text:
    ERROR — WITNESSES
    [Cuyahoga (8th) Circuit Court,
    November 16, 1908.]
    Winch, Henry and Marvin, JJ.

      Sherwin-Williams Co. v. George J. Kavanaugh.
    1. Witnesses May Give Expert Testimony Concerning Machines when Familiar with Similar Machines.
    Witnesses may give expert evidence concerning the construction and operation of a certain machine, where it appears that they have operated similar machines of a slightly different size or in a slightly different position.
    2. Reviewing Court can not Pass Upon Weight of Evidence when Object Illustrating Evidence in Trial Court is not before It.
    When it appears from the bill of exceptions that witnesses in testifying used a photo-engraving and a piece of tin in explaining the construction and operation of a machine, such testimony being plain and patent to the jury but more or less unintelligible to a reviewing court, it can not be said without such photoengraving and piece of tin before it, that the reviewing court has all of the evidence which was before the jury, and the court will not be able to determine whether the verdict is sustained by the weight of the evidence.
    Error.

      Ingersoll & Bacon, for plaintiff in error.

      Hart, Canfield & Crohe, for defendant in error.

      Affirmed no opinion, Sherwin-Williams Co. v. Kavanaugh, 81 Ohio St. 503.

   HENRY, J.

This was a case of employer’s liability for injuries to an employe. Kavanaugh’s hand was caught and crushed between the dies of a stamping press used at the time to stamp out the tin tops or bottoms of gallon paint cans. He recovered a verdict and judgment in the court of common pleas. Among the errors complained of in this proceeding is the admission in evidence of the expert testimony of two witnesses, offered by the plaintiff below, who testified as to the manner of feeding the press under the circumstances attending this accident, although it appeared that one of them had never operated such a press with dies of just the size then in use, and the other had never operated it when the table was in the precise position in which it was used on this occasion; otherwise, both witnesses were fully qualified to give expert testimony, by reason of long familiarity and actual use of the kind of machine in question. We hold that the admission of this evidence was not error.

It is further contended that the verdict is not sustained by the evidence in two particulars; first: as to the foreman’s promise to repair the machine when the plaintiff below complained to him that it had repeated, and his assurance thereafter to the plaintiff below that it had been so repaired; secondly, upon the question of the contributory negligence of the plaintiff below in placing his hand between the dies, when feeding the press.

As to the former contention, there is an apparent conflict between the testimony of the plaintiff below' to conversations with the foreman, and the evidence of a written time sheet, indicating that the foreman was not present on the day in question. The time sheet was compiled with other slips, and if it be competent evidence of the foreman’s absence on that occasion, it is not, to our minds, so conclusive as to warrant us in holding that the jury were wrong in resolving the conflict, as their verdict implies that they did.

On the other point it appears, from the bill of exceptions, that a photo-engraving of the press was employed by a witness on behalf of the plaintiff below, to illustrate to the jury his testimony of the construction of the press. It was not formally offered in evidence, but it undoubtedly had the effect' of evidence, and the testimony in this regard is hardly intelligible without it. This picture is not included in the bill of exceptions; this is also true of the piece of tin, which it appears from the testmony of one of the witnesses was taken by him from the press immediately after the accident, and which appears from the bill to have been exhibited to the jury, although it, too, is absent from the bill of exceptions, presumably because it was not formally offered in evidence.

In Foster Coal Co. v. Moherman 6 Circ. Dec. 437 (9 R. 544) it was held in the second paragraph of the syllabus that:

“Where it appears from the bill of exceptions that the witnesses in testifying largely used a map, pointing out places on it, such testimony being patent and plain to the jury, but entirely unintelligible to the reviewing court, it can not be said that all the evidence before such court that was before the jury, and the court will not be able to determine the question whether the verdict is sustained by the weight of the evidence or not.”

We are strongly inclined to the opinion that, under the authority of this decision, we are without power to weigh the evidence in this case. So far as we understand the facts, the plaintiff’s evidence tends to prove that while he was working at this machine it repeated; that is to say, the upper die descended upon the lower die a second time, without being caused to make such second descent by any pressure of the operator’s foot upon the treadle by which means alone such descents could normally be actuated.

As already stated, he complained to the foreman, and received a promise of repairs, which the foreman subsequently assured him had been done. On the following day the machine again repeated while plaintiff’s hand was between the dies in the act of feeding the press. It appears also that plaintiff might have adopted a safer method of feeding, which would not have required him to have his hand between the dies, but that the method which he employed was the usual and more convenient manner. Upon all these points, though there is much conflict of testimony, perhaps if we had all the light which the jury had by way of illustration, as well as the oral testimony, we might be led to a different conclusion from that reached by them. Neither the negligence of the defendant nor the freedom from contributory negligence on the part of the plaintiff below are as clear as they were in the very similar case of Goggin v. Electric Controller & Supply Co., 41 O. C. C. 689 (17 N. S. 15), wherein we said:

“It thus appears, if these statements are true, that the cause of the spindle’s falling at the time he (the plaintiff) was injured was the defective condition of the nut and the screw, which was a part of it. It was a defect in this precise place that he had observed and complained of in the morning; it was this defective condition which the foreman had promised the plaintiff to repair and assured him that it had been repaired. The plain inference as it seems to us is that the repairs made were not complete or effectual, but that the same trouble which had twice appeared in the morning recurred again in the evening when plaintiff was injured. This, we hold, made a case for the jury, aud it was error under the circumstances to direct a verdict for the defendant.”

In the state of the record before us we are not prepared to say that the evidence, properly understood, would not suffice to sustain the verdict and judgment of the court of common pleas. The judgment is therefore affirmed.

Winch and Marvin, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    CORPORATIONS — SALES
    [Cuyahoga (8th) Circuit Court,
    November 16, 1908.]
    Winch, Henry and Marvin, JJ.
    State Banking & Tr. Co. v. Henry Martin Brick Mach. Mfg. Co. et al.
    1. Signature of Manager of Vendee Corporation Sufficient.
    When it appears in the body of a conditional contract of sale that the vendee is a certain corporation, and the contract is signed by the purchaser in such manner as to comply with the provisions of Sec. 4155-2 R. S. (Secs. 8568 G-. C. et sect.), if signed by and in the name of its manager thereunto lawfully authorized, it is binding although the name of the corporation is not signed.
    2. Vendor under Conditional Salei at Common Law may Retake without Tendering Repayment.
    At common law where title is expressly retained in the vendor of chattels until the purchase price is paid, upon default by the vendee, the vendor can retake them either from the vendee or any one having possession, without first tendering repayment of the sums paid by the vendee.-
    Error.

