An order of the federal court, directing its receiver of a railroad to restore to the railroad its property in his hands on the agreement that the railroad assume all liabilities and obligations of the receiver and save him harmless against the payment of any liabilities incurred by him, is not a "written instrument," within Burns' Ann. St. 1908, § 368, requiring the orig-7. RAILROADS (§ 265*)-RECEIver-Redelivinal or a copy to be filed with the complaint in an action founded on a written instrument. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 935-941; Dec. Dig. § 308.* For other definitions, see Words and Phrases, vol. 8, pp. 7545-7547.]

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

1Rehearing denied. Petition to transfer to Supreme Court denied.

The term "obligation" may be used to desig-| cause, were likely to arise. They were necnate the contract itself, which confers rights essarily incidental to the business in which and imposes duties upon the parties thereto, he was engaged. Bartlett v. Cicero, etc., 177 or it may mean duties arising out of a con- | Ill. 68, 52 N. E. 339, 42 L. R. A. 715, 69 Am. tract or from actionable tortious conduct. St. Rep. 206; Dow v. Memphis Railroad Com6 Words & Phrases, 4878, and cases cited. pany (C. C.) 20 Fed. 260.

In the sense in which it was used in this The court, by the order in question, was case, it evidently was not intended to desig-taking all of the property, including whatever nate the contract itself, but the duties that betterment it had received while in his charge, were imposed on the receiver. The word out of his hands and turning it over to the

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company. The receiver could not be held personally liable for demands of this character arising against him in.his trust capacity, and these were liabilities that, without some provision made for their payment, could not, as a matter of law, be enforced against the company taking the property back. It did not inherit the debts and liabilities of the receiver. Ohio & Mississippi Railroad Co. v. Davis, 23 Ind. 553, 85 Am. Dec. 477; Bell v. Indianapolis, etc., Ry. Co., 53 Ind. 57; Indianapolis, etc., Ry. Co. v. Maurer, 160 Ind. 30, 66 N. E. 156. It cannot be inferred that the court, by its order, turning over the property in the receiver's hands to the Terre Haute & Indianapolis Railroad Company, intended thereby to cut off and discharge liabilities against the receiver of the character here involved. It is to be presumed that such liabilities were as much intended to be provided for, as though the liabilities had grown out of and been incurred by contracts entered into by the receiver in connection with the busi

"liability" expresses in the most comprehensive manner any form of legal obligation, certainly all such as are measured by money valuation. Pittsburgh Melting Co. v. Reese, 118 Pa. 362, 12 Atl. 362. Liability may arise from contracts, express or implied, from duty imposed by law or judgment of the court, or in consequence of a tort committed. Am. & Eng. Enc. of Law (2d Ed.) 486, and authorities cited. It is elementary that, if one is guilty of negligence proximately causing injury to the person or property of another, he will have incurred a liability to the party injured, and the fact that the liability is not admitted, and that the damages are not ascertained, do not affect the question of the existence of the liability, and that the claims arising out of the liability are not assignable or subject to the process of garnishment is not a test of the existence of the liability. If the facts out of which the liability grows exist, the liability exists, even though it be denied by the party upon whom it rests. Is there anything in the nature of the ex-ness of the receivership. As before stated, press agreement averred in the complaint that will justify the conclusion that the terms "lawful liabilities and obligations of said receiver," as therein used, were meant and intended by the parties in any different sense from that in which those terms are generally employed? Can the meaning of these terms, as they are alleged in the complaint to have been employed, be restricted to contractual liabilities and obligations, or obligations and liabilities that have been liquidated? Appellant contends that they should be so restricted.

they were liabilities that were as clearly incidental to the operation of the road by the receiver as were any other claims or liabilities he might or could have incurred, and were clearly within both the letter and spirit of the agreement set up in the complaint. Gray v. Grand Trunk Ry. Co., 156 Fed. 736, 84 C. C. A. 392; Thompson v. Northern Pacific Ry. Co., 93 Fed. 384, 35 C. C. A. 357; Wabash v. Stewart, 41 Ill. App. 640. It being once determined that the order of the court imposed upon the Terre Haute & Indianapolis Railroad Company the duty of paying the appellee's In the determination of this question, we demand, it follows that such liability and obmust consider as an established fact that, ligation was a liability and obligation that upon the date fixed in the order of the court, followed the Terre Haute & Indianapolis RailOctober 31, 1904, the receiver was lawfully road Company, and its property into, and beliable to the appellee for the amount subse- came the obligation of, the appellant compaquently determined by the verdict in this | ny, precisely as it had been the obligation case for an act of negligence committed by of the Terre Haute & Indianapolis Railroad him while acting in his capacity as receiver, Company. In this respect the appellant stands and that, although the sum due as damages in the shoes of the Terre Haute & Indianwas subsequently ascertained, yet, in contem-apolis Railroad Company. plation of the law, it was justly due and owing, and should have been paid by the receiver when the injuries were received. From the very nature of the business in which the receiver was engaged, liabilities to passengers for injuries received through the negligence of his servants, while they were being transported over the road he was operating, was likely to occur. Valid obligations against the receiver for damages to goods and stock shipped over the road, produced by the same

