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ever, of the order of the court under which the receiver was appointed, made a part of this record, it will be seen that the powers of the receiver are those provided for in the mortgage, the property described therein being stated; that his authority is declared to be as follows: holding, managing, and operating the railroad and other mortgaged property; that the railroad company is directed to transfer to the receiver all property of every kind and description whatever "which are covered by said mortgage"; that he is authorized and directed to prosecute and defend any pending suits by or against said railway company "affecting said mortgaged property," and to bring such suits as may be necessary in the discharge of his duties as receiver for securing and protecting "said mortgaged property." His powers are limited to the mortgaged property. There is nothing in the record from which it is made to appear that the moneys claimed in the suit by the plaintiff from the defendant constituted any part of the mortgaged property.

Under these circumstances the receiver could not himself have brought suit on the claim, nor have included it in the assets in his hands as receiver. He could not have been permitted to intervene in the suit as first brought before the defendant's set-off was filed, not being a party in interest; and for the same reason the claim remained the property of the corporation, suable by the corporation itself, and subject to all proper defenses and sets-off against the corporation. In Smith v. McCullough, 104 U. S. 25, this state of facts existed: A railroad mortgage was foreclosed in proceedings in which a receiver had been appointed. There were certain county bonds, the property of the railroad company, in the hands of one McCullough. Pending the receivership, sundry creditors of the railroad company attached these bonds in the hands of McCullough for claims against the company. And a contest arose between them and the receiver as to the ownership of the bonds, and their right to recover on them. The court construed the mortgage, and held that these bonds did not pass under it; that they therefore never passed to the receiver, but remained the property of the company, subject to its debts, and recoverable in suits against it to which the receiver was not a party. But, the court having refused to permit the receiver to intervene as a party plaintiff in the suit, was it proper afterwards to permit the defendant to set off against the claim of the plaintiff coupons upon the mortgage bonds maturing after the receiver was appointed? These coupons affected the mortgaged property, and were part and parcel thereof. They were cut off the bonds secured by the mortgage. The duties of the receiver involved provision for their payment, and examination into their validity. The whole scope and purpose of the receivership were designed to secure as much as possible for all holders of the bonds and coupons equally. It was the province of the receiver to defend all suits affecting the mortgaged property. As a set-off is in the nature of a cross action, the setting up these coupons as sets-off was practically the bringing of an action upon them. To such an action the receiver, under the terms of the order appointing him, had the right to be a party. As the receiver had no right to


be made a party to the suit on the cause of action set up because he had no interest therein, the defendant could not set off against this cause of action coupons in which he did have an interest. The claim set out in the declaration, and the coupons maturing after the receiver was appointed, were not in the nature of mutual credits or mutual debts. In permitting these coupons to be used as setsoff, the court below erred. Its judgment is reversed, and the cause is remanded to the circuit court with instructions to grant a new trial.


(Circuit Court of Appeals, Eighth Circuit. May 6, 1895.)

No. 526.


Where a bond is given, conditioned that one who has proposed to furnish the government three separate kinds of supplies shall not withdraw his proposal, and shall execute a contract if it is accepted, it is no breach of the condition that such person fails to execute a contract to furnish only one of such kinds of supplies, his proposal for which alone is accepted.

In Error to the District Court of the United States for the District of South Dakota.

This was an action by the United States against James McAleer, John Manning, and Robert W. Cooper upon a bond. The district court sustained a demurrer to the complaint. Plaintiff brings error. Affirmed.

