pro

HARRISON et al. v. WATERBERRY et al. tected in this case. A judge of the district (Supreme Court of Texas. June 7, 1894.) court in this state has no power to adjudi- PROPERTY IX RECEIVER'S HANDS-LIABILITY TO cate the rights of litigants except at the

LEVY. time and places prescribed by law for holding

1. Where property is in the hands of a recourts, unless the authority is conferred by

ceiver, it cannot be interfered with by an offi

cer under process issued in other cases, withstatute. Hunton V. Nichols, 55 Tex. 225; out the consent of the court under wbose control


it is, and an injunction should be granted to his possession some of the property held prevent such interference.

under the authority of the district court, and 2. Rev. St. art. 1468, permitting suits to be prosecuted against a receiver without the

prayed for a writ of injunction to restrain consent of the court appointing him, only au- and prevent the execution of the writ. The thorizes the plaintiff to establish his demand, injunction was granted. Defendants below and judgment thereon can only be satisfied by

filed a general demurrer, general denial, and order of the court appointing the receiver.

motion to dissolve the injunction. The disError from court of civil appeals of fifth trict court dissolved the injunction, and dissupreme judicial district.

missed the petition, which judgment was, by Injunction by L. P. Harrison and others

the court of civil appeals, affirmed. In Lyonsagainst L. Waterberry & Co. and others. Thomas Hardware Co. Perry Stove From a judgment of the court of civil ap- Manuf'g Co. (decided this day by this court) peals (27 S. W. 430) affirming an order of 27 S. W. 100, it was held that the facts the district court, dismissing the petition, alleged in the petition constituted the plainplaintiffs bring error. Reversed.

tiff in error Harrison the receiver of the Dudley & Moore and Maxey, Lightfoot & district court, and that the court, by the Denton, for plaintiffs in error. H. D. Mc- proceedings, took control of the property. It Donald and R. S. Ross, for defendants in is unnecessary to repeat the reasons given error.

and authorities cited. It is too well settled

to require authority that, when property is BROWN, J. This was a suit by injunction in the custody of the law, it cannot be interfiled by the plaintiffs in error to restrain fered with by an officer acting under process the defendants in error from executing cer

issued in other cases, without the consent of tain writs of sequestration sued out against

the court under whose control it is at the property in the possession of L. P. Harrison. time. Article 1468, Rev. St., permits suits The petition alleged and showed that in a to be prosecuted against a receiver without suit by the Perry Stove Manufacturing Com- first obtaining consent of the court that appany and others against the Lyons-Thomas pointed him. But this is only to establish Hardware Company and L. P. Harrison,

the right to recover and the amount of the trustee, and the Baker Wire Company, which

demand. The judgment must be satisfied by a general creditor's bill, seeking the

order of the court by which the receiver was appointment of a receiver for the Lyons- | appointed. It does not authorize the seizure Thomas Hardware Company, and to remove

of property in the hands of a receiver under the trustee, Harrison, and have a stock of writs of attachment, sequestration, or exegoods, etc., which had been transferred by

cution issued in other suits. Harrison was said hardware company, by chattel mort

in fact a receiver of the district court of gage, to said Harrison, as trustee, to secure Lamar county. The property in his hands the appellants, taken from his possession,

was in custodia legis, and not subject to and placed in the hands of a receiver; that

seizure under the writs of sequestration alin said suit appellants and others intervened,

leged to have been sued out against it. praying the court to take charge of the trust,

The district court erred in dissolving the inrequire the trustee to inventory the prop

junction and dismissing the petition, and erty, and give bond; that he be ordered to sell the court of civil appeals erred in sustainsuch property, and report his action at the ing the judgment of the district court, for next term of the court; that at the hearing which errors both judgments are reversed, of said application for a receiver and pleas

and the cause remanded to the district court. of intervention, on the 29th of November, for further trial in accordance with this 1889, the court ordered said trustee to hold opinion. 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

GULF, C. & S. F. RY. CO. V. HUME et al." as such trustee, and to sell the same, and

(Supreme Court of Texas. June 14, 1894.) report his action at the next term of the

CARRIERS - CONTRACT OF SHIPMENT – AUTHORITT district court of Lamar county, Tex., and that


URE OF DAMAGES, said trust be settled under the direction of 1. A clause, in a contract by a railroad comsaid court; that said trustee in all things pany to ship cattle, providing that no action for obeyed said order, and was in possession of

delay in transportation shall lie unless com

menced and citation served within 40 days, is the property under said order at the time

against public policy and void. appellees were threatening and attempting to 2. A station agent of a railroad company take from his possession portions of said

can bind it by verbal contract to furnish cars property by sequestrations, when he filed his

at a given time for the shipment of freight, un

less the shipper knows that the agent has no said petition, and obtained a writ of injunc

such authority. tion. The petition alleged that after peti- 3. Inability of a carrier to furnish cars tioner had qualified under the order of court,

contracted for owing to unusually heavy traffic or at least after the appointment, defendants

at the time, is no defense to an action for fail

ure to furnish such cars. in error sued out writs of sequestration, by which they threatened to seize and take from *Rehearing pending.

