under the bill and. looks money decree as "the' only a:deqliate ieli!lf attainable, for it is made up almost entirely 6f injuries suffered, 'and dainages therefrom. A court of law can, as well as, ifnot better 'than, a court of equity, assess any and all damages the plaintiffs are entitled to recover in the premises; and a jtidgment for damages in money furnishes to the plaintiffs a plain,adequate, and complete remedy. A decree will be entered dismissing complainants' bill with costs, but witholltprejudice to the right to proceed at law on the same grounds of action.
WABASH; ST. L. & P.Ry. Co. (CHICAGO, CO.,
(Cz";ocuit CQU'ft. No D. lllinoiB.· March 14, 1888.)
& Q. Ry.
CARRIERS - COMMON CARRIERS 01' GoODS'- RECEIVERS ...... DUTIES -,., BOYCOTTS AND, STRIKES. ,".' , " . ', "
.The petition of the Chic\lgo, Burlington & Quincy Railway Company, intervenor in the: Waba8h Ca8e, represented ihat the receiver appointed by the court had tssued, an order in violation of his dpties as a common carrier; an,j of a custpm,prevailing between the two roads, instructing his agents andsubordinates totMeive no more through freight cats of the petitioner, and that, in pursuanc80f such order, freight of that'character offered by the petitioner had been refused, although the proper aJ;ld usual tender of expense bills had been made with the offer. It ,also alleged that the Brotherhood of Locomotive Engineers had commanded a strike on petitioner's road; and, in order to boycott it, had: issued instructions to its members on the Wabash and other connecting systems not to handle any of petitioner's freight., ,The prayer was for a peremptory order on the receiver to compel him to take such freight, foi an injunction on the Brotherhood to prevent it from interfering with,the W engineers, and f9r ,a rule on the officers of the Brotberhovd to show cause why they should, not he punished. f15r contempt. The answer of the receiver admitted the issuance of the order complained of, but set out that it was intended to he temporary only, and was, as a matter of fRct, rescinded two days after the. petition was filed, arid another order made estahllshing intercourse on the old basis, and that this order was meant to he permanent. It was denied that the receiver or any of his engineers had been lnterfered with in any manner by the Brotherbood, or that the first order was promulgated under moral duress of that association. Held, that the objectionable order hav!ngheen permanently interference havlDg b6e'n proven, neither the peremptory order, not the lDJunct!on,' nor the rule, aSked for shouM' issue, b'ut that the petition should· remain on file for fur,ther action should any occasion therefor arise.
The fact that a railroad 'Is in 'the custody of the court does not render the receiver appointed by-the court any theles8 a common carriei'. Rnd ,he cannot', loadeji as such carrier, refuse to receive from and (leliver,to or empty freight cars ofthat company because, by doing so, his own road may become.involved in' a strike vi locomotive engineers, whose assOciates have "gone'out"on: sU'ch (connecting road, and who are attempting to boy:cO.tt it., ( . ' ,
.'. . . '.
SAME-:EMPI,IOYES OF RECEIVER-RHUlrS ANDLI,A.BILITIES, ·· ,
locomotive engineers of Ii. railroad in the hlj,nds 'of a receiver cancompelled b, the havIng thei-oad in custody t6 remai!1 in the seI:VlCe of the receiver, neltber they, !lor the "Brotherhooq "tqwhlch they ,belong, wil,l be permitted tointerfere with or distu;" th" r"".fjiver or his subor· dinates in the possession and operation of the propertY.
BEERS'll·. WABASH, ST. L. &: P. BY. CO.
In Equity. In re petition of the Chicago, Burlington & Quincy Railroad Company. Wirt Dexter and Henry Crauiford, for intervenor. Isham, Lincoln &- Beale, and George W. Smith, for receiver.