      Smith, Taft & Arter, for plaintiff in error.

      Kline, Tolies & Goff and Cook, McGowan & Foote, for defendants in error.
   HENRY, J.

This proceeding in error presents questions as to fixtures and conditional sales. The Eggers Brick Co. purchased from the Henry Martin Brick Machine Manufacturing Co. a dryer and other extensive appliances for the making of bricks, by written contract, wherein the title, until payment made, was reserved in the vendor. After these appliances were erected on the Eggers Brick Co.’s premises the land was sold, on foreclosure sale, to the State Banking & Trust Co., plaintiff in error here, which had notice, however, of the Martin Brick Machine Manufacturing Co’s claim of title to said appliances. The action below was a replevin proceeding, in which the Martin Brick Manufacturing Co. recovered a verdict and judgment, but the appliances sought to be replevied were retaken by the Eggers Brick Co., under redelivery bond, and the same are claimed by the bank, upon the theory that they were fixtures as between it and the Eggers Brick Co.; and also, because recourse to the redelivery bond is now the machine brick manufacturing company’s sole reliance it, too is without a claim upon the physical property.

As against the bank, the trustee in bankruptcy of the Eggers Brick Co. contends that the dryer, etc., are not fixtures but severable chattels which did not pass with the realty.

As against the machine manufacturing company, the trustee in bankruptcy contends that the contract of conditional sale is invalid under Sec. 4155-2 R. S. (Sec. 8568 G-. C. et seq.), not being evidenced by writing signed by the purchaser, and because the vendor being expressly excluded from the operation of Sec. 4155-3 R. S. (Sec. 8570 G-. C.), it is remitted to its common law rights and hence has no right to the possession of the machinery delivered by it until it returns, or offers to return, that part of the purchase price already received by it.

Taking up the last claim first, we hold, upon the authority of Sheehan v. Davis, 17 Ohio St. 571, that the contract in question was executed in a manner binding upon the Eggers Brick Co. when it was signed by and in the name of its manager, thereunto lawfully authorized, notwithstanding that the name of the corporation 'is not signed thereto, for it appears from the body of the instrument that the Eggers Brick Co. was the real contracting party.

It is true that the word sign and execute are not technically convertible terms, but it was held in Tiernan v. Fenimore, 17 Ohio, 545, that they are, in common parlance, used interchangeably. We interpret the word “signed” in Sec. (4155-2) in the broader sense.

As regards the right of the brick machine manufacturing company to maintain replevin for the dryer, etc., in pursuance of its retained title and for breach of the Eggers Brick Company’s agreement to pay, as stipulated, it is not true at the common law, as we understand it, that a tender back must be of such portion of the purchase money as had already been paid. The authorities cited on behalf of the trustee in bankruptcy do not apply when the vendor’s title is expressly retained until payment completed. Whatever right the vendee may have to a return of the money so paid can not be asserted in defense of the vendor’s right to retake possession of the goods. The vendee, in such case, has no property in the goods themselves Sage v. Sleutz, 23 Ohio St. 1; National Cash Register Co. v. Cervone, 76 Ohio St. 12, 20 [80 N. E. 1033]. In the latter case, Spear, J., pronouncing the opinion of the court says:

“Prior to the passage of the conditional sales statutes of May 4, 1885 (82 O. L. 238), the title to property so conditionally sold remained absolutely in the vendor until the purchase price should be fully paid, and he might retake the property, if any part of the purchase money remained due and unpaid, either from the purchaser or any person having possession of it.”

It is thus apparent that the absence of a covenant to that effect from the conditional sale contract in the case before us is quite immaterial.

All the remaining questions in this casé will have been fully disposed of, if we should find that the dryer, etc., were not so annexed to the realty as to become a part of it, and in this behalf we hold with the court below, on the authority of Case Mfg. Co. v. Garven, 45 Ohio St. 289 [13 N. E. 493]. In view of the very full discussion of the law of fixtures in the various reported decisions of the Supreme Court of this state, we deem it unprofitable to enter into an extended discussion of that subject here. Suffice it to say that our re-examination of these authorities, as applied to the facts of this case, satisfy us that there is no error in the record, and hence the judgment below is affirmed.

Winch and Marvin, JJ., concur.


text:
    TRUSTS AND TRUSTEES
    [Cuyahoga (8th) Circuit Court,
    November 16, 1908.]
    Winch, Henry and Marvin, JJ.
    Dorr E. Warner v. J. N. Amor.
    Trust Unenforceable for Uncertainty in Determining Amount of Funds. When evidence discloses that funds in the hands of an assignee are impressed with a trust, but nothing from which the amount of such funds can be determined, the trust is unenforceable.
    Error.

      Dorr E. Warner, for plaintiff in error.

      J. N. Amor and C. N. Sheldon, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted by the assignee for the benefit of the creditors of the Glenville Banking & Trust Co. to reverse the judgment of the court of common pleas in favor of J. N. Amor, in an appeal from the judgment of the court of insolvency of Cuyahoga county.

The facts dedueible from the entire evidence as presented in a bill of exceptions are substantially as follows:

J. N. Amor, one of the directors of the Glenville Banking & Trust Co. opened a special account with that institution August 22, 1907, in which deposits varying in amount from $10 up to $500 were made at frequent intervals from that date forward to November, 1907, when this assignment was made by the bank for its creditors. These deposits were made to the bank by various persons in part payment of lots purchased by them from Amor and others whom he represented in these real estate transactions. The bank, by agreement with Amor, was to have 1% of the sums so collected by it, for its services and the' total amount in this special account, at the time of the assignment was upwards of $2,000.

There passed into the hands of the assignee, as shown by his testimony, an amount which he fails to fix exactly, but which, as we interpret his testimony, he means to say amounted in all to “about $1,000.”

By order of the insolvency court, as shown by the transcript filed in this court, $889.55 of this amount was shortly after-wards paid out by the assignee as a preferred claim. Disregarding the collections since made by the assignee it is thus left wholly uncertain what, if any, part of the sum of “about $1,000” originally received by him was left remaining in his hands, after payment of this preferred claim.

We are asked to hold that this balance is impressible with a trust in Amor’s favor, upon the theory approved by us in the case of Warner v. Urfer, 40 O. C. C. 601 (22 N. S. 59), decided November 4, 1908, to the effect that after commingling trust money with its own the bank’s minimum cash balance thereafter on hand would be deemed to consist, in whole or in part, as the case might be, of cestui que trust’s money, because as between the rightful paying out of the cestui que trust’s money to other persons, the former is presumed.