E. W. Miller, U. S. Atty., for the United States.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge. This writ of error was sued out by the United States to reverse a judgment which sustained a demurrer to a complaint upon a bond made by James McAleer, principal, and two sureties, the defendants in error. The complaint alleged: That the defendant in error McAleer proposed to furnish to the United States, at Ft. Meade, in Dakota territory, 750,000 pounds of corn, at $2.55 per 100 pounds; 1,500,000 pounds of oats at $2.60 per 100 pounds; and 1,800 tons of hay, at $10 a ton. That under the statutes of the United States and the rules and regulations of the war department, it was understood and agreed between the defendant McAleer and the United States that the latter had the right to accept or reject the whole or any part of his proposal, and that his sureties upon this bond knew this fact. That thereupon the defendants made and delivered to the United States a bond in the sum of $15,024, which recited that McAleer had proposed and agreed to enter into the contract with the assistant quartermaster of the United States to furnish 750,000 pounds of corn, 1,500,000 pounds of oats, and 1,800 tons of hay, and contained this condition:

"Now, therefore, if the said James McAleer shall not withdraw his said proposal within sixty days from the date of opening the proposals, and shall,

within sixty days from the date on which he may be notified that his said proposal has been accepted and the said contract awarded to him (provided the said award be made within the sixty days above mentioned), duly and formally enter into such contract, agreeably to the terms of said proposal, and into such bond for its due performance as shall be required of him, or if his proposal shall not be accepted and such contract not be awarded to him, then this obligation shall be void; otherwise, that is to say, if either he shall withdraw his proposal within sixty days, or fail to enter within said sixty days into said contract if awarded him, and into such bond, to remain in full force, effect, and virtue."

-That the United States, in due time, notified McAleer that they would accept the 1,800 tons of hay, at $10 per ton, and he refused to enter into a contract to furnish it, and never has furnished it, to the damage of the United States in the sum of $2,831.20. The defendant interposed a general demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

The chief contention of counsel for the government is that the obligors in this bond are liable for the alleged breach of its condition, because it is alleged in the complaint, and under the demurrer is admitted, that they knew and agreed that the government might reject the whole or any part of the proposal. But the difficulty with this case is that neither McAleer nor his sureties ever agreed that he would contract to furnish or that he would furnish anything if the government rejected the whole or any part of his proposal. It was only in case the government accepted the proposal as it was made that they agreed to be bound at all. Their contract was that, within 60 days after McAleer should be notified that his proposal was accepted, he would enter into a contract according to the terms of his proposal, but that, if his proposal should not be accepted, then their obligation should be void. The government might have required, and these defendants in error might have made, a bond conditioned that, if any part of McAleer's proposal was accepted, he should enter into a contract to fulfill and should fulfill that part. It is sufficient for the determination of this case that the defendants did not make such a bond, and it is not the province of the courts to make it for them. This complaint admits that the proposal of McAleer was never accepted. The fact that a third or some like portion of it was accepted, and two-thirds of it was rejected, constituted no acceptance of it. It was no more a breach of the conditions of this bond for McAleer to fail to enter into a contract to furnish the hay, after his bids for the corn and the oats were rejected, than it would have been to fail so to do after all his bids had been rejected. The acceptance of a part and the rejection of another part of a proposal is no more an acceptance of it than the rejection of the whole.

The judgment below is affirmed, without costs to either party in this court.


(Circuit Court of Appeals, Eighth Circuit. May 6, 1895.)

No. 519.


In an action against the K. Ry. Co. for causing the death of one C., it appeared that the tracks of the K. Co., running north and south, crossed at grade the tracks of the S. Co., running east and west, a stop board being placed on each line 400 feet from the crossing, and the rule of the road giving the right of way to the train which first arrived at its stop board. There was no obstruction to the view between the tracks. A freight train, of which C. was engineer, consisting of 28 cars, approached the crossing from the east, on the S. road, in the night, stopped at the stop board, and, no train on the K. road being in sight, whistled twice, and started for the crossing. After starting, the fireman notified C. that a train was approaching on the K. road, from the south, whereupon C. stopped his train, about 200 feet from the crossing, until the K. train was seen to stop at its stop board, when C. again whistled twice, and started for the crossing, and the fireman, having reported the stopping of the K. train, turned to shovel coal into the fire box. Just as C.'s engine reached the crossing, it was struck by the K. train, and C. was killed. The headlight of the S. train was burning at the time, and was seen by a brakeman and a passenger on the K. train. Held, that it was not error to refuse to direct a verdict in favor of the K. Co., either on the ground that no negligence of the K. Co. was shown, or that C. was shown to be guilty of contributory negligence.


