Page:Federal Reporter, 1st Series, Volume 2.djvu/124

 TARMERS' II. & T. CO. V. ST. J. <fc D. 0. B. 00. 117 ���Faemeks' Loan & Trust Company v. The St. Joseph & Denver City Eailroad Company and others. �{Circuit Court, D. NehraeTca. May, 1880.) �Lease — Pakt Pekfobmance.— a lease which has not been reduced to writing, but has been acted upon and partly performed, will be consid- ered as binding a8 if signed. �Same — Ultra Vires — Ratification bt Stockholdeks. — Under section 152, p. 204, Statutes of Nebraska, a railroad company in that state can- not make a valid lease of its property and franchises for the term of its charter, without the same being ratlfied by its stockholders ; but when the same have been used for a time under such void agreement, the Company, or those representing it, may recover a just compensation for the use of such property durin jiç the time it is go used. �In the matter of the petition of the Burlington & Missouri Eiver Eailroad Company in Nebraska. �J. M, Woolworth, for Burlington & Missouri Eiver Eail- road Company in Nebraska. �John Doniphan and A. J. Poppleton for William Bond, receiver of St. Joseph & Denver City Eailroad Company. �McCrary, C. j. Prior to the commencement of this cause the defendant company had leased from the Burlington & Missouri Eiver Eailroad Company in Nebraska so much of its road as lies between Hastings, Nebraska, and Kearney, Nebraska, including road track, depôts, and other property. The contract here cailed a lease will be referred to more par- ticularly hereafter. �In the present suit (being a bill to foreclose a mortgage upon the road and property of the defendant company) a re- ceiver was appointed, who oontinued to use said road between Hastings and Kearney, under the terms of said lease, until January 1, 1876. �The said Burlington & Missouri Eiver Eailroad Company in Nebraska petitions the court for an order on the receiver to pay certain balances claimed as due under said lease, and it is upon this petition that this case is now before me. The claim of the petitioner is admitted by the receiver except one item, to-wit: a claim of $17,164.95, for depreciation or wear ����