In the Urfer case we had before us an agreed statement of facts which showed definitely the net amount received by the assignee from the bank, when the assignment was made, but it was further stipulated that Urfer’s money could not be traced in either its original or any substituted form. Hence, we were precluded from drawing the inference that the net amount so received by the assignee had been the minimum amount in the custody of the bank during the entire interval between the creation of the trust in Urfer’s favor, and the date of the assignment.

In the present ease, however, the difficulty is to determine whether any, and if so, what amount of money we delivered by the bank to its assignee and impressible with a trust in Amor’s favor. While we hold that the evidence justifies the finding of the court of common pleas that Amor’s special deposit account constituted a trust fund in the hands of the bank, we fail to find in the bill of exceptions any sufficient evidence to warrant that court in its findings that the assignee received moneys in any definite sum belonging to Amor. For though we are not prepared to say, from the evidence, that as a director, Amor’s knowledge generally of its affairs affected him with notice of its breach of trust, it is nevertheless palpably true that the money collected by the bank for him was indistinguishably intermingled with its other assets. Further discussion of the ease is rendered unnecessary, in view of our opinion filed in the Urfer case, already referred to.

For error in refusing the assignee’s motion for a new trial, upon the ground that the judgment and order of the court of common pleas directing him to prefer and pay the amount of Amor’s claim is not sustained by sufficient evidence, said judgment is reversed and the cause remanded for further proceedings.

Winch and Marvin, JJ., concur.


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    MANDAMUS — TAXES
    [Cuyahoga (8th) Circuit Court,
    November 17, 1908.]
    Winch, Henry and Marvin, JJ.

      State ex rel Wm. L. West v. Robert C. Wright et al.
    1. Holder of Certificate of Tax Sale with Vague Description can not Compel Execution of Tax Deed.
    A certificate of tax sale which described the property sold as being “5-121 A. in forks of road” is so indefinite that any deed made therefor would be void for uncertainty and the court will not do a vain thing by ordering the execution of such a deed.
    2. Mandamus can not be Invoked to Control Discretion of County Auditor Allowing Redemption of Property Sold for Taxes.
    Courts will not attempt to control by mandamus, or set at naught the discretion of the county auditor, when, upon an application of a party claiming an interest in property sold for taxes, he has decided that the party has an interest and allowed him to redeem the property.

      Affirmed no opinion, State v. Wright, 84 Ohio St. 448.

   HENRY, J.

This is a proceeding in mandamus to compel the defendant, Wright, as auditor of Cuyahoga county, to execute and deliver to the relator a deed of land which was purchased by the latter at tax sale, and for which he holds a tax sale certificate. The former owner was a Baptist society which is said to have ceased long ago to exist. A general county organization of the same religious faith is alleged to have interested itself in procuring the redemption of the property from said tax sale, in the name or on behalf of the survivors or successors of the trustees who last held that office in the extinct society. This redemption constitutes the county auditor’s reason for refusing the relator’s demand for a deed. The relator contends that the redemption is void for want of interest in the property on the part of the persons redeeming. .

Upon the defendant’s motion for judgment on the pleadings in this case, we have come to a conclusion in which we all agree so far .as the result is concerned. It is that each of the two objections raised on behalf of the defendant, to granting the relief asked for by the petition, is well taken. One of my brethren agrees with me as to one of the grounds urged, and the other agrees as to the remaining ground. For myself, I am convinced that both grounds are well taken.

Taking them up singly and briefly, the first ground relied on is that the description of the land in the certificate of tax sale is so vague and uncertain, that any deed which we might order the auditor to make, in pursuance of this petition for mandamus, would necessarily be void, and as the court can not undertake to do a vain thing, no writ requiring a worthless deed should issue.

The property is described in this tax certificate as being “5/12 A. in forks of road,” etc.' This description is no better than that in the case of Winkler v. Higgins, 9 Ohio St. 600, which declares the law to be, as laid down in the first paragraph of the syllabus:

“An auditor’s deed upon a sale of lands for delinquent taxes containing only the following description: a ‘tract of land in the county of Scioto, to wit: one-third part of French Grant, lot sixty-six containing seventy-two and a half acres, ’ and made upon a tax certificate containing only the following description: ‘part lot 66, acres 72%’ is void for uncertainty.”

The deed which we should order to be made, if we were to grant the prayer of this petition, would upon the authority of this decision of our Supreme Court, necessarily be void, and the granting of the relief prayed for would amount to self-stultification on the part of the court. State v. McGregor, 44 Ohio St. 628 [10 N. E. 66].

It is not a question whether the defendant has a right to raise the defense he has sought to raise. The plaintiff must recover, if at all, upon the strength of his own petition and not upon the weakness of any defense which may be interposed to it. And whether or not it be true that the auditor is in no situation himself to allege the insufficiency of the description contained in his certificate, it is certainly true that if the relator has alleged a description which is insufficient to give him a valid deed, in case the relief prayed for in his petiton be granted, the court can not grant him that relief, for, in so doing, it would do a vain thing.

Upon the other question, whether mandamus will lie at all, we are of the opinion that an effort is made in this petition, to direct the judgment and control the discretion of the auditor in respect of the action which he has already taken, in cancelling the tax sale and in allowing a redemption.

It is undoubtedly true, under the statutes and decisions in this state, that a person not having an interest of any sort in the land which he seeks to redeem has no right to redeem it from a tax sale. It is therefore incumbent upon the auditor, when an attempt is made to redeem property, to determine whether the applicant has any interest in it. Of course it is not necessary that the applicant shall be the full legal owner; he may be the equitable owner, part owner, or he may have an interest merely by way of lien, reversion, or the life (Plumb v. Robinson, 13 Ohio St. 298). But whatever it be, he must have some interest, in order to make successful application to the auditor for redemption. McMillan v. Robbins, 5 Ohio, 28.

Such application in this case has been passed upon. The determination of the question whether or not the applicant had such interest as entitled him to present his application was devolved by law upon the auditor, and he found that the requisite interest existed.

In this proceeding we are asked to ignore the very right, discretion and duty, vested in the auditor, of cancelling the tax sale upon proper application therefor, and to treat his finding in regard to the redemption as of no account and invalid. The auditor undoubtedly has jurisdiction to entertain an application of that sort and to pass upon it, as he has passed upon it in this instance; and, by mandamus, his judgment in that regard can not now be reviewed. We can not in this proceeding treat’ it as void, nor can we consider evidence to show that the action of the auditor was ill advised. The effect of such action upon our part would be not only to control and direct his judgment and discretion, but to disregard and nullify the same when already exercised and executed.