4. The measure of damages for delay in at Ballinger. Fifth. In the charges given op the shipment of cattle to a distant point for

measure of damages, and in refusing to give pasturage is the deterioration in their value caused by such delay, together with the excess

charges upon the same subject requested by in cost of keeping them at the point of ship- the defendant. The defendant pleaded that, ment over that of keeping them at the pas- for a valuable consideration, there was insert. turage.

ed in the shipping contract a clause by which Error from court of civil appeals of third it was agreed between it and plaintiffs that, supreme judicial district.

for the recovery of damages in certain cases, Action by Hume Bros. against the Gulf, including the character of plaintiffs' claim, Colorado & Santa Fe Railway Company for

no suit should be maintained in any court, damages to certain cattle resulting from de- unless it was instituted and service of citafendant's delay in shipping them. A judg- tion had within 40 days after the damages ment for plaintiffs was affirmed by the court

accrued. Plaintiffs excepted to this part of of civil appeals (24 S. W. 915), and defend- the answer, and the district court sustained ant brings error. Reversed.

the exception, which is assigned as error. J. W. Terry, for plaintiff in error. Willing

Two questions arise upon this assignment:

(1) Was' the stipulation unlawful in whole or ham & Jenkins, Powell & Smith, and West

in part? (2) If unlawful in part only, does & Cochran, for defendants in error.

the unlawful part render the clause void as a

whole? BROWN, J. Hume Bros. sued the Gulf, It was lawful for the defendant, by agreeColorado & Santa Fe Railway Company to ment with plaintiffs, to fix a reasonable time recover damages for the breach of a verbal shorter than that allowed by law within contract alleged to have been made by the which suit must be filed. Railway Co. v. station agent of the railroad company at Bal- Trawick, 80 Tex. 270, 15 S. W. 568, and 18 linger with the plaintiffs, whereby the rail- S. W. 948. Forty days has been held to be road company agreed to furnish to plaintiffs reasonable, under the facts of the cases in cars to ship a large number of cattle on a which the question arose. The reasonablecertain day. It is alleged that plaintiffs, in ness of the time fixed is generally a question pursuance of the contract, drove the cattle of fact, to be determined by the jury. The to Ballinger, and, on the day agreed upon, requirement that service of citation must be were ready to ship them; but the railroad made within a given time rests upon a differcompany failed to furnish the cars, and did ent ground. It is not a question whether not furnish them for a number of days there- or not the time agreed upon is reasonable, after, by which Hume Bros. were compelled but is it a subject about which the parties to hold their cattle at great expense, and could contract? Upon the filing of a petithat the cattle were, by reason of such hold- tion, it is the duty of the clerk to forthwith ing, greatly depreciated in value. The rail- issue the citation, and the duty of the officer road company filed a general denial and to whom it is delivered is to serve it without special pleas, which will be mentioned in delay. Rev. St. arts. 1213, 1218. When the the opinion in discussing the questions raised | plaintiff delivers his petition to the clerk, upon them. Upon trial in the district court, he has no further legal control over the acjudgment was rendered against the railroad tion of the officers. The law secures to the company, which was affirmed by the court plaintiff and defendant the benefit of vigof civil appeals (24 S. W. 915), and is now ilance in serving the citation. It is not an before this court on writ of error, upon the act to be performed by the plaintiff, or any following objections to the judgment: First. one under his direction or control. We have That the district court erred in sustaining found no case involving this question. The plaintiffs' exceptions to defendant's answer, general rule, however, is settled by the ausetting up the stipulation in the contract of thorities that an officer cannot contract to shipment that suit must be filed and service receive compensation for services in addihad of citation within 40 days. Second. tion to those prescribed by law. Neither can That the court erred in charging the jury he bind himself to accept less than the law that the railroad company was bound by the allows him, nor to waive the remedy for colcontract to furnish cars to plaintiffs at a cer- lection provided by law. Mechem, Pub. Off. tain time, if it was made by the station 88 374, 376-378. This is placed upon the agent of the company, and in refusing special ground that, the compensation being pre charges asked by defendant, and also in ex- scribed by law, it is against public policy cluding evidence which was offered by de- that it should be the subject of contract befendant to prove that the agent did not have tween the officer and litigants. The duties authority to make the contract. Third. In ex- of public officers in issuing and serving citacluding evidence to show that the shipment tions are prescribed by law, and it would of cattle at that time was so heavy that the seem that for the same reason any contract railroad company had not sufficient cars to between third parties which would involve supply the demand, for which reason the any interference with the regular discharge delay occurred in furnishing cars to plain- of those duties, or that would impose liatiffs. Fourth. Admitting evidence as to ef- bility for a failure of an officer to discharge fect of market in the territory on market them with vigilance, would be equally


