aDTBAL TBUST OO.'OF :NEW YOU: 11. WABASH, S'r. L·· P. BT. 00.
CJCN'rBAL TBUS'l 00. 0., NEW You: e. WABASH, ST. 1.& P.
Ry. Co. d ale
E. D. MiB,.n4ri, E. D. June 4, 1ll9J.) No.. 2,857, 2,464.
R.pAm. The rule of the civil law that a bailor for hire is bound to keep the tblng in repair is not recognized by the common law, and, in the absence of express contract, the question as to which party is bound to repair largely depends on custom and usage and the character of the article. It is the usage in this country for all railroad companies receiving can froJD other roads to make necessary repairs at their own expense, unless the car is· inspected and branded as defeotive when received; and in view thereof a comp",ny which claims cars belonging to another road, and, pending a judicial determination of the titlethereto1 Is by agreement permitted to retain and use them subject to a rental in case the aec1sion is against it, cannot, after such decision, set oft agalnat the rental any claim for the cost of repairs. In a controversy between two nilroad companies, their receiven and creditorll, as to the rentals due for the use of certain rolling stock, defendant will not be permitted, after the filing of the master's report, to amend Its answer 80 as to intel'pose a new setroft, when it appears that tlle same claim Is. tile subject of a crou.bill pending In another court, where the matter can be adjudicated on Its merits.
L BAME...,..USE OJ' RAILWAY RoLLING STOOK-USAGB.
In Equity. This controversy arose during the process of disintegration of the Wabash, St. Louis & Pacific Railway Company under the receivership as administered by Solon Humphreys and Thomas E. Tutt. The case is now heard on exceptions to the master's report on the vening claim of the Omaha & St. Louis Railway Company to recover compensation for the use of certain rolling stock held and used by the receivers, but which was subsequently adjudged to belong to the intervener. A full statement of the facts may be found in 42 Fed"Rep. 343, and 46 Fed. Rep. 156, the latter being a report of the opinion ofJudge THAYER, overruling a demurrer to the intervening petition. Theodore Sheldon, for intervener. F. W. Lehmo,n, (W. H. Blodgett, of counsel,) for defendant. THAYER, District Judge. The court is unable to concur in the view that the Wabash Company is entitled to a credit in the sum of 840,607.37 for moneys said to have been expended by it in making repairs and in paying taxes and insurance on the intervener's cars and engines while the same were in the possession of the receivers, Hum phreys and Tutt, or in the possession of their successor in interest, to wit, the new Wabash Company. The true relation of the receivers and their successor in interest to the equipment in question was that of bailees for hire, and a bailee of that kind is clearly liable for all repairs to the article hired that were rendered necessary by his own neglect or want of ordinary care. In a case of thie character, where the bailor sues to recover compensaan offset tion for the use of the article hired, and the bailee for repairs made while in his possession, it is the latter's duty to show that the expenditures were justifiable, that they inured to theadvantllge of the owner, and were not rendered necessary by any fault or neglect on the ,part. of the bailee. Schouler, Bailm. (2d Ed.) § 23, and cases (lited. There is no proof in the present case that would authorize' the
court to hold that the sum of $40,607.37 was properly expended by the.(Wtbash ,Com"panydlY equipment'Qf had got out of order as the resu1'& of,'ordiW1ry wear and tear, and without fault on t£llJ?lut " be cop?ede1. would be eqmtably entitled tOllI1, for expendItures m repauing such defects in equipment as were not due to the ba,ilee's fault, tliJere is :no!evidence .j,hfthe'C8sethat would enable the court to say 'what the19ta1ii.t,rii"61aimed was so" is properly chargeable to the Omaha Company. (d' . c<lq,r,Us of the oft'setsinterp-osedby theo,WeooBhCompany,caU be allowed for another reason. By the civil to 'thing i? repaWrBultable for, use. No such absolute hablhty, is recognized by theCdtrull?:nl11w." thebl;lilor or the bailee is bound at common law to pay tlle ordinary,'expeQraes inCident tQ while of the ilee,lPS to depend oil ,custom and usage and the character ofthtr"$rticle, ,when ,tb$'lJ)atter by express contract betweeri' I the parties.'S6liouler, § 152; Story (9th Ed.) §§688,889,392. in the case at bar shows that all railroads in: the habit of ,repairing cars received from otber ,roads at theiroWll 'eipense if repairs are deemed, necessary, unless the cal· is inspected and:branded as defective when it iSlleceived. This practice has become so universal that it bas been forLnulnted as a rule Car Buildenl'Association, to which rule all of the leading by railroad companies throughout the country have assented; (The letter written.bylthe general agent under date of March 1, 29, 1889, between the genlWA.BASH, ST. LOTJIS &PAO. RAILWAY.
