author: MARVIN, J.

text:
    (Eighth Circuit—Lorain Co., O., Circuit Court
    May Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    LORAIN STREET RAILWAY COMPANY v. CATHERINE SINNING.

      Appropriation of land for street railway — Compensation for land taken, and damages to remaining land — Rules—
    (1). Where in proceedings to fix the compensation to a land owner for‘land taken for a street railroad and for damages to his remaining land, a witness has on cross-examination been made to answer as to a very low sale of land in that neighborhood, it is proper to ask him on re-examination as to an exceptionally high priced sale of land in the neighborhood.
    2). The general rule in such cases is that no deductions for benefits from the damages to the remaining land can be made, until it affirmatively appears that a given case comes within some exception to this rule.
    (3). The' true measure of damages to the remaining land is its value before and after the taking of the strip for railroad purposes.
    (4). The elements of compensation are, (1), The abstract value of the land taken; (2), The value arising from the relative situation of the land taken in connection with the remaining land of the landowner; (3), The effect upon the value of the residue on the owner’s land, arising from the use for which the appropriation is made.
   MARVIN, J.

This is a case pending here upon a petition filed by the Lorain Street Railway Company against Catherine Sinning to reverse the judgment of the court of common pleas and of the probate court of this county. The action was originally brought in the probate court of this county by the Lorain. Street Railway Company to appropriate and have damages .assessed for the appropriation of certain lands owned by the defendant, to be used for the purpose of an electric railway.

And after the statutory proceedings were had, preliminary tc the assessment of the damages by the probate court, a jury was called and the question of the damages to be assessed after the appropriation, tried to that jury in that court. That action proceeded to a verdict, the jury found a certain amount as the value of the property appropriated, and a certain amount as the damages to the adjacent property of the defendant, Sinning, and judgment was entered upon .such verdict; that was affirmed by the court of common pleas, in a proceeding in error in that court, and it is to reverse these judgments that this case is prosecuted here.

It is complained on the part of the plaintiff in error that the probate court erred in the admission of certain testimony. and attention is called to the fourth page of the bill of exceptions as the first place in which there is such error. Charles Sinning was upon the witness stand, the husband of the defendant,and he was asked this question: I ought,however, to say that prior to the question w'hich I am about to read, he had testified as to what the land of Catharine Sinning was worth per acre as he believed, and then was asked, with a view to getting his judgment as to what should be deducted by reason of the construction of the street railroad: '‘How muoh would it be worth per acre after the improvement, that is to sa.y how muoh would this land of Catherine Sinning’s, upon which you have given a value as it .now is, be worth por acre after the improvement?” To-this question objection was made by the plaintiff, which was overruled. The ground of the objection was, that to permit him to answer that question was to get to 'the jury an estimate of the damages without any deduction on account of any benefits, and that this might be a case in which there should be, in considering the damage to the property not taken, but adjacent to that taken, certain deductions on ae-ccut of benefits. Later on I shall say something which I do not now deem necessary to say as to this question.

It seems to us that whatever the fact may be as to this being a case in which there may be deductions on account of benefits, that is to say, deductions from the amount to be assessed for injury to the premises not taken on account of benefits to such premises, that it would be proper to ask this question. The general rule is, that no deductions from the damages to be assessed for the injury to the premises not taken are to be made on account of any benefits, and until it affirmatively appears that a given case comes within some exception to that rule,it is proper to ask questions upon the assumption that the case is within the general rule allowing no deductions for benefits. With this understanding of the law, we find no error in the ruling of the court permitting the question to be answered.

Later on in the trial, Lewis D. Boynton was upon the stand as a witness for the defendant Sinning, and having qualified and testified as to what he considered the land of Mrs. Sinning to b« worth before the improvement, he was asked by counsel for the defendant this question: “Now, Mr. Boynton, after this railroad is constructed through there.- at an angle of seventy-one feet from a right angle, trolley wire for propelling the cars, strip sixtv-six feet in width, what would be the fair market value of the farm then

r acre?” He was premitted to answer. The next question asked of him was: “What value would you place upon the land to be taken?’ Objection was made to both of these questions. We think the first question was entirely proper. We are unable to understand what serious objection could be made to it. Certainly the laud owner was entitled to have, from a witness who was qualified to answer, his judgment as to what the premises adjacent to those to be taken were worth, both before and after the appropriation of the strip to be taken.