GRESHAM, J.The Chicago, Burlington & Quincy Railroad Company, with leave of the court, filed its petition in this suit, charging that until a recent date the receiver of the Wabash property freely interchanged cars with the petitioner, and all other companies having lines of road entering the city of Chicago;.that on the 6th of March the petitioner tendered to the receiver's'usualagent, at the usual place of delivery at Chicago, eight cars loaded with grain, the same being destined for delivery at points on, or to be shipped over the lines in the receiver's custody; that some of these cars belonged to the petitioner, some to other compahies, and one to the receiver, and all were loaded for continuous passage, either at pointsin Illinois, and destined to points outside of that state, or loaded at points outside of the state of Illinois, and destined. for continuous passage to points within the state, the proper expense bills being tendered to the receiver's agent, who, acting under express orders orthe receiver, refused toreceive, transport, or deliver such cars, or any others; that this action of the receiver's agent was in obedience to instructions from the receiver directing his agents and employes to receive no loaded cars from, and to deliver no loaded cars to, the petitioner, and to cease all traffic relations with it; and that the receiver's agents at other points ofjunction ofthe railways under his charge and those of petitioner, when applied to, informed. the agents of the petitioner that they were under specific orders to neither deliver to nor receive from the petitioner cars loaded with freight. The petition further charges that the receiver's agents and employes gave as the sole reason for refusing to so interchange freight that the rereiver's switching and other engineers had notified him that they would handle no freight cars coming from or going to the lines of the petitioner; that such engineers belonged to the Brotherhood of Locomotive Engineers, whose grand chief engineer, or Committee of Grievance, had notified all engineers belonging to such Brotherhood to refuse to handle cars coming from or going to the petitioner, and that in compliance with this action of such engineers the receiver had issued the instructions already named; that the Brotherhood of Locomotive Engineers have secretly resolved that a boycott shall be put into effective force all its system, and all intercourse or exchange against the petitioner of cars between it and other connecting railroads, including the lines in the custody of this court; that P. M. Arthur, as the chief executive ofli-cer of the Brotherhood, has been in Chicago for 10 days, giving aidandJ direction to the members ofthe Brotherhood; and for the purpose juring the petitioner's business, and rendering it impossible for it to dis-charge its duties as a carrier,he has issued instructions to the members .of the Brotherhood employed by the receiver not to allow thEdr engines to be used in hauling cars going to or coming from "the petitioner's line .of milroad; and that the action of the receiver and his subordinates, in
10ade<;1 freight cArs with 'the :petitionel'; was the result of moral duress thus created by the Brotherhood, including the engineers in the receiver's service.:,The prayer of the petition is that a peremptory orderl.le· issued 'directing and requiring'the receiver and his subordinates to interchange business with the petitioner accordiIlg to usage; ,snfi l<habstain from the declare<l:policy of non-intercourse with the petitioner; also that the Brotherhood, of Locomotive, Engineers; its oflicers,Agents, and committees, be enjoined from issuing any orders or instructions to 'any, of the engineers ill the service of the receiver as to what cars ;they shall :haul over the Wabash tracks,' and thllt such associ. be required to show ation and its: officers, and e::lpecially Pi oause why"they should not be punished for' contempt in interfering with the propertJ<in the custody of the court. ' ' The receiver's answer admits the existence of the uSllgeof interchanging'loaded,cars lletween himself and the petitioner, but averS that. such interchange- 'has, been small; the receiver's receipts ,therefrOln during, the month o£Januarybeing less than $500. The anSlVer averS that the petiti0ner owns and operates a system of railways 'occupying much, oLthe, territqry tributary to the lines oftheWabashCompany, and that, are directly competitive at many important points. The the two answeradmitathat the receiver's agents declined to receive and haul the eightcarstamdered as stated inthe petitiQn;but avers that .atthe time of such tender and refusal the receiver ,had issued no orders. and given no instructions:whatever to his agents at employes,: with respect to' the interchange 'of business with, the' ,bUt admits that on the day following·suoh tl'l1der and refusal the receiver issued instructions to his agentstol1eceive no cars oithe petitioner for the present, but to transfer from the cars of the petitioner all freight tendered to the Wabash,and to take no freight originating on the system, except as local freight. :'Fhese, instructions were issued. the allsweravers.because there was that a continuance of interchange of business would cause the Wabash engineers to leave the receiver's employment; and thus inflict great injury. Upon the property in his custody; that the. instructions were for only-a temporary suspension of interchange of cars between the ceiver and the petitioner, anel thatthereeeiver never announced any absolute and permanent policy of that on the 10th of March (two days after the petition was' filed) the receiver, promulgated to" the officers and employes in his the following order: "All orders heretofore given byrne, or, oy any officer or agent of this road, have been understood, as limiting the interchange 01' cars or traffic with,the Chicago, Burlington & Quincy RaiJi"oad. or any of the mads in that system,are hereby rescinded. The business of receIving and exchauging:ears. anll,tllaftlc by thhH()lW wit1:\tbeC.B. &Q.llailroad OOI).1pany, and tlle rOllt'lsiof that system. will go on,upon the same terms and conditions UpOTl simililr businessis done by this road with oth'er connect, ing railroa.ds." ' "
It is averl'ed in ,anSwer, and. bytbe, receiver and his counsel in,' open court, that this order will, be enfofcedinthe future. It is fUllthel" ,
BEERS V·· WABA.8H, ST. I·· '" P. RY. CO.