Appellant cites, in support of its contention that the appellee's complaint is bad, for the reason urged against it, the case of Tobin v. Vermont, etc., 185 Mass. 337, 70 N. E. 431. In that case the plaintiff received a personal injury through the negligence of the servants of a receiver, who, under the order of the court appointing him, was operating a railroad, for which injury the receiver was liable in damages to the plaintiff. The receiver under a proper decree of the court sold the

artificial person, instead of a court, applies to support the contract in favor of the beneficiary named therein. The cases of Gray v. Grand Trunk Railway Company, supra, Thompson v. Northern Pacific Railway Company, supra, and Wabash v. Stewart, supra, are directly in point in support of both prop

The complaint is not open to the objections urged against it.

road to the defendant. The decree of sale provided that the purchaser should take the title to the property subject to the lien of all debts and other obligations and liabilities of the receiver arising out of the operation of the road by the receiver, and subject to the right of the court to compel payment of the purchase price. The receiver had been dis-ositions. charged without having recognized or settled plaintiff's claim. The court say, in deciding the case: "That it is doubtful whether It is insisted that the evidence is insuffithe action sounds in tort or contract, and that cient to sustain the verdict of the jury for the complaint is bad, as sounding in tort, be- two reasons: First, because it fails to folcause the negligence charged was not the neg-low the averments of the complaint, in that ligence of the defendant, but that of the re- the complaint avers that the injury complainceiver, for whose torts the defendant was not ed of resulted from the negligence of "the liable; that the plaintiff, being compelled to engineer and agents of said company, in rely upon a contractual right, could not main-charge of said locomotive and train," while tain the action, because he was a stranger to the proof was that the engineer, whose neglithe contract."

gent fault caused the appellee's injury comIn Massachusetts the common-law proce- plained of, was the servant of the receiver, dure still prevails, and an action at law can- and not of the company; and, second, that not be maintained by a stranger to a contract, the order of the court, introduced in evidence though the same was made by the parties to sustain appellee's charge that the Terre thereto for his special benefit. Mellen v. Haute & Indianapolis Railroad Company exWhipple, 1 Gray, 317; Exchange Bank v. pressly agreed to assume and pay all obligaRice, 107 Mass. 37, 9 Am. Rep. 1; Borden v. tions sued on, affirmatively shows that apBoardman, 157 Mass. 410, 32 N. E. 469; Clare pellee's demand is not within the purview of v. Hatch, 180 Mass. 194, 62 N. E. 250. While, the agreement and order of court relied upon. in this state, all distinction between actions Regarding the first point made, there can at law and suits in equity have been abol-be no question but that appellant is right in ished, and under our Code it is well settled, contrary to the rule in Massachusetts, that all actions must be prosecuted in the name of the real party in interest, and that one for whose benefit a contract has been made, by third parties, may sue the obligor on the contract in his own name. Day v. Patterson, 18 Ind. 114; Devol v. McIntosh, 23 Ind. 529; Dunlap v. McNeil, 35 Ind. 316; Miller v. Billingsly, 41 Ind. 489; Campbell v. Patterson, 58 Ind. 66; Stanton v. Kendrick, 135 Ind. 382, 35 N. E. 19.

the proposition that a plaintiff must recover according to the allegations of his complaint. or not at all. He will not be permitted to allege one case in his complaint and prove another by his evidence; but this was not undertaken to be done here.

whose place and stead the appellant stands to pay the damages resulting from the receiver's negligence complained of, and, if the complaint was not good on this theory. it was not good at all, for, notwithstanding the averment that the injury resulted from the negligence of "the engineer, etc., of said company," the other specific averments of the complaint show clearly that the engineer in question was not the servant either of the Terre Haute & Indianapolis Railroad Company or of the appellant, and that he was the servant of the receiver.

The theory of the appellee's case was that his injury was caused by the negligence of the receiver, and that the appellant's liability therefor arose out of its acceptance of the property from the hands of the receiver, under the proceedings and order of the court The only distinction that can be made be-imposing the liability upon the party in tween the case at bar, and many of those cited from this state, lies in the fact that the liabilities which the Terre Haute & Indianapolis Railroad Company contracted to pay arose out of a tort, and was unliquidated, and that the promise of the company was not made to another person, but grew out of the proceedings of court, the company's petition, and the court's order, and these distinctions do not affect the principle involved in the decision of the question. It is certainly entirely competent for parties to create a contractual liability against themselves for the payment of damages, liquidated or not, arising out of either their own or other people's torts, and the obligations upon the Terre Haute & Indianapolis Railroad Company to pay the appellee's claim was no less binding and effective as against the company, because its agreement was made in a judicial proceeding, and evidenced by its petition to the court. It was an agreement founded upon a valuable consideration, and every reason that would ap