The second question, “What value would you place upon the land to be taken,” was not answered, and hence, whatever may be said as to the propriety of asking the question, neither party was prejudiced by its being asked; but, objection having been made to that question, this question was immediately asked of the witness: “Whatis the fair market value of the land sought to be taken?” This question he was permitted to answer. We see no reason why he ought not to have been permitted to answer. He seems to have properly'qualified as to a knowledge of the value of such lands, and, having thus qualified, it was entirely proper that he should be permitted to state what the fair market value of this land sought to be taken was.

Later on, Thomas Negus was upon the stand as a witness for the defendant, Sinning. He had been examined by counsel for Sinning and cross-examined by counsel for the railway company,and was now undergoing a re-direct examination by counsel for Sinning. In his direct examination he had been asked as to his knowledge of sales of land in the vicinity, and had given his estimate of the value of the adjoining land of Sinning, both before and after the building of the proposed railroad. Then, upon cross-examination, he had been asked if he had heard of land in that vicinity being sold for forty dollars an acre, and whether he knew of land thereabouts having been sold for one hundred dollars an acre, and then, upon his redirect examination he was asked this question: ‘‘You were asked what ycu have heard about the market value of lands; had you heard of the company buying three acres of Mr. Carlin for nine hundred dollars?” This question was objected to by counsel for the railway company, the objection was overruled, and an exception taken. Now, it is urged as against this ruling, that the fact that there had been a cross-examination in which the witness had been asked if he knew that lands thereabouts had been sold for one hundred dollars an acre and for forty dollars an acre, did not justify the asking of this question, upon re-direct examination, while, on the other hand, it is urged that this question was but a fair re-direct examination. We are cited by counsel for the defendant in error to the case of Shattuck v. Stoneham Branch R. R., found in the 6th Allen, beginning at page 115, and also to the last volume cf Rice on Evidence, p. 604.

The case in 6th Allen, we think, is not near enough like this case to afford us very much light. The citation from Rice is a discussion of what the purpose and office of the re-examination of a witness is, but we do net think that this last authority named justifies this question, and yet we are. not satisfied that there was such error in allowing it to be answered as would justify a reversal on that ground.

It was treading very close upon dangerous ground, if not clear up tc the danger line, but we have decided that the case should not be reversed because of that. There eeems to us to be reason for saying that an injustice might be done the land owner if the attention of a witness, who has tsti-fied as to the value of land, is upon cross-examination especially called to sales of land in the vicinity made at a very low 'figure, if upon re-examination the attention of the same witness might not be called to sales made at a high figure. Upon direct-examination the witness gives his judgment as to the value of the land. The questions suggested, put upon cross-examination, are with a view to satisfying the jury that the estimate of value made by the witness is too high, and, if he might not upon re-examination have his attention called to sales of land which had been made at a higher figure, the impresssion might be left with the jury that he had nothing upon which to base his estimate, except these sales at a low figure, and that his estimate was therefore too high.

So long as the plaintiff had introduced no evidence that this was a case in which there might be an exception to the general rule foibidding deduction on aooount of benefits, we think it was entirely proper to ask as to the value cf the land after the construction of the railroad, “without any deduction on acount of any possible benefits,” even if it should'turn out, when the evidence of the plaintiff should be introduced,’that this was a case in which benefits might be offset against injuries.

This same witness was also asked and answered as follows:

“Q. Taking it in relation to the other-land, its situation, how much would you consider that strip of land worth Nits fair market value? (Referring to the land appropriated.)
‘A. I could not put it any more than the other, because there is that much less.”
“Q. Taking it in its relation with the balance of the farm?”'
“A. It goes across, I expect, the best part of the farm, not exactly the same acres each side.”
“Q. In giving he figures $150, what do you include?”
“A. Between the fences.”
“Q. In making up your estimate, what do you include?”
“~A. I put that at $200. I think if I owned land there I should be satisfied with $200 per are, if it was my property. What I say is conscientiously what I believe.”

A motion was made to have this taken from the jury, and that motion was overruled. We all know how difficult it is to make a witness understand just what he should answer as to value, and he is very likely to say “I make it so much,” when he means that such estimate is his judgment as to the value of the land; and surely his adding, ‘I think, if I owned land there, I should be satisfied with $200 per acre, if it was my property, ” is not prejudicial to the railway company.

