CENTRAL TRUST CO. CENTRAL TRUST CO.
st. L. BY. CO.
TEXAS & ST. L.
In re WATERS
OIL Co., Intervenor.!
(Oircuit Oourt, E. D. Missouri. April 8,1885.)
1. RAILROAD LIENS-OILS-REV. ST. Mo.
+3200, OONSTRUED. Lubricating and illuminating oils are not" materials." within the meaning of section 3200 of the Hevised Statutes of 1tiissouri, and parties turnishing them are not entitled to any statutory lien.
2. MORTGAGES-MATERIAI.-MEN-EQUITABLE LIENS.
Where materials necessary for use in the management of a railroad were furnished from time to time fmm October 17, 1882, to January 10,1884, inclusive, and two notes were given for a part of the amount due therefor, dated, respectively, October 15,1883, and December 12,1883, both due fOlIr months after date, and the milroad defaul: ed in the payment of its bonded interest, September 1,1883, and a receiver was appointed January 12,1884, and the materialmen filed their claim for the whole amount due, and surrendered their notes for cancellation, held, t.hat they were only entitled to an equitable·lien superior to that of the mortgagees, for the amount due for materials furnished after the railroad company's default.
Exceptions to Ma.ster's Report. The claim of the intervenor in this case is for a balance of $2,861.91, due it for lubricating and illuminating oils furnished the Texas & St. Louis Railway Company, at various times from October 17, 1882, to January 10, 1884, inclusive. Two promissory notes executed by said railway company, on account of part of said indebtedness, one for $1,376.76, and dated October 15, 1883, and the other for $1,844.04, dated December 12, 1883, both payable four months after date,-were surrendered for cancellation. It was conceded that the oils were necessary for use in running the road. Default in the payment of interest took place September 1, 1883. A receiver was appointed January 12, 1884. The intervening petition was filed April 5, 1884. The intervenor claimed a lien under the Missouri Statutes, which provide (Rev. St. § 32(0) that "all persons who shall do any work or labor in constructing or improving the road-bed, rolling stock, station-houses, depots, bridges, or culverts of any railroad company incorporated under the la.ws of this state, or owning or operating a railroad within this state, and all persons who shall furnish ties, fuel, bridges, or materials to such railroad company, shall- have .. · · a lien," etc. The master reported that the intervenor is not entitled to any lien under said statute, because oils are not materials, within its meaning; but ig entitled to an equitable lien for all oils furnished since the railroad company defaulted in the payment of interest. W. R. Woodward and J. D. Johnson, for intervenor. Phillips cf: Stewart, for receiver. Butler, Stillman cf: Hubbard and Eleniou8 Smith, for complainant.
Reported by Benj. F. Rex, Esq., of the St. Louis bar.
BREWER, J., (orally.) In the intervening petition of the Waters Pierce Oil Company, in the case of Gentml Trust Go. v. Texas Ii St. L. By. Co., the question presented is whether the oils furnisheil by the intervenor come within the Missouri statute in reference to liens. The language of the statute contains the word "fuel," in addition to the words "labor and material;" and it is claimed that the use of the word "fnel" enlarges the meaning of the word "material," and makes it broad enough to cover all supplies furnished. But for that word "fuel" there would be no question. The idea which underlies these statutes is that because the labor and the material have gone into the building of the road or structure, and to that extent added to its value, therefore a lien for such labor and material should be given to him who does the one and furnishes the other. Now, fuel does not go into the structure of a railroad; neither does coal oil. It is something used in the running of the road; a part of the supplies necessary for the operation of the road, but nothing which Roes into the enduring structure. While we may be compelled to follow the language of the statute, and give for the fuel furnished a lien, vet I think in the construction of these statutes we should start from the nnderlying thought of giving security to him who adds to the value of the road, and that we should never carry the statute beyond that, unless imperatively demanded by the langnage nsed; particularly, as Brother TREAT suggests, when it would operate to override prior mortgages. So that, while that word "fuel" is in there, I take it it is not fair to give it the force of enlarging the meaning of the other words, "material," etc., but it should be considered as a new term, something added by the legislature, carrying its own weight, but giving no different meaning to the word "material" from that which it possessed in prior statues, and, in fact, changing the statutes only in this reo spect: that it adds a certain specified matter for which a lien is given. The master was correct in his conclusions. The exceptions will be overruled, and the report confirmed.
BLAIR v. ST.
H. & K. By. Co. and others.
In re MERRIWETHER and others, Intel'Venol's.1
(Oircuit Oourt, E. D. Mis,qoun.
April 29, 1885.)
RAILROAD MORTGAGES-LIEN OF :M:ATERIAL-MEN-STATUTE OF FRAUDS.
Wl1ere supplies used for rebuilding bridges, building side tracks, and in mak. ing repairs, were furnished a railroad company from time to time under a continuous verbal contract made after default in the pftyment of the company's bonded interest, and which was not terminated until the appointment of a re1 Reported by Benj. F. Rex, Esq., of the St. Louis bar.