,'. SOLONH17IlO'Jt811nand THOMUE. TUTT, Receiver.. JAMES F. How, Gen. Alil'ent for the Receivers.
" , , ST. LOUIS, Mo., Mch. 1st, 1886. Gi'll''i'tmhrJt:!' :Ail a qnes\ldnllXistsas to whether the patties interested in the bonda oa tlie p.,B.: Ry.,(9Yl.aha division oftbe 'Wabash) b.ave any title, to any of Lhe equipment now in the possesslOn of the receivers of the W., St. L. & Pac. Ry., and, it
how DlUcn of It, I think tbebest arrangement that could be made would be, for us tofurnjshs¥ob as, YOI1 on that line, for you to keev, accurate account of the aJno4nt the Wabash rOa« wpuld be entitled to for the use of it. This, on the basis of "l2a;llermonth !for locomotives, f3.00 a day' for passenger eare,'L50 a day for baggl'l!:e,carsQndQll.hOQlles, :where an;!' such cars are ,gef;lnitely to you, and on the basi8 of the usual mileage on freIght cars arid passenger cars w'ben not regularly asIligDed to that these lreports are to be made to the receivers of'this road onthellnal.adjudicat!on of the which Is tobe bronght WIthout delsy the courts by the partIes representlOg the bondholders of tne O'J'D. & at: ll'road; it is decided that tbeyare not entitled 'to any, or .quly a port-iou., 01 too which you have used. then you are to Bettie tor any excess of such equivJIient as you may used, on the basis of the reports iibove as agreed Qtt.: . ; ,,: I , Yours, truly, ' JAMES "F. How, Gen. Agt. To Theodqre Sheldon, Att'lI U. 8. Tru8t 00. ',' ' ," y" B. &St.!-. , ," ' . ,Po B., I,t, Is above agreement refers, as the quantity of equipment; only 'ill the'average amount used ou,the road for the 'past three months. lfmore than th4ltis;usQ(i, same Is to be paid for promptly at the end of each month, at the rates stated a b o v e . , '
,.,1. , · .'"
CENTRAL TRUST CO.' OF ,NEw. !YORJt VI, WABASH, ST. L. & P. RY. CO.
eral managers of the Omaha and Wabash Companies, were undoubtedly composed with a full knowledge of the ,existence of the rule or usage in question, and they should be interpreted-particularly the letter of March 1, 1886-in the light of that It admits of no doubt, I think, that when the letter was written, and the proposition it contained was accepted, it was the mutual understanding of both parties that tho !eceiver of ,th(l Omaha CortJpany should 'keep the cars and engines assigned to him in an ordinary state of repair at the expense of his trust, and that the receivers of the Wabash Company should do likewise with the equipment claimed by the,Omaha Company which the Wabash receivers were to retain until the settlement of pending litigation. In short, the court holds that, considering the nature of the thing hired. and the usages which prevail among railroads, no obligation rests upon the Omaha Company to pay the bills fOf repairs which figure as an offset ill this case, even though all of the expenditures were incurred in repairing the effects Of ordinary wear and t£'nr. It is suggested by the Wabash Company that the rental charged for equipment is excessive. considering the fact that the loan of tne equipment in question was not a temporary loan, or an ordinary interchange of rolling stock, such as usually occurs among railroads; The answer is that the prices charged and allowed by the master, are such as the receivers of the Wabash Company themselves proposed in March, 1886, and general managers approved on May 29, 1889. Finally, the application made by the Wabash Company to amend its answer and to interpose a new and additional set-off to intervener's claim. which was not presented to the master, must be denied, both for the reason that the application is made too late, and because the proposed set-off forms the subject-matter of a cross bill which was filed in 1886 against the intervener's predecessor in interest ill the United States circuit court for the southern district of Iowa. The cross bill appears to be still pending and undetermined, and the merits of the claim can as well be adjudicated in the court where it was first filed. The result is that the intervener's exceptions Nos. 1 to 7 (both inclusive) will be sustained. Its eighth and ninth exceptions are overruled. Defendant's exceptions are also overruled. The order of allowance recommended by the master will be entered, but the amount of the allowance will be 683,613.43, with interest, instead of $43,006.06, as recommended.
