HUNT v. ILLINOIS CENT. R. CO., 96 F. 644

SEAMAN, District Judge, after the foregoing statement, delivered the opinion of the court. This appeal is by the receiver alone, and the argument on his behalf assumes that the decree or order in question is one for specific performance of the contract of the Neoga Company.

It is thereupon contended (1) that the contract was a. mere parol executory license; (2) that as such, being revocable and unrecorded, it was not binding on the defendant or the receiver; (3) that, being exec-utory, the receiver could adopt or reject at his option; (4) that personal services were required by the contract, for which there can be no decree for specific performance; (5) that petitioner had an adequate remedy at law; (6) that the defendant company neither appeared nor was cited, and the decree was improper as one of specific performance affecting such defendant.

If this assumption is well founded as to the nature of the decree or order, — that it is an adjudication of specific performance of the covenants of the contract made by the original Neoga Company, as covenants running with the railroad property and binding upon purchasers,- — the objections to such decree are not without force, and should be considered.

On the other hand, if the order is purely interlocutory and administrative, operating alone upon the management of the receiver, it is not dependent upon the obligations of the contract, hut upon an exercise of judicial discretion; and there is no adjudication of permanent liability to run with the property, the contract being treated as evidence by which to ascertain the reasonableness and measure of the duty imposed by the order upon the re-oeiver. In the brief for the appellee it is said: “The order is interlocutory in the fullest sense of the term.

It is in no sense a ‘final decision.’ It was not necessarily entered of record. Its validity did not depend upon its being in writing. It may be modified or changed or canceled by the court which made it.” And, so considered, it is not material to inquire whether the covenants are binding beyond the original contractor, nor is the wisdom or propriety of the order open to review on behalf of the receiver. We are of opinion that the so-called “decree” from which the appeal was allowed is exclusively an order of the court directing the receiver “in the administration of the estate,” such as the recent opinion of Mr.

Justice Brewer, for the supreme court, in Bosworth v. Association, 19 Sup. Ct. 625. clearly defines as one resting in “the sound discretion of the trial court,”- and not ’subject to appeal by the receiver. Possession of the railroad property in controversy is in the'circuit court, operating through a receiver, and it is charged with the duty of providing means and measures fpr safe and efficient operation. The facts are undisputed that the crossing referred to is dangerous, and that means are both attainable and necessary to protect passing trains.

By the petition of the intervener, action of the court was invoked to that end, calling attention to the danger, to the need of devices for protection, and to refusal on the part of the receiver to make provision therefor.

The petition further sets up the contract entered into by the Neoga Company as ground for requiring the receiver to furnish the appliances and services there mentioned; and the sole prayer is for a rule on the receiver to show cause, and that upon hearing he be ordered “to proceed without delay, and build said crossing gates, and maintain the same, according to the terms of said contract.” The order, in effect:, proceeds no further than such direction to the receiver, the expense to'be borne by the property in his hands.

Whether the court, in exercising its undoubted discretion in that regai’d, treated the contract either as entitled to equitable consideration in fixing this slight burden upon the estate, or as a legal charge, does not change the character of the order. The recitals which appear by way of findings are mere reasons for exercising the discretion, and not essential to the order, and cannot serve „io extend its scope info an adjudication respecting rights and interests which were neither before the court nor necessarily involved.

No appeal from the order would extend beyond its final requirement, by which crossing gates and signals are adopted for protection, and the receiver directed to furnish and maintain such means at the expense of the estate.

On this conclusion, in a matter within the sound discretion of the court, the sole inquiry on review would be whether it constituted an abuse of discretion; and if it be assumed, by way of argument, that the means selected were not adequate, and that good reason did not appear for charging the receivership alone with performance, the utmost of the assumption would involve mere error in judgment, and in no sense an abuse of discretion.

As the question is clearly administrative, relating to provision for safety in the operation of the road, its determination by the court and the direction for performance are conclusive upon the receiver, and be cannot appeal. See Boswortb v. Association, supra, reviewing and distinguishing the decision of this court in the same case (53 U. S. App. 302, 26 C. C. A. 279, and 80 Fed. 969). The appeal is dismissed.