Syllabus.

the company; that his admissions were not the admissions of the company, and that what he said was mere hearsay, and tended to prejudice the jury against the company. There is no force in this objection. By the terms of the contract the amount due the plaintiffs was to be determined by the weighbills. They were in the possession of the bookkeeper, an officer of the company, and one of the plaintiffs applied to that officer for those bills. The reply of such officer, in possession of that made by the contract the evidence of the amount due the plaintiffs, was competent testimony. If there were any doubt as to its competency, the objection to it would be obviated by the fact that the next day the superintendent practically assented to the truth of the statement, and if the plaintiffs did not produce the weigh-bills, they certainly had a right to show why they were unable to do so, the efforts they had made to obtain them, and how it was that they failed.

These are all the questions that we deem it important to consider. We have examined the record very carefully, and find nothing in the rulings of the court of which the defendant can justly complain; and while, in view of the conflicting testimony, there is room for difference of opinion as to what the facts really were, there was testimony which, in amount and character, was sufficient to uphold the verdict of the jury, and, of course, under those circumstances, its determination is conclusive upon those questions of fact. The judgment will be

Affirmed.

CHICAGO DEPOSIT VAULT COMPANY v.

McNULTA.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 345. Submitted April 24, 1894. Decided May 14, 1894.

A receiver of a railroad, appointed with authority "to make all contracts that may be necessary in carrying on the business of said railroad, sub

Statement of the Case.

ject to the supervision of this court,” has no authority to make a lease for a term of general offices, without authority from the court, and to bind his successors and the property therefor for the term, without direction from or sanction by the court.

The facts that the receiver's accounts showed, monthly, the payment of the rent under such a lease, and that that rent was reasonable, and that the accounts as rendered were passed by the master and reported to and approved by the court, do not amount to a sanction of the lease for the term.

CHARLES H. BEERS, as the holder of certain bonds of the Wabash, St. Louis and Pacific Railroad Company, secured by a mortgage or trust deed on the Chicago division of that road, in 1886 filed a bill on behalf of himself and others in the Circuit Court of the United States for the Northern District of Illinois for the purpose of foreclosing the mortgage, and prayed that pending the rendition of the decree in the cause the court would appoint some disinterested and practical person receiver of all the mortgaged property, equipment, and appurtenances to hold and administer the same, and disburse the revenues and income thereof under the orders of the court from time to time to be entered in the cause.

On December 16, 1886, the court appointed Thomas M. Cooley receiver of the mortgaged property. The order appointing the receiver contained among other things the following: "And the said receiver is hereby empowered and instructed to take possession of all of the said property described in said mortgage or appurtenant thereto, and to manage, control, and operate the said railroad described in said mortgage, preserve and protect all said property, and collect, as far as possible, all assets, choses in action, and credits due to said company, acting in all things under the orders of this court. . Said receiver shall also have authority, subject to the supervision of the court, to make such repairs to said railway and property as are necessary in his judgment for carrying on the business thereof, and also to make all contracts that may be necessary in carrying on the business of said railroad, subject to the supervision of this It is further ordered that the said receiver out of the income which shall come into his hands by t

court.

Statement of the Case.

operation of said railroads or otherwise, proceed to make payments as follows: That he pay all current expenses incident to the creation or administration of his trust and to the operating of said railroad; That he pay all amounts. now legally due or that shall hereafter become due for taxes on any of the property over which he is appointed receiver; That he pay all balances due or to become due to other railroads or transportation companies on balances growing out of the exchange of traffic with such railway accruing six months prior hereto; .. That he pay all rentals to become due upon rolling stock heretofore sold to said railroad company and partially paid for and necessary for use in the operation of the road over which the said receiver is appointed, covered by the mortgage described in the bill herein, and which come into the hands of the receiver under the operation of this order."

The order further directed that after discharging and making all the payments and outlays required by the terms of the order the receiver should retain any surplus remaining in his hands to be applied to the payment of the past due and matured interest coupons secured by the mortgage.

