#### Matter of the Receivership of The Punnett Cycle Manufacturing Co.

(Supreme Court, Monroe Special Term,

July, 1898.)

¡Receiver — Loss of. profits on unfilled orders not recoverable-.

A receiver of an engine manufacturing company, authorized by the court to make up' and dispose of such goods and articles as he could manufacture with the plant at a profit, for such period of time as to him seemed beneficial to the creditors and stockholders of the corporation or until ,the further order of the court, and who was further authorized, upon the same terms and conditions, to enter into contracts, has not been vested with, such unlimited powers to contract as entitle him to recover of the receiver of a cycle manufacturing company for a loss Of profits, which he claims to- have sustained on certain bicycle parts ordered of him by the- cycle company, but never manufactured by him for the reason that the cycle company failed.

Motion to confirm the report of a referee upon a reference to settle controversies .arising between creditors of the Punnett Cycle. Company and receiver of the company.

The Shipman Manufacturing Company, as the assignee of the receiver of the Shipman Engine Manufacturing Company, excepted to the disallowance-by the referee of a claim for prospective profits as damages for the breach of an alleged agreement of the cycle company to take certain goods ordered by that company of the receiver of the Shipman Engine Company while the receiver was engaged in carrying on the business of the company under an order of the court.

The Punnett Cycle Manufacturing Company ordered of the receiver of the Shipman Engine Company 2,500 sets of bicycle parts, only a portion of which had -been made and delivered by the receiver when the cycle company failed and went into the hands of *311a receiver, against whom a claim of payment for goods made and delivered and partly made up, and also a claim for loss of profits upon goods ordered but not manufactured was made. The referee allowed the claim for damages for goods made and partly made up, but disallowed the damages claimed for profits which would have been made upon the goods ordered but not manufactured.

J. Breck Perkins, for receiver Punnett Cycle Company.

G. M. W. Bills, for Shipman Manufacturing Company.

Nash, J.

The finding of the referee upon the. claim of the Ship-man Manufacturing Company should be confirmed, not, as it seems to me, because the claim for future profits in favor of the receiver of the Shipman Engine Manufacturing Company was not assignable, but because the proposal of the receiver and its acceptance by the Punnett Cycle Manufacturing Company did not constitute a contract so far obligatory upon the parties as to entitle the receiver to recover damages for loss of future profits upon goods not manufactured.

• The receiver of the Shipman Engine Manufactming Company had limited authority .to contract for the sale and delivery of goods, during the term of his receivership, which was indefinite and might be terminated at any time by order of the court. The receiver, as such, had authority given him by order of the court as follows: *“*To carry on the business of the Shipman Engine Manufacturing Company and operate its manufacturing plant and make up and dispose of the goods and articles made by said corporation, and such goods and articles as he can manufacture with its plant at a profit for such period of time as to him seems beneficial to- the creditors and stockholders of said corporation, or until further order of this court, and to employ men, purchase materials and pay the necessary expenses of the operation of said plant' and the manufacture of said goods and merchandise, and enter into such contracts as shall be necessary therefor, so long as he can do the same to a profit and shall seem for the best interest of the creditors and stockholders of said corporation, or until the further order of this court.”

The receiver could not, without an order expressly authorizing him so to do, enter into a contract binding himself as receiver to make and deliver in- the future a certain quantity of goods within a definitely specified time, so as to subject the estate or his receiver*312ship to damages in case of his inability to perform; nor could the cycle company, unless the receiver had such authority granted by the court, enter into such a contract, which would, in case of a breach by the receiver, entitle it to- damages for nonperformance. A receiver’s powers are limited to the authority expressly conferred, of which all persons dealing with him must take notice. The receiver here was authorized simply to make up and dispose of such goods and articles as he could- manufacture with the plant at a profit, for such period of time as to him seemed beneficial to the creditors and stockholders of the corporation, and enter into such contracts as should be necessary therefor, so long as he could do the same at a profit, and as he should deem for the best interest of the creditors and stockholders, or until the further order ¡of the court.

The -power of the receiver was limited to the manufacture of goods for such period of time only as the same should be profitable; .and any contract made by him for the sale -and delivery of goods was, by the terms of the order granting authority to make and sell goods, subject to this limitation. . If at any time it should become unprofitable, he was required to cease manufacture., or he could have been required to stop. He could not by any contract for the making and delivery of goods in the future subject the property in his hands to the risks and vicissitudes of trade. The fact that he did make a contract which he could have fully performed at a profit does not affect the question as to his power to contract. He was authorized-to carry on the other branches of business in which the Shipman Engine Manufacturing Company had been engaged, and of which it had made a failure. The result might have been the same had he engaged in unlimited manufacture of goods. There was not that mutuality of contract between the cycle manufacturing company and the receiver which would entitle the latter to recover damages for the loss of future profits.

The report of the referee should be confirmed as to all the claimants, without costs.

Referee’s report confirmed, without costs.