A motion for rehearing is made on the ground that it has not been made to appear in the evidence that the improvements or betterments made during the receivership were paid for by the receiver's net earnings.
It was shown that tracks in the city of El Paso alone were built at a cost of about $10,000, while the property was in the receiver's hands.
It is insisted that as receivers sometimes procure funds by means of receiver's certificates, that the testimony should have excluded that possibility.
We believe that the evidence shows all that it was necessary for the plaintiff to show in the first instance. It was incumbent on the defendant, if such defense existed, to establish that the fund used in the construction of the improvements was obtained in some other way than through the usual channels. On the same principle, it was incumbent on the defendant to show that where earnings appear to have been applied by the receiver *Page 605 to improvements, the same were not net earnings. Railway v. Geiger, 79 Tex. 18; Railway v. Bailey, 83 Tex. 23.
It is our opinion that the evidence disclosed a prima facie liability, strengthened by the purpose of the receivership as declared in application therefor, which was primarily to place the property of the defendant in good condition, out of the revenues.
The motion is overruled.
Motion overruled.