(Oi1'cuCt Court Q/ .Appea,Z" B'£r.t J No. 20.
The question whether a decree i. final and appealable is not determined by tbe DaJIl.ewhich ,the court ,below gives it, but is to be decided by the appellate court. on a consideration of the of what is done by the decrlle· ..IOnappeal from atl.nal decree the oircuitcourt of appeals has authority to go bemere reversal, and enter such a deoree as should have been rendered by the couf't below on the whole oose, as shown by the record; and it is its duty to review ,all'iI!terlocutory proceedings, of eVery character, to whioh seasonable objection .' 4!'-s, been made. and insisted upon. ,
ApPEALABLE ORDER"':"'INSPBCTION OJ' PRIVATE PAPJIlRS-FINAL DISPOSITION.
.. AP:tjAL--REVIEW-'-l\IODUICATION OJ' JUDGMENT-CIROUIT CoURT OJ' ApPEALS.
. WIr the.banking laws, brought a bill against the receiver of the bank to obtain pos-
. "A iJ.a;tion'al bank president. against whom an indictment Was pending for violat-
. session of a trunk alleged private papers. To this llroceeding the United district iattorn8y was made a party defendant on his own petition, for the purpose of claiming the llapers, in order that, they might be laid before the grand Jury. After hearing, a decree was made allllointing a special master to make a of tbe trunk, with directions to turn over to the complainant any papers belonging to him, and to the receiver such llallers as belonged to the bank. and were not material to the llrosecution against the president, and to reserve for further considerationsu'ch as conoerned bank transactions, and were material to the llrosecution.. Bela that, in so far as the decree directed pallers to be turned over to the president and the receiver, it was final and allpealable, since such liar lleI'smight thus llass entirely beyond control of the other llarty claiming them·
.. EQUITY-PARTIES-PRODUOTION OJ' PAPERS.
, , J;t was improper to make the, district attorney a party defendant for the purpose , of prOcuritIg the llallers to be,laid before the grand jury. The proper course was , for hiI\l ,to obtain a 8ubpama duce8 tecum from the court in which the investigar .ti9n was pending, and ,then to make summary application to the court which had impouhded the papers:
CoNSTItUTIONAL LAW-UNRIUSONABLB SEABOH-INSPECTION OJ' PRIVA'l'E PAPERS.
.UIlQerthe circumst/lneesithe order 1;ly the conrt for an examination of the papers 1:>Y a special master was in violation of the fundamental and constitutional -rights.of the litigants as to the method of trial. Itappea'ring that bef.ore the bill wa)l1:>rought, the :trunk had been opened by consent cit. 1ihepresident'of the bank and the receiver, and certain papers taken out third :persons, one of whom thereby obtained some knowledge of its contents, it was in the power of the conrt to ascertain by private examination the nature of the evidenee thns to be had, and, if it proved prima facie admis8ible,toai).owllublio testj:mony thereof to be given.
Circuit Court of the United States for the District or Masf:ach·usetts. Reversed. In Equity. Bill by Asa P. Potter, president of the Maverick Na· tional Bank of Boston, against Thomas P. Beal, receiver thereof. Complainant alleges, in substance, that he deposited in the vaults of the bank certain personal and private papers, books, and documents, which were never the property of the bank, and that some of the papers were then in a trunk, to which he held the key; that the trunk was in the vault when the bank was closed by order of the comptroller, and that the receiver has since held it, and refused to pass it to the plaintiff; that the papers are personal in their nature, and necessary to a settlement of hUt private affairs; that he is charged with violations of the law, and that the government attorney is about to issue a summons calling the receiver before the Ilrand jury with the papers in auestion: that he a