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.
BLAIB V. ST. LOOIS, R. &I K. BY. 00.
ceiver, (more than two years after the first supplies were furnished,) heZd that. notwithstanding the statute of frauds, the material-men were, under the circumstances, entitled to judgment for the balance due them, and to a lien for due on the earnings of the road, superior to that of the mortgage the credItors.
Motion for Rehearing. For a statement of facts and opinion on exceptions to master's report, see 22 FED. REP. 769. In Central Trust Go. v. Texas d; St. L. Ry. Co., referred to in the opinion, the following order concerning intervening claims was made. viz. :
"That an outstanding debts of the said railway company for labor, materials, and supplies used in the equipment or permanent improvement of the said railroad, and all outstanding debts for necessary operating and managing expenses thereof in the ordinary course of its business, incurred after the first day of September, 1883, shall be allowed by the master as equitable liens, prior in right to the lien of the mortgage sued on, irrespective of statutory liens therefor. And it is further ordered that all such claims accruing on open running accounts between said railroad and its creditors shall be considered as embracing within this order, if any part of the work was done, materials furnished or expenses incurred after the first day of September, 18t!3, on subsisting contracts necessary for the continued operation of the road by said receiver; otherwise the demand will be limited to what accrued subsequent to said September 1st."
September 1st was the day upon which default took place. Walter C. Larned and Theo. G. Ca.se, for complainants. John O'Grady, for receiver. Dyer, Lee d; Ellis, for intervenors. BREWER, J., (orally.) The same principle announced concerning the intervening petitions in Central Tr'ust Co. v. Texas d; St. L. Ry. Co. will determine the case of Merriwether v. St. Louis, H. d; K. Ry. Co. Some criticism was made in the argument on what was said by Brother TREAT as to the mortgagor being agent of the mortgagee after default in the payment of interest. I do not think my brother TREAT meant to be understood aelaying down as a general proposition that wherever there was default the mortgagor became the general agent for the mortgagee for the contraction of debt. Certainly, if he did, I should not feel like agreeing with that view. But that was simply one argument in support of the general conclusion he reached, that in that particular case, there being a subsisting contract for the furnishing of all the lumber on a specified tract, and which had not been all delivered, the mortgagor might be properly treated as authorized by the mortgagee to act as his agent. The motion for rehearing will be overruled. v.23F,no.14:-45
FEDERAL REPORTER. 1
(Oircuit Court, E. D. New York. February 24,1885.)
VERDICT-POWER OF COURT TO ConnECT MIS'fAKE IN.
'Where a jury, in an action for services, returned a. verdict for plaintiff for $3,500; and two days after, while counsel for both were the court directed the jury to be recalled, and they all, on bemg asked If that was their verdict, answered that it was not,-that their verdict was for $3,500, with interest,-lleld, that the court had power to cause the mistake to he corrected, and that plaintiff should }lave judgment for $3,500, and mterest.
Motion for Judgment on Verdict. P. W. OstrandM', for plaintiff. Deforest ti; Weeks, for defendant. WHEELER, .J. This is an action to recover for personal services rendered while the plaintiff was a director and treasurer of the defendant. The jury was directed to return a verdict for the plaintiff for such services ashe rendered, if any, outside the scope of his duties as:director and treasurer, at the special request of the president and the rest of the board of directors, and that if they found for tile plaintiff they might allow interest from the time when the services were completed. Late in the day they returned a verdict for the plaintiff for $3,500, and the court was immediately adjourned to the next day. During the next day a statement wits made to the court that the jury intended to give a verdict for $3,500, with interest. On the morning of the next day after that, and on notice to defendant's counsel to be present, and while the counsel for both parties were present, the court directed the jury to be recalled to their places, and that the verdict, as recorded, be read to them, and that they be asked if that was their verdict. Tbis was done, and the foreman answered that it was not; that their verdict was for $3,500, with interest. Tbey were directed to compute the interest and agree upon the amount, which they did; and answered that it was $2,038.20, making $5,538.20, and that their verdict was for the plaintiff for that amount, which was ordered to be recorded, and the jury, being interrogated separately, all said that that was,their verdict. At the same time an affidavit of all the jurors was presented and filed, stating that the verdict agreed npon was for the plaintiff for $3,500, with interest. The plaintiff now moves for judgment on the verdict for the full amount. The defendant objects to judgment on the verdict for any more than $3,500, on the ground that interest was not recovemble, and because it was not within the power of the court to allow the verdict to be varied after it had been received and recorded. As the services were rendered on special request, and to be paid for, the pay was due when they were performed, and after that time was detained by the defendant against the right of the plaintiff to have it. Under
lReported by R. D. & Wyllys Benedict, Esqs" of the New York bar.