The statutes authorizing the redemption of land sold for taxes are equitable in their character, and are to be liberally construed. Masterson v. Beasley, 3 Ohio, 301. While the equity of redemption exists, the purchaser at tax sale is vested with no title to the property, but only to the lien of the state for taxes, or in other words to security for the return of his outlay, with interest and penalty State v. Godfrey, 62 Ohio St. 18, 22 [56 N. E. 482], If as in this case such return is made, or made available to him, a redemption, however irregular in other respects, is no invasion of his rights and creates no right of action in his favor by mandamus or otherwise.

Hence we hold that mandamus does not lie under the circumstances of this ease and the petition will therefore be dismissed.

Winch and Marvin, JJ., concur.


author: MARVIN, J.

text:
    JUDGMENTS
    [Cuyahoga (8th) Circuit Court,
    February 17, 1908.]
    Winch, Henry and Marvin, JJ.
    John Bartow v. Walter A. Barrows, Jr.
    Default Judgment not Set Aside on Error, when no Abuse of Discretion is Shown.
    A default judgment rendered after two answers had been stricken from the files, will not be set aside on error where the only claim is that at the time the default was taken defendant did not have accurate information as to what defense he had.
    Error.

      Goulder, Bolding & Masten, for plaintiff in error.

      Freibolin & Byers, for defendant in error.
   MARVIN, J.

The plaintiff in the court below filed his petition in the short form upon a promissory note, which had been signed by the defendant as surety. The note was copied into the petition and an allegation made that no payment had been made upon the note. The original answer admitted the making of the note and alleged in these words: “that he had no knowledge or information as to whether plaintiff is now the owner of said note or whether J. C. Murfey, the maker of said note, has made no payment thereon, and, therefore, denies said allegations. ’ ’

■ For a second defense the allegation was made that .the plaintiff for a valuable consideration agreed with the principal maker of said note to extend the time of its payment for a definite time, and further that the plaintiff agreed with said original maker that if at the time to which the payment of said note was extended, as aforesaid, the stock sold to said original maker (Murfey) by plaintiff and for which said note was given should not be of any value, he would not require payment of said note, and release and discharge the same in that event; and the defendant says that at the time to which said note was extended, as aforesaid, said stock was not of any value whatever. He says that this agreement for extension was without any knowledge or consent on his part.

For a third defense the answer set up that the note was payable at the office of Drake, Bartow & Co., on September 15, 1903, at which time defendant was able and willing to pay said note, and had funds at the office of' said Drake, Bartow & Co. available for the purpose, but that on said date of maturity plaintiff did not make any demand on said defendant or the principal maker for its payment and that no demand by plaintiff upon the defendant for its payment .was made until just- before. the bringing, of this action.

On motion the court struck out all of the second and third defenses,, and allowed time for the amendment of the answer. The defendant then amended his answer, leaving, however, the defense as to the ownership of the note and the making of no payment thereon exactly as in the original answer. The court struck this entire answer from the files, upon a motion charging that the answer was not filed in good faith and was merely frivolous and calculated for the purpose of invoking the process of the court to secure delay. It is charged that there was error in sustaining this motion. We can not examine into the facts upon which the court acted upon this motion for the reason that the bill of exceptions showing the evidence, was not filed within the time provided by law. "When this answer was stricken off the court gave the defendant time to a fixed date to file an answer. That time went by, no answer was filed, and thereupon the judgment was entered for the plaintiff upon default. Later a motion was made by the defendant to set aside the default and allow an answer to be filed. This motion was overruled and error is prosecuted for this action of the court, and the evidence upon which the court acted in refusing to grant the motion is before us. It appears that'the defendant was without accurate knowledge of what defense he had, if he had any, and he says that the reason he failed to file an answer within the time fixed by the court was because his efforts to obtain information upon which he could set out definitely what, if any agreement, was made between the plaintiff and the principal maker of the note were unsuccessful. He attempted to take the deposition of the plaintiff for the purpose of obtaining this information. He followed it up to a point where the plaintiff refused to answer his question. Up to that time the information sought had not been obtained. So far as appears the defendant made no other effort to obtain this information than that which has been stated. It would seem as though he might have made an effort to ascertain from the principal maker of the note what the facts were as to any extension of time, or any failure of consideration, or any payments having been made upon the note.

It is suggested in argument that it was no part of the duty of this defendant to have sought for information from the principal maker of the note, which is of course true. It may be quite probable that he would have met with no better success in taking his deposition than he met with in his effort to take the deposition of the plaintiff, but if he was unable to obtain from anybody the desired information, and so was left without knowledge of what defense he could make, it was his misfortune. The situation seems to be about this: That the deféndant was without knowledge of any facts which would constitute a defense to the suit of the plaintiff, and so far as appears, he was without any definite information on the subject. He believed that there had been an agreement to extend the time of payment; perhaps he believed that something had been paid upon the note, and he may have believed that there was a failure of consideration, but if he was without sufficient information to plead these with some definiteness, it was not the duty of the court to open up a judgment which had been taken on default, for the purpose of permitting the defendant to still further seek for knowledge of these matters which it was essential for him to have before he could make any defense. We do not feel we would be justified in holding that the court abused its discretion in refusing to open up the judgment taken on default, and the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    BANKS AND BANKING — ESTOPPEL—PRINCIPAL AND AGENT
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Winch, Henry and Marvin, JJ.
    Lulu May Toole v. Cleveland Trust Co.
    1. Dealer with Agent must Act In Good Faith Respecting Restriction on Authority.
    It is an obvious limitation upon the liability of the principal that he who deals with the agent must act in good faith, respecting every restriction upon the agent’s authority of which he may have notice.
    2. Bank Estopped to Deny Apparent Authority of Employe Receiving Deposit.
    When a prospective patron goes to the “New Accounts” window in a bank and asks for a certain employe of the bank with whom she is acquainted, and he is called from the rear portion of the bank to the place at the window and there accepts a deposit and issues to her a pass-book of the bank showing that such a deposit has been made by her, the bank is estopped from denying the receipt of the deposit or the authority of the employe to receive it.
    3. Bank Employe Showing Withdrawal of Deposit Misappropriated not Defense to Action for Amount by Depositor.
    The fact that an employe of a bank, who has received from a depositor a sum which he had appropriated to his own use, later makes an entry in the pass-book he had issued the depositor showing the withdrawal of a certain amount which he represents the bank had invested for the depositor, is no defense to the bank in an action by the depositor for the amount of the deposit.
    Error.

      W. D. McTighe and W. B. Neff, for plaintiff in error.

      Kline, Tolies & Goff, for defendant in error.
   MARVIN, J.