An objection was made and overruled,and exception taken to the testimony of one Fleming, but it raises the same question which has already been disposed of in speaking of' the testimony of other witnesses as tc estimating the value of the land not taken, after the construction of the railroad, without any deduction on account of benefits.

When the plaintiff came to introduce its evidence, it called as a witness as to the value of the property, S. P. Rawson, and he being under cross-examination,was asked as to the depreciation in value of the property by reason of the construction cf the railroad, without allowing anything for benefits. In his direct examination he had testified as to the value of the premises before and after the construction of the railroad, and had talked about the diminution in such value by reason of the construction of the railroad, as witnesses are very likely tc do, and it is almost impossible to prevent witnesses in such a case from telling the difference in value, instead of simply giving the value before and the value after the construction of the road.

The questions and answers upon cross-examination, to which attention is called, were as follows:

‘‘Q. Now, leaving out of it entirely what benefits the railroad may have upon the land, leaving that all out, jugt as if it gave no benefits at all to Mr. Sinning, what would you say the market value would be after the appropriation?” A. ‘‘You mean without any railways?”
‘‘Q. Without any benefits whatever, the market value.”
‘‘A. I do not think it ought to diminish it over five dollars an acre, perhaps.”
‘‘Q In what would the depreciation consist?”

It will be seen, that, if what has already been said in relation to the testimony of the defendant’s witnesses is right,the questions here were entirely proper. It is true the witness answered giving his estimate as to the diminution in the value of the land. That answer was given, however, to an entirely proper question,and it does not seem to us that the answer given could prejudice the plaintiff. Had the witness been further questioned, there can be little doubt that he would have given such a value to the premises after the construction of the road as, subtracted from the value which he had given before the construction of the road, would have made the difference of five dollars which he gave as his estimate of the diminution in value. We do not feel justified in reversing the case on account of the ruling of the court on the testimony of this witness.

Mr. Osgood, a witness for the plaintiff, was asked in cross-examination whether the railroad would injure the farm. We think there was no error in the court allowing that question to be answered.

Mr. T. M. Brush was introduced as a witness by the railway company, and was asked by counsel for the company as to what the farm would be worth, after the railroad was constructed. To that, objection was made by the defendant. The ccürt explained to the witness and the parties that the witness might answer, excluding benefits. He was not allowed to answer the question without excluding benefits. Having examined the entire record in this case with care, we are satisfied that it is not a case in which any benefits could have been deducted from he injuries to the property, and, that being so, there was no error to the prejudice of the plaintiff in error in the ruling of the court upon this question.

Complaint is made as to the charge of the court. The first objection made is as to what the court said on page 89 of the record. It is as follows:

“Where a piece cf land is taken and severed by the appropriation from its connection with the other land of the owner, some elements of compensaticn necessarily enter into the computation besides the abstract value of the number cf feet or acres of ground taken. These elements of compensation may be comprehended in the following:
First — The abstract value of the land taken.
Second — ‘The value arising from the relative situation of the land taken in connection with the residue of the owner’s land from which it is taken.
Third — The effect upon the value of the residue of the owner’s land arising from the use for which the appropriation is made.
“The defendant is entitled to a verdict for the value of the land taken, not simply to such sum as the land would bring at forced sale, or under peculiar circumstances, but to' such sum as the property is worth in the market (that is, to. persons generally, if those desiring to purchase were found who were willing to pay its iust and full value).”

I will first consider these three elements that the court said to the jury should be taken into account. It is urged that if these instructions are followed, the result will be that the land owner will receive compensation twice for the-injury to the land not taken; beoause, after the jury has allowed for the abstract value of the land taken, if then the jury are to take into account the value arising to the land taken from its relative situation to the owner’s land from whioh it is taken; and then again the effect upon the valae of the residue of the land from which the appropriation is-made; that the jury will be authorized to give twice — I do not mean necessarily twice in amount — but I mean the claim is that they will have a right at two different times- and under two different heads, to fix the damages to be assessed for injury to the land not taken.

