51 F. 15 | U.S. Circuit Court for the Northern District of Georgia | 1892
I am satisfied that the.question involved in this intervention is controlled by the case of Express Co. v. Railroad Co., 99 U. S. 191. In that case the contract was made between the express company and the railroad company, whereby the express company agreed to lend the railroad company $20,000, to be expended in repairing and equipping its road, and that the railroad company should grant to the express company the necessary privileges and facilities for the transaction of all its express business over the road; the sum found to be due the railroad company therefor upon monthly settlements of accounts to be applied to the payment of the loan and the interest thereon. The $20,000 was paid in compliance with the contract, and shortly thereafter the express company entered upon the road, transporting freight according to the terms of the contract, keeping regular accounts, and exhibiting them to the company, which were always approved; and it continued to act under said contract until a receiver, appointed in a bill to foreclose the mortgage, refused to continue the contract, and the express company was compelled to abandon the road, although its debt was unpaid. By consent of the court, the express company was allowed, to file its bill in circuit court of the United States for the western district of North .Carolina, where the foreclosure proceedings were pending. The bill prayed for a decree compelling the railroad company to specifically perform its contract, and to such other and further relief 'as the nature and circumstances of the ease might require. The prayer of petitioners-in this.intervention is the same in effect as the prayer of complainants in the case referred to. The supreme court, after disposing of other questions, uses the following language in the opinion:
“There iá'anóther objection to the appellant’s case, which is no less conclusive. • The road is in the hands of the receiver, appointed in a suit brought ■by the bondholders to foreclose their mortgage. The appellant has no lien. The contract neither expressly nor by implication touches that subject. It is not a license, as insisted by counsel. It is simply a contract for the transportation of persons and property over the road. A specific performance by the receiver would be a form of satisfaction or payment which he cannot be*17 required to make. As well might lie be decreed to satisfy the appellant’s demand by money, as by the service sought to be enforced. Both belong to the lienholders, and neither Can thus be diverted. The appellant can, therefore, have no locus standi in a court of equity.”
rt is clear that the view of the supreme court as just quoted must control the question presented by the intervention in this case. It is a peculiar condition of things, and unfortunate for the petitioners, and a hardship on them, undoubtedly: but to require the receiver to transport its marble to Marietta would fie equivalent to requiring the receiver to pay them in money the amount of the freight from Nelson to Marietta, and this the court certainly could not do, inasmuch as they have no lien. The petition of interveners sets forth the fact as above stated, and consequently the demurrer to the petition must be sustained, and it is so ordered.