The parties stand in the same relation to each other in this court that they did in the court below. The pleadings upon which the action was tried were an amended petition, an amended answer to the amended petition and a reply. The allegations on the part of the plaintiff are: that on February 12, ■ 1903, she, under her then name of Lulu May Blaekmore, opened a savings account with the defendant, which is a banking corporation, and deposited with the defendant on that day the sum of $3,000; that on April 27, 1903, that she further deposited with the bank the sum of $1,000. She admits that payments to the amount of $1,293.60 were made to her, and says that the balance of her said deposits, together with interest, is now due from the bank. The defendant by its amended answer admits the deposit of $1,000 and denies the deposit of the $3,000, and avers further that if any other deposit was made by the plaintiff the same was withdrawn by her. The reply denies the withdrawal of any sum other than that admitted in the petition. Upon these issues the case went to trial to a jury in the court of common pleas, and upon the evidence the court withdrew from the jury all consideration of the question of whether anything was due to the plaintiff by reason of her claim of a deposit of $3,000. The remaining issue was submitted to the jury, and on that a verdict was returned for the plaintiff. The error which the plaintiff claims in this proceeding is the withdrawing from the consideration of the jury all the questions arising in connection with the alleged deposit of $3,000. So as far as this deposit is concerned the only claim made by the plaintiff on the trial was that such deposit was made and that there remained with the bank the sum of $2,000. The real question then which the plaintiff claims should have been submitted to the jury, and which was taken from it by the action of the court, was the question of whether there was in the hands of the bank upon such alleged deposit the said sum of $2,000. On the part of the defendant it is urged that the court was justified in its action upon two propositions. First, that the $3,000 was never deposited. Second, that under the evidence the bank is relieved from liability on account of a withdrawal from it by the authority of the plaintiff of said entire sum. (As has already been said, the plaintiff admitted that $1,000 of the said $3,000 deposited had been withdrawn.) Of course, if either of these propositions is correct, there would be no liability on the part of the defendant to the plaintiff, and if upon the evidence introduced by the plaintiff it could be said, as a matter of law, that the bank was not chargeable for this deposit, or if it could.be said as a matter of law that there had been a withdrawal of this deposit by the plaintiff or her authorized agent, then the court was justified in directing the jury to pay no attention to these issues. The plaintiff testified that on February 12, 1903, she went to the bank carrying with her a check for the amount of .$3,000, for the purpose of depositing it in the bank; that an employe of the bank whom she knew to be a bookkeeper, but further than that she had no knowledge of his special duties in the bank, was a distant relative of hers, and that he had prior to'this time said to her that the best thing to do with her money would be to deposit it in this bank. The name of this employe was Boyd. She says that she went with this check to the window where money is received, and that there was an employe of the bank at this window whom she did not know. She inquired for Mr. Boyd; she says,- however, that Boyd was in the bank, back of the partition in which certain windows are situated and through which business is done. The man at this window, she says, then called Boyd, who came to the window. The man who was in this compartment where this window faced the lobby retired from the compartment or cage as it is sometimes called, or rather he stepped out she says she supposes, she is not able to say certaintly that he did. She told Boyd she had come to make this deposit, and she endorsed the check or draft, handed it through the window to Boyd, who gave her one of the regular pass books of the bank which was numbered 9412. This pass book was introduced in evidence as Plaintiff’s Exhibit A, and containing the regulations of the company in print for the guidance of depositors. On the first page prepared for the keeping of accounts are the printed words “The Cleveland Trust Company. In account with” and then on the opposite page is written the name “Lulu M. Blackmore.” This is in the handwriting of Boyd, so that on opening the book was the heading “The Cleveland Trust Company — In account with Lulu M. Black-more.” These pages are ruled perpendicularly so as to make separate columns, the extreme left-hand column of the page being headed with the word “Date” the next column with the word “Withdrawn,” the third column with the word “deposit,” the fourth column with the word “balance.” In the date column there appears the figures “1903-2-12.” Under the withdrawn column are the figures “3000” and in the balance column the figures “3000” all in the handwriting of Boyd. This book, with the writing indicated, was handed at this window by Boyd to the plaintiff: Thereafter'a considerable number of items are entered under dates in the withdrawn column, and near the bottom of the page appears an entry undated, but beginning at the extreme left hand side of the page in the column under the heading of “Date,” and running over into the column of “Withdrawn” in the handwriting of Boyd; “Pd to investment” and just over the last part of the word “investment” and apparently as a part of' the same entry, áre the figures ‘12000, ’ ’ and in the column of “balance” are the figures “5684.” The balance next before this is “2056.84” so that if $2,000 were withdrawn at this time, the balance appearing upon the book is right. This entry having been made the book was returned by Boyd, as the plaintiff says, to her. Later, appearing under various dates under the heading of “withdrawals” are certain small sums, and in the columns of “balance” these withdrawals up to and including a withdrawal of $9.84 on May 7, 1903, exhaust-the $56.84, which was the balance shown after the withdrawal of the $2,000, and in the column of balance at this date are several ciphers.

Under the facts as claimed by the plaintiff, was the bank chargeable with the $3,000 as a deposit! It is urged that there was not a prima facie case made out against the defendant for such deposit, or that' if there was it was overcome by the undisputed evidence introduced on the part of the defendant that Boyd was not authorized by the bank to receive deposits, and that the same was never entered on any of the boobs of the bank other than the pass boob already mentioned, delivered by Boyd to the plaintiff, nor was the money or check ever in fact received by the bank. No claim is made on the -part of the defendant nor could any claim be made by it that if Boyd was the agent of the bank in receiving this sum it would not be liable for it notwithstanding it was never in fact credited to plaintiff on the books of the' bank, or delivered to it, nor is any claim made but that if the bank had clothed Boyd with the apparent authority to receive this deposit the plaintiff believing that he was so clothed, the bank would not be liable. But, it is urged that Boyd not only was without authority to receive the money but that the bank had not clothed him with any apparent authority to receive it. It is this last proposition which needs consideration here. Boyd was an employe of the bank; his duties were performed back of the partition which separates the part of the room in which the business of the bank is transacted from the lobby, or that part of the room which customers enter, and from which, through the openings in the several windows in the partition they pass money to those within, for deposit or payment of indebtedness. He was not at the window at which money is received when the plaintiff came up to that window; another man was there. She asked for Boyd. The man who was at the window presumably was authorized to receive deposits. He called Boyd at her request. Boyd came in to the compartment. Either the man who was in that compartment and called Boyd remained there and presumably saw what Boyd did, or, which is probably the case, he retired from the compartment, apparently leaving Boyd in charge of it, leaving the books which thé bank issued to depositors there where Boyd could use them. He knew that the thing ordinarily done by people who came to that window was to deposit money there with and receive these pass books. He was not likely to have left that window and that compartment with Boyd there upon the supposition that this plaintiff desired to visit with Boyd. It was not a place at which he could have supposed that she expected to visit with Boyd or to do any business with him other than that connected with the bank. Knowing this, he apparently left Boyd in charge of this compartment. Boyd, as the plaintiff says, while there was apparently in charge of this compartment to receive this money. It is possible that because she called for Boyd and he came here into that room and was left there by the proper agent of the bank, apparently in charge of it, that the bank can say that she had no right to assume that he was authorized to do the business which was ordinarily done at that window, and which he who thus left Boyd in the compartment, knew was the only proper business to do at this window? A majority of the court think not. (Judge Henry dissents from this proposition.)

