EASTON t7. BOUSTON & T. C. RY. CO.
189
burden are holden to bear it equally and ratably. Deering v. Earl· oj Winchelsea, 2 Bos. & P. 270; Miller v. Sawyer, 30 Vt. 412; PoUard v. Bailey, 20 Wall. 520. The orators seek to bring the testator within this rule, and to have the common burden made even by contribution. If this can be done, the liability will rest upon the implied obligation to render to the orators what equitably and justly belongs to them. This does not grow outof any such tort as dies with the person at common law. but appears to be such an obligation as survives. Harnbly v. Trott. Cowp. 372; 2 Redf. Wills, 163; Dana v. IJUU, 21 Vt. 383. The orators appear, therefore, to be entitled to have their case tried, and it cannot properly fe dismissed without Motion to dismiss denied.
EASTON
et aI.
t1.
Ho
STON
& T. C. Ry. Co. et
at
(Oircuit Oourt. E. D. Texas. June 4, 1889.) L RAn.ROAD COMPUIES-MoRTGAGE FORECLOSURE-'l'RUSTEES AIm RBCEIVERs-CoIIPENSATION.
On foreclosure it appeared that the trustees and receivers contracted originally to render their services for the sum of $1.500, and that they were paid such sum up to the beginning-of the litigation; that since the litigation commenced they have been paid by allowances by the court to them as receivers. and byappropriation by themselves as trustees, at the rate of "'.500 per year. The services rentake all or nearly all of their . dered were not exclusive of their business, and did time, and there was no great responsibility requiring extraordinary compensation. Held, that they had been amply compensated, and that an extra allowance was improper. The allowance of 1500 was ample compensation for the services of a trustee of a mortgage. of which there \vas only one bond of $500 outstanding, the balance of the issue of $1,500,000 deposited with a trust company; his services in the litigation being merely nomma!, and going no further than the use of his name. Such trustee insisted on the services of his attorneys in flling the bill for foreclosure of the mortgage of which he was trustee; and it was admitted that at the time of such employment suoh services were worth f2,500. Held, that such sum should be to the attorneys. Iii. the foreclosure proceedings there was no substantial contest, the whole matter being practically carried out in pursuance of a plan of reorganization, for which the solicitors for complainants were in no particular degree responsible. Held, that the sum of $100,000 should be allowed as compensation to the solicitors who represented the trustees of all the mortgages.
.. SAME.
8.
SAlim-ATTORNEYS' FEES.
"
SAME.
In Equity. On exceptions to the master's report on the subject of compensation. Farrar, Jona8& KruttBchnitt, for Central Trust Company. T. J. Swmes, for Rintoul and Easton, trustees, and for Sullivan & Cromwell and Davenport, Dilloway & Leeds. Willie, Mott & Ballinger, in pro. per., and for Ballinger, Mott & Terry. (loldthwaite & Ewing, in pro. p('//'., and for Sheperd, trustee. Before LAMAR, J ustice, and PARDEE, J.
\,
This. heard o;nthe of t46 Cqt;npany, aJ;lQ.. other to the allowances to Messrs., Rintoul, and receivBolli van 4z; i Ylpu1 well, ,solicitors. for)!1aston, trustee, 'ers, solicitqfs trustee, and upon ,the.!il:x:ceptions,of,Messrs. Goldthwaite & Ewing to the.in,the allowance them as of Benjamin Shep,erd,. trustee, a:nd upon the of Bewaml;tl' trustee, to the illsufficiency of the aUowance.mltde to him. as the ,trustee of the ind!'lmnity mortgage, and upon th.6 exceptions' of BalljngeJ;', Mott & Terry Ballinger to; the 1l.11owance made to; as solicito!-'s and Willie, for Easton and Rintoul, trustees, and tor the Farmers' Loan & Trust Company, trusteesj and was argued. We have examined the master's report, and considered the evidence in relation to the matters involved in these exceptions, and in the report of the special master. In regard to the services of Rintoul and Easton, trustees and receivers, wehave·.considered that their aeryices in and about the litigation, which ended in the foreclosure of all the mortgages agajnst the Houston & Texas Central Railway Company, were not exbusinessj not of such a nature as to take all, or nearly clusive of all, of their titne; that there was no great responsibility requiring extraordinary compensation, but that ,their. services were Perfectly consistent with following their regular avocationsjand that, asamatter of fact in the case, Trustee Rintoul makesti,<> pretense that he, ,bJisbeen hindered or delayed in any way in the transaction of his regular and legitimate business. . We find in the case the.t these gentlemeti contracted originally to render their services for the sum of $1,500 a year, and that they were paid such sum up to the beginning of this litigation; that since the litigation commenced they have been paid in various ways-through al. lowances by the cQurt to thetnasreceivers, and by appropriations made by themselves as trustees"-';'tl)e full sum of $17,500 each, or at about the rate of $4,500 per year since the litigation begun. Under these circumstances, 'We are of the opinion that the said receivers have been am· ply paid and oompensated for the services rendered by them in the amounts that they have already received in the case. We therefore con· elude that the exceptions to the master's report, making each of them' an. additional allowance, are well taken. . As to the compensation of Sheperd, trustee, W6 find that he was trU8-0 tee of a mortgage of which there was only one bond of$500 outstanding, the balance of the issue of $1 ,500,000 being deposited with a trust com· panYj that he hilS rendered. no services for which he .has not been compensated; and that his services in this litigittion were merely nominal, of his namejand that the allowance and went no fqrther: than the. J;lythe master to him of $500 was !'tmple compensation for all that he has done in the case. It was practically admitted on the .hearing that the services of Goldthwaite & Ewing, in filing the bill for the foreclosure of the indemnity mortgage, of which Sheperd was trustee, were insisted npon by Sheperd,trusteej and that at the time. of employtDent such
fl.