It is shown by the averments of the complaint that, at the time the injury occurred, the Terre Haute & Indianapolis Railroad was being operated by the receiver, and that on that day the appellee boarded "the defendant's cars, operated as aforesaid," and that it was while riding as a passenger on these cars so operated that he received his injury. The words "defendant's cars," taken in connection with the other averments

understood by all parties to mean, the cars | lis Railroad Company, shall be discharged as of the Terre Haute & Indianapolis Railroad an operating receiver, but shall be continuCompany, operated by the receiver. It ap-ed as a receiver, for the purpose of prosecutpearing that the cars were being operated by ing and defending, as he may be advised, any the receiver, the engineer and agents in and all actions brought by or against him, charge of the same were necessarily the and which may be pending in any court at agents, not of the company, but of the re- the time such surrender and delivery is ceiver, and, although the complaint bears evi- made, and for the purpose of settling his acdence of gross and inexcusable carelessness counts as such receiver." The seventh parin its preparation, there was no room to mis-agraph was as follows: "For the purpose of understand the theory upon which appellee enforcing compliance with the terms of this claimed his right to recover. No objection | order, and for the adjustment and determinawas apparently taken to the complaint in the court below on account of its failing to show a liability against the receiver, and this objection is not urged here against the sufficiency of the complaint. If appellant's position on this point is well taken, then its demurrer to the complaint should have been sustained, because, as before remarked, the complaint is not sufficient to make a case on the theory that it was the defendant's negligence which caused the injury complained of. Had such objection been pointed out in the court below, the confused and conflicting averments of the complaint could and would have been readily cured by amendment, and the objection obviated.

tion of all claims and rights of action by or against said receiver, the court retains jurisdiction of this cause and of the property delivered and transferred by the receiver, as hereinbefore provided."

It is the contention of appellant that, when all of these clauses of the court's order in the matter under consideration are construed together, it becomes apparent that the liabilities and obligations which the Terre Haute & Indianapolis Railroad Company was required to assume and pay, referred to in the third paragraph of the order, did not include liabilities of the character here sued on; that the federal court still retains jurisdiction of the receivership and jurisdiction to determine all claims against the receiver of this character; that the receiver was not discharged; that his official life was prolonged for the particular purpose, among other things, of adjusting claims of this character; and that, until such claims have been so set

stitute no liability against the Terre Haute & Indianapolis Railroad Company, or the appellant company.

If there was no liability existing in appellee's favor against the receiver on the 31st day of October, 1904, none could be brought into being by any subsequent act of the court, the receiver, or the appellee. Had the appellee sued the receiver in the federal court, where the receivership was pending, for the damages recovered in this action, he could only recover because the receiver became liable to him at the time the injury was received, June 13, 1904.

Both parties to the cause submitted the same to trial upon the only theory upon which it can be sustained. They each took their chances to win or lose. The verdict and judgment are clearly a bar to any other action for the same cause. Such being the case, this court will go to the limit of liber-tled and adjusted in said court, they can conality in construing the complaint, in order to sustain it upon the theory the parties have given it, and upon which it has been tried. The record of the federal court, introduced in evidence, was that the property of the Terre Haute & Indianapolis Railroad Company was in the hands of a receiver appointed by the United States Circuit Court for the District of Indiana, in a certain action pending therein, and that such receiver had been operating said road, under the order of the court; that said Terre Haute & Indianapolis Railroad Company filed its petition in said court, in said proceedings, setting forth its solvency and ability to pay its liabil- Undoubtedly clause 7 of the order of the ities, and offering to pay all the liabilities court retains jurisdiction in the court over and obligations incurred by the receiver in the receivership and the property of the road the operation of the property of the com- precisely the same as though the order in pany, and prayed that the possession of all of question had not been made, and for the exits property and assets in the hands of the press purpose of settling claims of the charreceiver, including those acquired by him, be acter here sued upon, against the receiver. turned over to it. The third paragraph of But there is nothing in this clause of the the order of the court made in the premises order that in any manner tends to show directed the receiver to turn over said prop- that the court did not intend that the Terre erty to the said company, and further order- Haute & Indianapolis Railroad Company ed said company to, among other things, as- should pay every dollar of such claims, just sume and pay all lawful liabilities and oblias the company proposed, in its petition askgations of said receiver, existing at the close ing for possession of the property, to do, and of business October 31, 1904. The sixth as it was required to do by the third paraclause of the order was as follows: "The graph of the order of the court. The court. receiver herein, upon the surrender and de- by this paragraph 7 of the order, gave to livery of the property, as hereinbefore pro- those who had such claims a means of previded, to the said Terre Haute & Indianapo-senting and adjusting their claims; it retain91 N.E.-12