Certainly, the plaintiff’s ease would not be stronger than it now is if Boyd had there said to her that his duties were to receive deposits at that window, for his agency could not be shown by any declaration of his. Suppose that a half dozen clerks in the bank other than the man whose duty it was to receive deposits at that window, had assured her that Boyd was authorized to receive money at the window here, the case would be no stronger than it now is, because she could not rely upon the declarations of these unauthorized men to fix the duties of Boyd or the scope of his agency. Suppose that before she made her deposit but after Boyd came into the compartment, another party had stepped up to this window and handed money to Boyd for a deposit and he had received it, and had given to the party so depositing one of the pass books of the bank with the entry of the deposit made upon it, it would seem certain that the bank would be held for that deposit, for the reason that Boyd, was there in charge or apparently in charge of the compartment-where deposits were properly made. Suppose immediately after this, the plaintiff had delivered her money to Boyd as a deposit and he had given her the pass book which he did give her, would the fact that Boyd had been called at her request into the room by the man in charge of it, and left apparently in charge, so distinguish her case from that of the other depositor that it could be said in the one case the bank was bound and in the other it was not bound?

Suppose that instead of going to the window of the receiving agent for the purpose of making a deposit, she had gone to the window of the paying teller for the purpose of obtaining money upon this' check or draft which she had, she had asked for Boyd, the paying teller had called him, left the compartment allowing Boyd to go in to transact whatever business there was to be transacted with her, that he had left the money drawers open in such wise that they were easily accessible to Boyd, and the plaintiff had asked Boyd to cash this check or draft which she had, she first having endorsed it in blank, and he had thereupon taken the money of the bank thus left under his control and had handed to her the amount of her check or draft, to wit, $3,-000, and instead of putting the check or draft in the proper place in the bank he had put it in his own pocketbook and had obtained money on it at some other place and absconded with the money, could the bank have recovered from her the money so delivered to her by Boyd? Certainly if that money was so paid to her by one who had no authority to pay it, and had no apparent authority, that is one not apparently clothed by the bank' with authority thus to use its money, the bank could have recovered it from her, but in the case supposed it seems clear that there could have been no recovery by the bank against her. We see no reason why the apparent authority to Boyd in the case supposed differs in any wise from the apparent authority of Boyd under the testimony of the plaintiff.

Suppose that a customer goes into a store in this city in which he knows that John Doe is an employe, but does not know what his duties are; John Doe is the only employe with whom the customer has any acquaintance. He wishes to purchase a coat. He inquires of the man in charge of the coat counter in the store for John Doe. That man calls John Doe and himself leaves the counter, so that he does not see what thereafter takes place. The customer tells John Doe what he wants, he buys the coat of him. It is worth $20. He hands the $20 to John Doe, who puts it in his pocket, and never reports to his employer, but he does report the sale. The merchant makes demand upon the. customer later for payment of the $20. The answer is: I paid the $20 to the man who sold me the coat in your store. But, the merchant replies: That man had no authority to sell you a coat nor to collect pay for it. You went to the proper counter where coats were on sale and did not ask of the man in charge of that counter to sell you-a coat, but you asked him to call John Doe. He called him and left the counter and John Doe sold you the coat and took the pay for it. Is it possible that the customer would be liable for the payment of the $20 ? Although as a matter of fact the selling of coats was no part of the duties of John Doe.

In the case of General Cartage & Storage Co. v. Cox, 74 Ohio St. 284 [78 N. E. 371; 113 Am. St. 959], there is a discussion of the question of how far one may presume that an agent who assumes to perform a certain duty is authorized to perform such duty. The facts in the case were that Cox went to the place of business of the storage company, whose business was. the storing of goods, to have his goods taken from his home and stored in the warehouse of the company. He asked for the manager. One Smith came forward who was apparently the man in charge. There was nobody else but Smith in authority, and as a matter of fact Smith was authorized to receive goods for storage. The company advertised that not only did it store goods but it insured them, where the owner of the goods so stored desired it. Smith had no authority to contract for such insurance but being in apparent charge of the business he did arrange with the party who stored the goods to have them insured. He failed to make the insurance. The goods- were destroyed by fire. It was held that the neglect to insure was the neglect of the storage company. In the course of the opinion Judge Shauck, at page 293 uses this language:

“The company fixed the character of its business and employed Smith in the capacity in which he was presented to those who appeared in response to its invitation to the' public to store goods with it for hire. It was not an employment of a transient character or to represent it in the conduct of an isolated transaction, but in the general conduct of a business of established and defined character and scope. * * *
“It is to the relation into which the parties were thus brought by the express and confessedly authorized contract of bailment in connection with the facts found in the statement of the case that we are to apply the rules of law respecting the apparent authority of an agent. A correct statement of the matured view of that subject will show that it does not have exclusive regard to the immunity of the principal without consideration of the rights of those who accept his invitation to enter into contract relations with him. That view is comprehensively and accurately stated in Johnston v. Milwaukee & Wyoming Inv. Co. 46 Neb., 480 [64 N. W. 1100]:
“ ‘Where a principal has by his voluntary act placed an agent in such a situation that a person of ordinary prudence, conversant with business usages, and the nature of the particular business, is justified in assuming that such agent is authorized to perform on behalf of his principal a particular act, such particular act having been performed the principal is estopped as against such innocent third person from denying the agent’s authority to perform it. ’•
“It is an obvious limitation upon the liability of the principal that he who deals with the agent must act in good faith, respecting every restriction upon the agent’s authority of which he may have notice. ’ ’

In the case of the Cincinnati, N. O. & T. P. Ry. v. Citizens’ Natl. Bank, 56 Ohio St. 351 [47 N. E. 249; 43 L. R. A. 777], this question is discussed to some extent. In that case certain certificates of stock of a corporation, properly signed and sealed, were left in the care of an agent of the company, who fraudulently issued them, and it was held that the parties receiving the stock thus issued, were to be protected. Judge Minshall at page 383 uses this language:

“The general rule is that a corporation, like a natural person, is liable for the negligence of its agents causing the injury to others where the act done is within the scope of their agency, whether the act be one of omission or commission. ’ ’

This is equally true where the act done was within the apparent exercise of the authority of the employee.

