
    Hanson and others vs. Chicago & Lake Superior Railway Company and others, Respondents: Central Locomotive & Car Works, Appellant.
    
      April 3
    
    April 30, 1918.
    
    
      Appeal: Waiver of right: Acquiescence in order: Acceptance of benefits.
    
    1. A party who intentionally accepts the fruits of an order cannot maintain an appeal therefrom, even though he did not intend to relinquish such right.
    2. Where, on petition of the vendor of a railway car, the receiver of the insolvent purchaser was ordered to deliver the car to the vendor upon condition that the latter surrender unpaid notes given for the purchase price, and the vendor thereafter took the car without surrendering the notes, such taking must he deemed to have been in pursuance of the order and the vendor cannot thereafter appeal therefrom.
    3. A suggestion by the receiver that the vendor remove the car before the track laid by the purchaser should be taken up gave’the vendor no rights contrary to the order and did not prevent the removal from being an acquiescence in the order.
    Appeal from an order of tbe circuit court for Dane county: Mastín L. Lueoe, Judge.
    
      Dismissed.
    
    Petition by tbe Central Locomotive & Car Works to recover possession of a combination passenger and baggage car sold to tbe Chicago & Lake Superior Railway Company, an insolvent corporation. At tbe time tbe petition was filed tbe car was in tbe possession of Frank W. Lucas, tbe receiver of tbe corporation. Evidence was taken, and on October 10, 1917, tbe court made an order directing tbe receiver to deliver tbe car to tbe petitioner upon condition that it surrender to tbe receiver tbe balance of tbe unpaid notes wbicb it beld for tbe purchase price of tbe car. Tbis order was understood by tbe receiver to be satisfactory. to tbe petitioner, tbougb its attorney stated at tbe time it was announced by tbe court tbat be could not stipulate that sucb an order should be made. On October 27, 1917, tbe receiver wrote to tbe petitioner stating tbat if it bad not already removed tbe car it might be advisable for it to do so at once as tbe purchaser of tbe steel of tbe insolvent corporation bad made arrangements to take up its track, and if not removed before tbe track was taken up it might occasion petitioner considerable expense to remove -tbe car. On .November 9, 1917, tbe petitioner appealed from tbe order made, and on tbe next day it removed tbe car to Chicago Heights, Illinois, and still retains tbe same. Tbe receiver and tbe defendant Chicago & Lake Superior Railway Company seasonably moved to dismiss tbe appeal on tbe ground tbat petitioner, by taking tbe car, acquiesced in tbe terms of tbe order and could not maintain an appeal therefrom. Tbe motion to dismiss tbe appeal was argued with tbe merits of tbe case.
    
      Rufus B. Smith of IVIadison, for tbe appellant.
    
      Frank W. Lucas of Madison, tbe respondent receiver, pro se. '
    
    For tbe respondents Chicago & Lake Superior Railway Company, Rohe Dow, and B. L. Delameter there was a brief by Richmond, Jackman, Wilkie & Tocbaas of Madison, and oral argument by Harold M. Wilkie.
    
   ViNJE, J.

Tbe petitioner urges tbat since tbe receiver wrote and suggested tbat it remove tbe car it bad a right to do so without acquiescing in tbe order made, and tbat its talcing tbe car could not affect its right to appeal from tbe order made. Tbe letter of tbe receiver was no doubt prompted, as stated by him, by tbe fact tbat be thought tbe order made was acceptable to tbe petitioner, and tbat to save it expense be wrote advising it of tbe pending removal of tbe track. But if not so, the petitioner knew tbat tbe receiver bad no right to modify or violate tbe order of tbe court, and tbat it could acquire no right from tbe receiver contrary to tbe court’s order.

Claim is also made tbat tbe car was taken by the petitioner to protect it from injury and to save'expense. But there is nothing to show that the receiver would not have adequately cared for it, and certainly no good reason is presented why it should, without leave of the court, have been taken outside of its jurisdiction for protection only. The petitioner must have taken the car either under or in spite of the order. We cannot assume that it intentionally violated the court’s order, hence it must be .deemed to have taken the car in pursuance thereof. Having so taken it, no appeal by petitioner lies from the order even though it did not, as it says, intend to relinquish its right of appeal. For a party who intentionally accepts the fruits of an order cannot maintain an appeal therefrom.

By the Gourt. — Appeal dismissed'.  