No. 2746 | 6th Cir. | May 10, 1916
The addition to the record of the memorandum opinion of the District Judge and the order made pursuant thereto, allowing fees to the receiver and to his counsel, and the further addition of the record of the action of the District Court relative to the receiver’s bond and the waiver of a supersedeas bond, in no wise change the situation or affect the question of his personal and official liability.
The petition for rehearing is based primarily upon the claim that this court, in its opinion heretofore rendered, has neither stated nor adopted a correct legal theory uiiou which to fasten liability upon the receiver, or to determine the character and to measure the extent of such liability.
'Phis claim is without foundation. So far as the opinion implies an official.duty, as distinguished from mere personal liability, on the part of Haines to pay the debts owing to his merchandise creditors, that result does not necessarily rest upon any theory of contract or warranty that he was authorized to make the purchases, and so lead to an inquiry as to the amount the vendors of merchandise could have collected if the purchases had been authorized. It may rest as well upon the theory of deceit, because of the false, though implied, representation of authority; and in an action of deceit the measure of damages is the value of the property with which the deceived vendor has parted, less what he has received. In view of the limited authority under which the receiver was acting, it does not cure the effect of this false representation to say that he did not intend to use the merchandise for himself, but only for his trust.
The petition for rehearing will be denied.