against public policy and void. The part of there any evidence to show that they, or the stipulation requiring service of citation their agent, Day, had notice of any fact that to be made within 40 days was void. When would put a prudent man on inquiry as to one, for a legal and valuable consideration, the agent's authority. The printing of the agrees to perform two acts, which are sev- rule upon this subject on the contracts could erable, one of which is lawful and the other not be notice, for the reason that such conunlawful, the contract may be enforced as tracts, in the natural course of things, would to that for which it was lawful to contract, not be known to the shipper until after the and held void as to the other. But when contract for cars had been made. There the two things to be done are so blended was no error in excluding the evidence ofthat they cannot be separated, one lawful fered to show that the agent had no author and the other not, the whole contract is void. ity to make the contract. If the agent of Ohio v. Board of Education, 35 Ohio St. 519; the railroad company made a contract with Gelpcke v. Dubuque, 1 Wall. 221; Presbury plaintiffs or their agent to furnish cars at a v. Fischer, 18 Mo. 50; U. S. v. Bradley, 10 given time to transport the cattle, then the Pet. 343; Hynds v. Hays, 25 Ind. 31. One fact that the shipment of cattle over the period of time is by this agreement desig- line of the railroad at that time was nated within which two things are to be great that it did not have cars sufficient to done. No part of that time can be specified enable it to furnish the cars contracted for as that within which suit might be filed, and would constitute no defense to the action for the limitation of the right of recovery avoid- the breach of that contract; and the court ed, without performing the other act, of did not err in excluding evidence upon that serving citation. It is apparent, therefore, point, nor in refusing instructions presenting that these acts are so blended that they can- that defense. not be separated, and the entire clause is The court below permitted the following rendered nugatory by including that which question and answer to go to the jury: it was not lawful to embrace in the agree- "Question. What effect would the fall and ment.

summer market in the territory have upon The district court gave to the jury the the market value of the cattle at Ballinger following charge, which is assigned as error: at the time that they were shipped? An"You are charged that a contract made by swer. It would have a good deal to do with defendant's local agent or station master to the market value of the cattle here. After furnish a given number of cars at a specified a certain time in the spring, the buyers time would be binding upon the defendant, here of cattle for shipment to the territory for a breach of which they would be liable to be pastured would be gone." How the in damages, and also that the defendant absence of buyers from Ballinger could have would be bound by representation and prom

been foreseen by the railroad company, or ises made by its station agent to furnish how it could have affected the value of plainsuch cars from time to time." It is claimed tiffs' cattle in the spring, before the time that if the agent of the defendant at Ballin- when the summer or fall market in the terger had no authority to make the contract | ritory could possibly be known, we cannot to furnish cars within a given time, but was see. So far as the facts and pleadings disin fact prohibited from so doing, the plain- close the relation of this fact to the issue tiffs cannot recover, although they did not then being tried, it appears to have been know of the limitation placed upon his au- wholly irrelevant, and should have been exthority. An act done within the scope of the cluded; but it is not apparent that defendant apparent authority of an agent will bind the was injured thereby, and the case would principal, although the agent may, by doing not be reversed for that error. that act, violate his instructions, if the party On the measure of damages, the court ex. with whom he deals has no notice of the plained to the jury the law as the judge unlimitation placed upon his power. Merriman derstood it to be applicable to the facts, and v. Fulton, 29 Tex. 97. It is well settled in continued in this language: “From the fore this state that a station agent of a railroad going, you will observe that the things for company can bind it by a verbal contract you to consider and find from the evidence to furnish cars at a given time for the ship- are: First. Was there a contract as alleged ment of freight, unless the shipper knows between the plaintiffs and the defendant? that the agent has no such authority. Eas- Second. Would plaintiffs have been ready ton v. Dudley, 78 Tex, 236, 14 S. W. 583; and willing to comply with their part of said McCarty v. Railroad Co., 79 Tex. 37, 15 S. contract but for the default of defendant? W. 164. There was no evidence introduced Third. Was said contract violated by deor offered which tended to charge plaintiffs fendant? Fourth. If so, did the plaintiff, with notice that the station agent was not while awaiting the shipment of said cattle, authorized to make the contract, and the do with them what was reasonable under court did not err in the charge given, or in the circumstances? Fifth. If so, did they in. refusing the special charges asked upon that cur any expense, while so doing, in the hirpoint. Plaintiffs were not in a position to being of hands and providing food for said chargeable with notice of the rules and reg- cattle? Sixth. If so, how much for said ulations of the railroad company, nor was hands, and what was the value of the food

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