averred that the receiver'consuitedno one except hialsubord,inatesas tQ the propriety of issuing i8iDdenforcing ,the rescinded instruc,tiona; anci that he has had no communication or conversation with P. or anyone representing him, respecting the operation of the Wabash Railway; and it is denied that the receiver has acted under moral duress exercised by P. M. Arthur, or anybody representing or connected with him, or that Arthur has ever in any manner obstructed the management or operation of the property incust()dy of theCQurt. The answer concludes with the statement that the receiver believes this proceeding was originated, not so much from a desire to procure a resumption of the unimportant traffic of the petitioner with the respondent, as in the hope that fihefiling<>f the petition; and action thereon,would render the receivel); incapable of managing the .Wabash property, and that a large amount of the business now done ,by itiwoqld go to the petitioner asa cO)Jlpetit9r'. ' '
" Nthough the propertyo(iAe Wabash Company is in the CUBtddy of the;court"jt is operated by' the receiver as a common carr·ter., and duties are those of aearrij!lr. He is bound to afford to all railroad companies whose Hiles c6D'nect"with his equalfa:cilities for the exchange of traffic. It is his duty to receive from and deliver to roads both loaded and empty cars. He cannot discriminate against one road by maintaining a policy of non-intercourse with it. More need npt be said on this question, as the receiver has wisely rescinded the instructibns ;Which,discriJujt:¥\ted agaiw>t, petitioner, and declares he has, no purpose or t9deriy to the any of its legal rights. Although th,e petitiqner accompliahM chief purpose in invoking the ilid of the court4 ifisurged byits CoB#se1that persons belortging to the Brother.. hoodof.LQqomotive, especially P. 1\.[ Arthur, who is the officerolthat interfered with the receiver and his in tne of the Wahashproperty·. and' that they f:;hould be.pul1if?hed for't4¢lr illegal andcontumaciolls conduct.' The reo ceiver and his counsel no such complaint. On the contrary, the receiv.er declares that there has been no. sucn interference with him. While the affidavits submitted ill support of the }letition show'that MI'. Arthur aent a to the engineers of the Union; Pacific Railroad Company at 01I\alia, dIrecting them to haul no cars of tioner,itpoes notfairlyapp.ear.from the evidence that the engineers'in the service of the re.ceiver received such orders by telegraph or otherwise. For the present it is to say that the court will protect the 1'ropof the Wabash Company in its custody. The employes of the rebe ohliged remain in his servlce against their will, but ,neither they nor others be permitted to interfere with or disturb the receiver or the possession and operation aBhe property ill his custody. with the receiver and his em· ployes in the discharge of their duty will not be tolerated. His proper to state, the Wabash engineers, that they' do not desire to maintain an 'attitude 6f defiance to the law,andthat now willing to aid the receiver in the lawful and successful administra-
tion'ofllls trust. The receiver's answ.er renders it unneeessary for the court toao more than direct thatdhe petition remain on tile for future action Sho\11d' there be occasion for it.
'(Virtu;t (Jourt, P. D. NeM York. ' Maroh 16, ,1888.)
OOnPORATTONS.;...:0FFtCERS AND. AGENTS ..... FRAUDULENT COMBm.uTO!'S- RWHT& OF ,THTRpP4,RTIES. . " . ."
, ,An fora valuableconsideratiop. of all the claims and tights of ac:tion at law brl'Il.' e'quity of a corporatIOl'1'against its former directors and trustees, who, by a fraudulent combination with outsiders, succeeded in wreckconcl\rn, 1tnd to !lnd. who, by and malpractICe, secured the dismIssal of bonafide sUItsIDstltuted by 'the'corporatibnagainst'themselves to recover the property, has no standing in a court of equity as against sujlh ip. the 8):ls.ence of. allegation and proof that hllis a creditor,or of the ,corporation. '
iQp"demurrElr for complflinapt'. .for
the <!tefendants. heretoforedirectors of the )Etija Axle & Springvompany, It Connecticut by afrau,dulent'.arid corrupt combination with outside 'partiest ,carry out a secret conspiracy tq .wreck the company; that they Pli!l!tppropriated its funds and propertyto their own use, and defrauded,and qespoiled its creditors and 'stoekholders, realizing by theirupwards of$17/)',000 of afsaid company; that thecom,paRY ,has attempted, in gQod to recover the moneys, thus misappr,?ipriated,. by ,causing actions' for tM sarrie or some part theTepf to in itl! behalf against some of the defendants; but Hby collusion and malpractice said suits have been dismissed, discontinued.or corruptly disposed of to the greatinjury of the comits cr:editorR,. and stockholders." The bill, tlien avers that compl./'rinant is.. for a valuable consideration ' * of all and its cllj,ims, demands, and rIghts of action, * * * either in law or in, equity, against the ,defendants." By, such an assignment c;:omplainan,tiiJhtained no proper title to institute such a suit as this. Gt'ahq,rn v. Raur/Jad Co., 102 U. 8.)48. It was claimed on the argume))t that he,is8:creditor an4 It stockholder of the company. There is no such averrnent in the bill. If he has rights in that character he may no· dop.bt but he has not out any such cause of aCtl:on in. thisbill.!, . ' The demurrer is sustained, with leave to amend the bill.