The receiver qualified and took possession of the mortgaged property, and on December 31, 1886, entered into a contract with the Chicago Deposit Vault Company for the lease of rooms 523 to 547 inclusive in the Rialto Building in the city of Chicago, for his use as receiver in the transaction of the business of the railroad. The term of the lease was from January 1, 1887, to April 30, 1891, a period of four years and four months, at a yearly rental of $10,500, payable in instalments of $875 monthly in advance. There was a provision in the lease that the receiver might cancel it on May 1, 1888, by giv ing notice to that effect on or before February 1, 1888.

Cooley, as receiver, took possession of the rooms and continued to occupy them until his resignation in April, 1887, paying the stipulated rent regularly during that time, for which he took credit in his reports of receipts and disbursements. The monthly items of rent were entered in the

Statement of the Case.

receiver's reports under the heading of "operating expenses as "rent of general offices." These reports were regularly approved by the court.

Upon Cooley's resignation the court appointed John McNulta as his successor, who took possession of the rented premises and continued to occupy them and pay the stipulated monthly rental until July 31, 1889. Receiver McNulta made his reports of receipts and disbursements in the same form as those made by his predecessor, and they were from time to time approved by the court.

The mortgaged property was sold under foreclosure decree and purchased by James F. Joy, Ossian D. Ashley, Thomas H. Hubbard, and Edgar T. Welles as a purchasing committee. The sale and purchase having been confirmed, the court on June 20, 1889, entered an order directing receiver McNulta on or before July 1, 1889, to turn over all the property in his possession as receiver to the purchasing committee. This order contained the following provision: "But this order is made, and the surrender and delivery of possession by the receiver shall also be made, subject also to the power and right of this court to consider and determine all questions which have heretofore arisen or shall hereafter arise herein concerning expenses of this cause or of the receivership herein, concerning claims against said receiver or against any of the property now in his possession as receiver, and concerning allowances to counsel or to parties, and to charge upon or against said property any amounts at any time deemed by this court proper to be charged upon it, and this court hereby reserves full power and right to consider and determine all such questions, to make any charges which it deems proper against said property now in the possession of said receiver, notwithstanding the surrender thereof, and to resume possession of all or any of said property, if necessary, at any time hereafter, and to place said property again in the possession of a receiver, and to resell or otherwise dispose of the same for the purpose of securing compliance with any orders which it shall make in this cause."

On June 27, 1889, McNulta, as receiver, gave notice to the

Statement of the Case.

Chicago Deposit Vault Company that he would not need the leased rooms after August 1, 1889, and that on July 31, 1889, he would surrender possession of the premises to the lessor. The rent was paid by McNulta up to the latter date, when he vacated and gave up possession of the premises.

The Chicago Deposit Vault Company on June 29, 1889, filed an intervening petition in the foreclosure suit of Beers, setting up the execution of the lease; the taking possession and occupancy of the rooms under it by the receivers Cooley and McNulta, and the payment of the monthly rental therefor during the period of such occupancy. The petition also set out the notice given by McNulta, receiver, of his intention to surrender possession of the rooms, and that he would cease paying rent after July 31, 1889. The petition insisted that the receiver had no right to surrender the lease; that it would be unjust and inequitable, and prayed that he might be restrained from so doing, and that the purchasers of the mortgaged premises at the foreclosure sale should be required to abide by and perform the terms of the lease; that an adequate fund out of the trust assets should be retained in the court to assure the payment of the rent thereafter to accrue, and that the same be applied to the payment of such rent.

To this intervening petition the receiver and the purchasers filed an answer, which, after admitting the execution of the lease by Cooley, as receiver, averred that he had no power, without the approval of the court, to bind the court or the funds of the receivership beyond the time the premises should be required by the receiver, and that the lease was properly terminated by the last receiver's notice. The answer further stated that on July 1, 1889, the receiver, under and in pursuance of the order of the court of June 20, 1889, had turned over all the property to the purchasers at the foreclosure sale.

An amended petition, filed by the intervenor on April 5, 1890, set forth that $7875 had accrued as rental under the lease since the filing of its original petition, and repeated substantially the same prayer for relief.

Proof was made of the execution of the lease, possession of the premises by the two receivers, payment of the monthly