In the ease of Munn v. Burch, 25 Ill. 35, it is said in the syllabus:

“The public are not bound to inquire into the special instructions which the officers or servants of a bank may have received, as to the manner in which their duties are to be performed.”

In the case of the Manhattan Co. v. Lydig, 4 Johnson (New York), 377 [4 Am. Dec. 289], it was held that, where a party placed money in the hands of the bookkeeper of a bank for the purpose of having him make a deposit for the owner of the money the bank was not liable. In this case one Brower was a bookkeeper in the bank. The depositor often handed him money outside of the bank for the purpose of having him deposit it, and Brower actually entered a deposit in the ledger of the bank but he made no entry in the cash boob, nor did he ever, in fact, deposit the money, and it is held that the bank was not liable, but the court on page 388 uses this language:

“Brower was the servant of the plaintiffs, when in their employ, and in their office; and for acts there done the plaintiffs (the bank) are answerable.”

In the case of East River National Bank v. Gove, 57 New York, 597, this language is used in the syllabus:

“Where one pays a debt due by him to a bank upon the demand of an officer thereof, whom he finds- employed in its business, to said officer, over its counter, without knowledge that the officer’s authority is so limited that he is not authorized to receive the money, it is a payment to the bank and the latter is bound thereby.
“Plaintiff, to the knowledge of defendant, a customer, employed in its bank a paying and receiving teller, the general duty of the latter being to receive moneys paid or deposited. In his absence other officers or clerks acted in his place. Defendant having overdrawn his account by mistake, received a letter from the paying teller requesting him to call. He went to the paying teller at the bank and at his request paid him over the counter the amount required to rectify the error; this was not entered on the books of the bank. It did not appear that the receiving teller was in the bank.”

And at page 601, Judge Earl uses this language, in the opinion:

“The defendant went to the bank, he found behind the counter the paying teller who asked him to pay a demand the bank had against him, and he then paid it. It would be a very inconvenient and unreasonable rule to hold that a bank was not bound by such payment. If this payment was not binding upon the bank, it would not have been if Yan Orden had declared to the defendant that he was authorized to receive it; and if every clerk then in the bank except the cashier had, upon the inquiry of the defendant, made the same declaration. If he had gone to the bank to pay a note and the paying teller had gone to the vault and got the note, taken the money and surrendered up the note upon the same principal such a payment would not have bound the bank. Banks must be held responsible for the conduct of their officers within the scope of their apparent authority. When one goes into a bank and finds behind the counter one of its officers employed in its business, and upon his demand pays a debt due the bank in good faith, without any knowledge that the officers authority is so limited that he has no right to receive it, he must be protected and the bank must be bound by the payment:”

These authorities and considerations lead a majority of the court to the conclusion that under the evidence introduced by the plaintiff, a case was made to hold the bank for the deposit.

There remains for consideration the question whether the bank has been relieved from the obligation which we find it assumed when this pass book was delivered by Boyd to the plaintiff. It should' be said in this connection that the several withdrawals entered in the pass book, other than the $2,000, were actually paid by the hand of Boyd, either to the plaintiff or those authorized by her to receive it. Presumably these payments were made out of Boyd’s own money, though the plaintiff supposed they were paid out of the money of the bank, so that there can not be said to have been any ratification of Boyd’s act in taking the $3,000 because of any credits upon it or payments made thereafter when it was so deposited. Presumably the bank had no knowledge of these payments.

If the bank has been released from its obligation to pay the $2,000, it has been so released by some act of the plaintiff. The testimony of the plaintiff was, that Boyd said to her that the bank would invest her money with its own in such wise that she would receive a large per cent, upon it. Her testimony showed that each time a withdrawal was entered by Boyd he handed the book back to her, and that she understood the figures under the “withdrawal” column indicated that she had withdrawn the amount represented by such figures, and that there remained the balance that was represented by the figures in the balance column. So that when Boyd made the entry “Pd. to investment 2000 ’ ’ and passed the book back to her the balance showed that the $2,000 had been deducted from the amount theretofore shown to be a balance, and was understood by her as meaning that there was stili a balance uninvested of $56.84. But she says, that she understood that the $2,000 indicated in the entry, was invested by the bank. Her testimony shows that she had no very distinct idea of what was to be done, but in some way she understood that through the bank her money to the extent of $2,000, would be invested in some very profitable or large dividend paying investment. It appears that for sometime after this entry, .Boyd paid her on the first day of each month, $30, representing to her that this was the dividend upon her invested $2,000. So far as it appears from the evidence, however, nobody did make any investment of the $2,000, certainly, the bank made no such investment of it, nor did Boyd. When fairly considered, her testimony is that Boyd was not authorized alone to make any such investment for her.

If the bank is to escape liability here on the ground of the withdrawal of the $2,000, it escapes not because of any payment it ever made, not because of any investment it ever made, and not because of any payment or investment it ever made, to or for the plaintiff by Boyd, or anybody else. Though the bank is chargeable with this money it never had it, and it never paid it out either to the plaintiff or anybody else. It appears that later the plaintiff said to Boyd that she had no evidence of any investment that had been made of this $2,000, whereupon he made an entry in.another pass book which the trust company had issued, to the plaintiff, in the deposit column of $2,000. This under date of January 4, 1904. This, however, as we view it, neither increased nor lessened the responsibility of the defendant to the plaintiff. We think the testimony of the plaintiff was such that, if believed, a jury would have been justified in finding that the plaintiff had never received for investment by herself, or by anybody authorized to act for her, the $2,000, nor had she done anything to estop herself from claiming that the amount was still owing to her, except that the same had been reduced by the $30 per month payments, which, as has already been said, Boyd had made to her.

The result is that the judgment of the court of common pleas is reversed for error in directing the jury to disregard entirely any claim founded upon the three thousand dollars deposit.

Judge Henry dissents from this judgment of reversal though he concurs in the.proposition that the evidence of withdrawals did not justify the court in taking this issue from the jury, but that the evidence did not show that the bank was ever liable for the money, evidenced by this entry of $3,000 in the pass book.

Winch, J., concurs.

