109 F. 230 | 6th Cir. | 1901
These two cases have been heard together, • and involve the same question. The appeal of Monsarrat, as
•' It is next said that Mr. Felton, the predecessor of the appellee in the receivership, shortly after his appointment agreed that, if appellant would exercise care 'in rejecting mileage books presented by other than the original owners, he would honor whatever mileage he took up. This statement had manifestly no reference to the account for coupons taken up before he became receiver. Its utmost effect was to promise payment for coupons thereafter taken up. This limits its application to about $1,400 of the account here involved. As this mileage was sold by the railroad company while acting as the agent of the appellant, so far as the mileage books were receivable over the railroad operated by Monsarrat, the railroad company came under obligation to account to appellant whenever such mileage was used on his railroad. The obligation of appellant to receive such mileage books when presented for fares was a fixed contractual obligation towards every holder of mileage books, and was in no wise affected by the subsequent appointment of Felton as receiver; and the remedy of appellants for mileage so use'd on his railroad was against his agent, the railroad company, which sold the ticket. Cowen v. Winters, 37 C. C. A. 628, 96 Fed. 929. The undertaking by the receiver to assume this obligation of the railroad company to the appellant-for such outstanding mileage cannot operate to convert this claim into a debt of the receivership. The receiver had no such authority, either under the order made when he was appointed or under his general authority as receiver. In cause No. 872 the appellant sought to set off a liability to Robinson, receiver, by the claim preferred independently under the intervention from which cause No. 853 is an appeal. In both cases the court held that the claim was a liability of the railroad company, and not a liability of the receivership. That the claim is one of the class entitled to a preference in the income, we have no doubt. Appellant, in No. 853, has assigned it as error that the petition was dismissed, when it should have been entertained so far as to permit the claim to share in any distribution of income arising under the receivership. To this extent, and for this purpose only, the decree may be modified so as to allow the claim to be established as a preferential debt, with leave to share in any fund which shall arise from surplus earnings of the receivership. The decree in No. 872, denying this claim as a set-off, is affirmed, with costs. Costs in No. 853 will also be paid by appellant, as receiver.