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122 122 HARVARD LAW REVIEW. or does acts under the contract, he will be held thereafter to have pre- cluded himself, however burdensome the contract may be, from throwing it up. This theory that a receiver is subject to the ordinary rules of election has had several rude shocks during the last ten years, notably in the familiar Wabash Railroad cases {Qmncy R. R. Co. Hiimphf-eys, 145 U. S. 82 ; Central Trust Co. v. Railroad Co., 150 U. S. 287) -, and also, recently, in Massachusetts {Bell v. American Protective League, 163 Mass. 158). The latter case is strong; a receiver, who had retained the lease of certain premises for over a year, with the avowed intention of selling the lease for the benefit of the trust estate, was held not liable for rent after he had finally decided, in defiance of the protest of the lessor, to throw up the lease. In spite of these decisions, however, the old dicta have continued to be repeated as regards the duty of electing "within a reasonable time." A case decided by Judge Jenkins, March 22, 1896, in the Circuit Court for the Eastern District of Wisconsin, Stewart et al v. Wisco?isin Central Co.., in re Clybourn Park Company., petitioner (not yet reported), shows conspicuously, however, how misleading the phrase has become. In this case the petitioner had taken from the railroad company a ten year lease of a tract of land, for the purpose of improving this tract and using it as a picnic ground ; and by a covenant of the lease the railroad com- pany bound itself to furnish cars for picnics at the rate of $17 a car. Receivers were appointed for the railroad company in September, 1893, after the close of that year's picnic season. During the spring of 1894 the receivers made investigations, and it was admitted that by July 2, 1894, they had actually made up their minds to disaffirm the executory portion of the contract, on the ground that it was burdensome to the trust estate. Meanwhile, however, the petitioner had made arrange- ments for its summer business and was actually conducting picnics, and pending their final decision the receivers had been accepting this business upon the old terms. After making up their minds that the contract ought ultimately to be disafifirmed, the receivers continued to operate under its provisions until the close of the season ; and it was not until August 29, 1894, that they first notified the petitioner of their intention to abrogate the ^17 rate. As counsel for the petitioner said at the argument, if the doctrine exists that an election to affirm may be fastened on receivers, independent of the actual intention so to elect, by mere acts done after they have had time enough to decide, it would be impossible to imagine a clearer case for its application ; for the " reasonable time " for making a decision must at least have expired when they actually made it ; and they acted under the contract for two months more. It also appeared, however, that, so far from being injured by the delay, the petitioner would have suffered considerable loss if notified at any time subsequent to a date when the reasonable time for decision had clearly not elapsed, and that it made profits of several thousand dollars which it would not have made if the receivers had communicated their decision on July 2 or earlier. There was another point in the case upon which the right of the petitioner to equitable relief was denied, on the ground that it did not come into court with clean hands. But the alternative prayer for damages for non -perform- ance of the contract during 1895 was explicitly denied by the court, on tiie ground that the election to disaffirm made in August, 1894, was a valid election, and terminated the contract.