Henry, J., dissents.


text:
    MASTER AND SERVANT
    ICuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Winch, Henry and Marvin, JJ.

      Louis J. Dominick v. Stowe-Fuller Co.
    Employe Injured while Removing Cement from Pile.
    It is not negligence on the part of an employer to pile sacks of cement in two stable piles and fill in the space between the two piles with other sacks not so securely piled, and an employe who aids in removing the sacks from one of the retaining piles and thus allows the other sacks to fall upon him has no cause of action.
    Error.

      Eerruish <& Eerruish and Bemis & Calfee, for plaintiff in error.

      Henry & Couse and George S. Eain, for defendant in error.

      Affirmed no opinion, Dominick v. Stowe-Fuller Co., 83 Ohio St. 464.

   MARVIN, J.

Dominick was employed by the defendant, which is a corporation, in its place of business in this city. He commenced work on May 16, 1901. He had been working but a few minutes when he was injured, and because of the injuries he then received he brought suit. He seems to have arranged with the defendant beforehand that he would begin work for them' on the day named. On that morning he went to their place of business; he found the foreman or man in charge at the office end of the building and made the inquiry which was made by one in the first century of our era, as we find it recorded in Holy Writ: “What would’st thou have me to do?” He was told in answer to this, to go out into the building and there where there was a large number of sacks of cement piled, he should assist the men already there in removing these sacks from the piles and place them in wagons to be hauled away. He reached the place where the sacks were piled a few minutes before the time to begin work; at the proper time he, and two other men who were engaged in the same work, commenced to remove the sacks and put them upon the wagon. The plaintiff had taken two sacks from the pile and placed them on the wagon, and as he was stooping down to pick up the third some sacks in a pile adjacent to the pile at which he was at work fell upon him and injured him, to recover damages for which he brought suit, alleging that the defendant was guilty of negligence which was the direct cause of his. injuries; he says that he was in no wise negligent. The defendant answers admitting that it is a corporation, that the plaintiff was in its employ, that he was injured, but denies all negligence on its part and avers negligence on the part of the plaintiff directly contributing to the injury. Plaintiff says the negligence of the defendant consisted in the fact that the pile of sacks was so carelessly and imperfectly constructed, with a view to safety, that said fall was unavoidable, and that said pile was so as aforesaid carelessly constructed under the direction of the defendant’s agents, and by its servants, that the officers of said defendant had knowledge of its unsafe and dangerous construction, or ought to have had knowledge thereof.

At the close of the plaintiff’s evidence, the court directed a verdict for the defendant, by reason of which the plaintiff says that error has been committed to his prejudice. The bill of exceptions is therefore before us containing all the proceedings in the court below. From this we learn that in the conduct of the business of the defendant, it had caused two large piles of sacks of cement, each of which weighed about 100 pounds, to-be put up, the two piles parallel to each, other, and consisting of layers of sacks, the alternate layers being at right angles with each other; that is to say, sacks sufficient for the lower layer of the pile were laid down side by side, the next layer consisting of sacks laid side'by side at right angles with those of the first layer and so on alternately until the piles were about six feet high. These sacks were about three feet long, about a foot wide, and were to some degree flattened on the top and bottom by laying probably in the position in which they were piled; they were six or eight inches through from top to bottom as they lay upon the piles.

These two piles were about two feet apart, that is, there was originally a vacant space of about two feet wide between the two piles which have been described. After these had been completed the defendant caused another pile of sacks to be laid in between those two piles. In this last pile spoken of the sacks were all laid in one direction, that is to say, the sacks on the second layer were parallel with the sacks on the first layer, and so on all the way up, this pile being as high as the other two piles. Before the plaintiff went to work a part of the sacks on one of the original piles had been removed, leaving the third pile still standing to its full height. The plaintiff and the other two men went to work taking sacks from this original pile from which sacks had already been taken, and as has already been said, when the plaintiff bent over to pick up his third sack, the sacks on the pile which was laid between the two original piles fell over upon him and hurt him. We are unable to concur in the claim on the part of the plaintiff that there was negligence on the part of the defendant in piling the sacks of the third pile, because so long as the two original piles stood the third pile was safe from falling; nor can we understand that it was negligent on the part of the defendant to have these piles removed. It is said, however, that it was negligent to remove one of the original piles, leaving the sacks in the third pile unsupported. If that is so, it would seem to be rather the negligence of those who were removing the sacks than of the defendant. It does not appear that the plaintiff was ordered to remove the sacks from this intermediate pile. He went out to where the work was; it was seven o ’clock in the morning in May and it was light enough for him to see the situation without difficulty, if he made any effort to see. He commenced work where the other men were working, 'and it is said that he had no knowledge that this third pile, a part of which fell over upon him, was piled differently from the pile from which he was taking sacks, but the pile was there in his plain sight. If, by reason of being piled as it was, it was dangerous, the slightest examination or glance indeed would have shown the different manner in which the sacks were piled and would have suggested to a cautious man that the better thing to do would be to take sacks from the pile rather than from the other. So far as appears, the only direction to the plaintiff was to help the other employees remove the sacks and put them in the wagon. Doubtless it would have been the wiser thing to take the sacks from the third or intermediate pile before taking down so many from this supporting pile, so to speak, rather than to leave a considerable height of the third pile unsupported as appears to have been done in this case. So far as it appears the workmen had their choice about this. They saw fit to do as they did. "We discover no negligence on the part of the defendant in this respect. The plaintiff testifies that he was accustomed to pile sacks of a similar kind in a nearby place of business; but even if he had not been, it would seem that a novice knowing something of the laws of gravitation would have realized that that third pile of sacks might fall if the sacks at its side were taken away.

We are not prepared to say that there was necessarily negligence on the part of the plaintiff, but we feel that there was no negligence on.the part of the defendant, and that being so there was no error on the part of the court in directing a verdict for the defendant..

It is urged further on the part of the plaintiff that the court erred in refusing its offer to pile in the court room sacks of this cement like those which were being handled by the plaintiff at the time of the accident and pile them in the way in which they were piled in the third pile. This the court declined to do. Viewing the case as we do, no prejudice came to the plaintiff by this refusal of the court, for a description of the way in which the sacks were piled must have given them a clear idea of the situation, and if the piling of the sacks would have tended to show by looking at them that they were likely to fall, then the plaintiff having an opportunity to look at them at the time he was engaged in the work, himself knew of their liability to fall as well as the jury could know by seeing them piled up in the same way. We fin‘d no error, therefore, in the action of the court in refusing to allow the sacks to be piled in the court room as requested by the plaintiff and the judgment is affirmed.

Winch and Henry, JJ., concur.