Page:Federal Reporter, 1st Series, Volume 8.djvu/79

FABMEBS' LOAN & TBtST CO. V. OENTBAL B. OF lOWA. 65 �to petitioner, and were furnished by him for the repairing of the road during his receivership, and for which he received 40 cents for cross- ties, and 75 cents for bridge-ties. It does not appear that the ties were secretly furnished, and the master reports that the road had become nnsafe for the operation of trains, and that the wet weather which prevailed rendered it very difficult to haul ties from the timber, so that it was hardly possible to obtain them. The fact that under these circumstances they were furnished by the receiver himself , from a lot he had on hand, does not render the transaction fraudnlent per se. If they were taken and paid for by the receiver at an exorbitant price, with intent to defraud the eompany, the case would be different. This, however, cannot be regarded as proven by the proof before us. The proof as to the value of the ties is somewhat conflicting, and there is evidence strongly tending to show that petitioner had nothing to do with flxing the price. This whole subject remains to be con- sidered and reported upon by the master, under bill filed by com- plainant to surcharge and falsify the accounts of petitioner. For the present, therefore, we only say that the item is not shown to be fraud- ulent in such a sense as to deprive petitioner of just compensation for services rendered by him. �The same may be said concerning the charge that the petitioner as receiver purchased for the road lumber in which he was pereonaily interested. It appears that petitioner had nothing to do with fixing the price. It is probable that some of this lumber was of inferior quality, and that General Superintendent Eussell and the foreman of the ear-shops fixed a higher price upon it than was just; but in the absence of proof we cannot presume that petitioner knowingly and corruptly received more than his interest in the lumber was worth. �As to the other items objected to there is still less evidence of corrupt purpose, and we do not think it necessary to consider them in detail. A clear distinction is to be drawn between the question whether the receiver shall be allowed for these expenditnres upon final settlement, and the question whether his conduct with respect to them has been such as to deprive him of the right to receive com- pensation for his services. It as pnly upon the ground of deliberate fraud that so severe a penalty as a loss of all pay oan^be with pro- priety enforced; while on the ground of error or mistake alone the receiver may be charged with the expenditure upon final settlement. It is manifest that we cannot find fraud established by the proof before us. Indeed, there is nothing in the answer to petitioner's claim, nor in any of the pleadings forming the issues now on trial, v.8,no.2— 5 ��� �