Held, further, that it was no defense for the K. Co. that the fireman on the S. train, C.'s fellow servant, was guilty of contributory negligence. 8. SAME-ORDINARY CARE.

Held, further, that since the engineer of the K. train had no right to proIceed if he could have discovered the other train by the use of ordinary care, it was not error to refuse to instruct the jury that if they believed the headlight of the S. train was not lighted, and the engineer of the K. train thereby warned of its approach, he had a right to proceed. 4. SAME-PROXIMATE CAUSE.

Held, further, that it was not error to refuse to instruct the jury that a failure to light the headlight of the S. train would bar a recovery by C., since it did not appear that the absence of such light contributed to cause the accident.


Held, further, that it was not error to permit a civil engineer, who had made a survey of the locality, to testify that, if the headlight on the S. train was lighted, it would be visible at any point within 400 feet of the crossing, from any point on the K. tracks between the stop board and the crossing.

In Error to the Circuit Court of the United States for the District of Minnesota.

This was an action by Catharine Chambers, as administratrix of Patrick Chambers, deceased, against the Chicago, St. Paul & Kansas City Railway Company, to recover damages for the death of the intestate. Judgment was rendered in the circuit court for the plaintiff. Defendant brings error. Affirmed.

Dan W. Lawler and Lafayette French, for plaintiff in error.
Nathan Kingsley and H. H. Field, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN, Circuit Judge. About 4 o'clock on a dark morning in October, 1891, at Taopi, Minn., a passenger train of the plaintiff in error, the Chicago, St. Paul & Kansas City Railway Company, hereafter called the "Kansas City Company," collided with a freight train of the Chicago, Milwaukee & St. Paul Railway Company, hereafter called the "St. Paul Company," at the intersection of the railroads of these corporations at that place, and Patrick Chambers, the engineer of the freight train, was killed. Catharine Chambers, his widow, the defendant in error, brought an action, as administratrix of her husband's estate, against the Kansas City Company for negligence which she alleged caused the death of her husband, and recovered a judgment of $5,000. The writ of error in this case was sued out to reverse this judgment.

The alleged errors upon which counsel for plaintiff in error seem to rely most confidently are that the court refused to grant their request to instruct the jury to return a verdict for the Kansas City Company at the close of the plaintiff's evidence, and again at the close of all the evidence. This request was based on the grounds that the evidence disclosed no negligence on the part of the Kansas City Company, and that it conclusively appeared from the evidence that Chambers was guilty of negligence that contributed to cause his death. If there was any error in the refusal to grant this request at the close of the plaintiff's evidence, the company waived it by subsequently introducing evidence on its behalf, and proceeding with the trial of the case on its merits. Insurance Co. v. Frederick, 7 C. C. A. 122, 125, 126, 58 Fed. 144, and cases cited. We turn to the consideration of the refusal to grant this request at the close of all the evidence. There was testimony in the case at that time tending to show these facts: The railroad of the St. Paul Company runs nearly east and west at Taopi, and the railroad of the Kansas City Company runs nearly north and south through that place, and crosses the road of the St. Paul Company at grade. There was a stop board on the road of the St. Paul Company about 400 feet east of the crossing, and one on the Kansas City road about the same distance south of the crossing. There were no obstructions to the vision in the space between these railroads for a distance of more than 400 feet southeasterly of their place of intersection. The train approaching the crossing which first arrived at its stop board had the right of way over the crossing. The freight train of the St. Paul road was running west, and consisted of 28 freight cars and a caboose. When it arrived at Taopi the engine stopped nearly opposite the stop board on that road for about 50 seconds. Chambers, the engineer, was on the north side of his engine, and his fireman was on the south side of it. After the stop Chambers gave two short blasts of the whistle, and started for the crossing. Up to this time there does not seem to have been any appearance of a train approaching upon the Kansas City road. Just after he made this start for the crossing, his fireman told him that there was a train coming from the south on that road. He asked if it was going to stop, and the fireman replied that it was coming pretty fast, and he could not tell. Cham

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