'HOUSTON &: T. Co BT.ClO.
191
services were admitted to be worth $2,500. We therefore think that that sum should have been allowed by the master, and that the excep& Ewing is well taken. tionfiled by As to the compensation of the solicitors who represented the trustees of all of the mortgages that were foreclosed in this suit, considering that the services were rendered under the eye of the coutt, and that the judges are well acquainted with the character of the services, and that in the foreclosure proceedings proper there was no substantial contest, the whole matter being practically carried out in pursuance of a plan of reorganizati(>n, for which the solicitors for complainants were in no particular degree responsible, we are of the opinion that the su'm of $100,000 will be ample and generous compensation; and we are Of the opinion that this GompensatiGnshould be apportioned among the several counsel employed as follows: $2,500 to the firm ofGoldthwaite & Ewing, solicitors for the trustee in the indemnity mortgage; that the balance, $97,500, should bj3 equally divided between the New York solicitors for Rintoul and Easton, trustees in the several mortgages represented by them; and the solicitors of the Farmers' Loan & Trust Com pany in the several mortgages represenwd by said ttUSt, QompanYj and the firms of Ballinger, Mott & Terry and Willie, Mott & Ballinger, who represented in Texas all the'said tl'1,1st,ees, with ,the e'xception of Sheperd, trustee of the indemnity mortgage. This apportionment will give to Messrs. Sullivan & Cromwell the sum of $16,250, which amount, by the report of the master. it seems they have already been paid by the trustees represented by .of the trust fund; to Davenport, Dilloway & Leeds, solicitors for Rintoul, trustee, the sum of $16,250, which, by the report of the n:\aster, hilS. also 1?een Pllidby the said trustees out of the trust fund. The solicitors for the Farmers" Loan'& Trust Company, by stipulation heretofore filed in the case, have accepted in full compensation the sum oU32,250, which is but $250 less than would have been set apart to them under this apportionment. It gives to Messrs. Ballinger, Mott & Terry and Willie, Mott & Ballinger, who represented both sets oftrusteesin Texas"the sum of $32,500. By the master's report it appears that they have been paid onaccolint the sum, of $7,250 by the. trustees to this apportionment, the sum represented by them, oU25,250, whicn'should be further reduced by such sums as said firms havereceiv.ed, pending this litigation, as the counsel for the several receivers in the case. For these reasons, it is therefore ordered, adjudged, and decreed that the master's report in this case on the compensation of Messrs. Rintouland Easton, be so amended as to recommend no further allowance to them beyond the amohnts they have already paid by',the court as receivers, and paid themselves, as trustees,for their services in the That in the matter of compensation to Messrs. Sullivan & Cromwell, solicitors for Nelson S. Easton, the report be so amended as to find. that they have been amply compensated for their services rendered in this case by the amounts already received from the tl'uet funds,':and that they'are entitled to no further allowance. As to the compenSation of Davenpon,Dilloway & Leeds, that the mastel"sl'e-
·. FEDERAL REPORTER, vol. 40. port be so-amended as to find that they have been amply compensated for their services in the ·case by the amounts already received from the trust funds, and that no further allowance be made to them. That on the compensation of Ballinger, Mott & Terry and Willie, Mott & Ballinger, the said master's report be so amended as to find that they are entitled for their services rendered in and about the said suit the sum 0-1" $32,500, and that they should be allowed such sum subject to credit for the amounts received on account either from the trustees or for services rendered to the· receivers. That in the matter of compensation of Goldthwaite & Ewing, the master's report should be amended so as to recommend an allowance of $2,500 for their services in and about the sai'dlitigation. That, as amended, all exceptions to the said report be, and the same are hereby, overruled, and the said report as amended be, and the same is, approved and confirmed. .
SILVER
11·. CONNECTICUT
RIVER Lmnnm Co. 11.
CONNECTICUT RIVER LUMBER CO.
SlINER.
(Ctrcuit Court, D. VIlrI'ItOtlt. October 22, 1889.)
L
AUBITRATIOlf AND AWARD-MISOONDUCT OP
The facts that one arbitrator unconsciously permits his jealousy of the other, who bad often been selected as arbitrator in similar causes, to slightly warp his judgment the selector of the other arbitrator, and that the other, from lack of independence, adjusts his jUdgment to balance that supposed leaning, do not vitiate the result honestly reached by them.· . . ; ..
That the arbitrator selected by defendant in choosing a third conslIlts with defendant with·the oonourrence of the other arbitrator, and without objeotion from the orator, is not a vitiating irregularity, where the result is the selection of one satisfactory to all.
In an aotion to set aside an.award of 11,000 aa damages to premises by ftoatinr logs, it appeared that a substantial part of the damages allowed was for thebresking of the bank of the river where it was supposed not to have been broken before. . From facts not then available it appeared that the bank had been broken before. The master found that the actual damages were not above $600. The amount allowed by the arbitrators for the broken bank was not ascertainable. HeUl, that the defendant might elect to remit UOO, and, upon failure to 80 remit, that the award should be set a,ide.
SAME-MISTAKE; IN FAOTS.
At Law. Action by William R. Silver against the Connecticllt River Lumber Company, to enforce an award, and suit in equity by Connecticut River Lumber Company against Silver, to set aside the award. Henry C. Ide and Edgar Aldrich, for the lumber company·. Fletcher· Ladd and William Heywood,. for Silver. WHEELER, J. This action at law is brought upon an award byarbitrators for damage done to lands of the plaintiff by logs of the defendant floating in Connecticut river. The amount of the damages, and not the