1 am not sure that the probate court in giving his instruction occupied the exact language of the supreme court of Ohio, used in the case of the Cleveland and Pittsburgh R. R. Co. v. Ball, as found on page 576 of the 5th Ohio State Reports; but certainly, if it did not copy exactly the language there used, it followed very nearly the language, and certainly followed the spirit of what is there said.

The reason, as it seems to me, is that these parties are-entitled to the abstract value of the land taken. That land may be half an acre of land cff the back part of one’s farm,, 'and this land being away from any highway might be worth very little sold by itself, but yet,when taken in connection with its relation to the residue of the owner’s land,it might be worth just as much per acre as the balance of the farm; that is to say, you have a farm worth $100 an acre taken as a whole, and take out one-half acre of it, which is just as good as the rest, but take it off the back end of the farm, away from any higwhay,and that would not sell by itself at the same rate, but in estimating its value in a case like this the land owner should be paid in full for just what that one-half acre would be worth, and what it was worth taken with the farm, and that is all there is contained in this second paragraph. The supreme court has fixed this rule, and I think the probate oourt here clearly followed the rule laid down by the supreme court.

I call attention to certain language of the court whioh is not complained of, in connection with the balance of the charge, with a view to determine whether the charge of the court as a whole was prejudicial to this plaintiff in error. On page 90 the court used this language:

“After ascertaining the value of the property taken, you should next ascertain the depreciation, if any there be, .in the value of the remainder of the defendant’s land by reason •of the appropriation of the strip described in the petition. If you find the value of the remaining portion of the land is not diminished by reason of the appropriation, it will only be your duty tc give defendant the value cf the land appropriated; but if you find the remainder of the land is depreciated in value by reason of the appropriation, you should then inquire into the amount of such depreciation in dollars and cents.” And follows with this-language: “To ascertain this, your first duty will be to find the market value of this property, that is, the value before this strip was taken off; and then find the market value of the property after the appropriation, and the difference will be the damages to the property for which the defendant is entitled to recover. The defendant having the right to use or sell this property for any legitimate purpose, you may consider what effect the taking of this property, the manner of its.use, will have upon the balance of the land. Will the property be less sale-able in the market and rendered less valuable thereby? The difference in the value of the owner’s property with the appropriation and that without it, is the rule of compensation. This difference must be ascertained with reference to the value of the property in view of its present character, situation and surroundings. It must not be enhanced by proving facts of a contingent or prospective character.’

Now, that is fully as favorable as the plaintiff could ask to have a charge, and taken in connection with the other, it seems to me gives the jury such instructions, if they were followed, as that they could not make any mistake, prejudicial to the plaintiff,as to what their findings should be.

The plaintiff requested the court to instruct the jury as follows:' “If the jury should find that any incidental damages will accrue to the lands of the defendant not appropriated, the jury should take into consideration and estimate any Jooal incidental benefits that will accrue to the defendant from the construction of the work proposed, not common to the public at large, and the amount of such incidental benefits should be deducted from the amount of such incidental damages.”

This the ccurt refused to give. It is not worth while to take time here, to oail attention to the case of R. R. Co. v. Ball, in the 5th of the State Reports. It is familiar to counsel on both sides of this case, and to the bar generally. The reasoning there is that, while there are to be no deductions from the value of the land taken by reason of any benefits that will accrue to the owner, yet there may be local incidental benefits, peculiar to the land owner — that is, which the land owner will derive from the improvement, and which the public generally will not derive — which may be deducted from the local incidental damage to the lands of the land owner which are not appropriated — that is, local incidental, peculiar benefits which will accrue to the land owner cannot be deducted from the value of the land taken, but may be deducted from the incidental damages to other lands, which the land owner will suffer by reason of the appropriation.

In that case there was a coal mine, and coal had been conveyed to market by a river, and they built a railroad. The question was asked whether the facilities for getting coal to market would be any less, and it was held it was proper to have asked that question; but as I have said, I have read this record, and I do not see anything in it to justify that' charge. I do not see anything in the record tending to show local peculiar benefits to this defendant, Sinning, not common to the public. She is entitled to the benefits, as are the entire public, in having the railroad through there.

This question was also made:

“If the jury find that the incidental benefits arising to the defendant, Sinning, are equal to, or exceed, any incidental damages which may accrue by reason of this appropriation, to her lands not appropriated, then no amount should be awarded her as damages.

As already stated, the facts in this case are not such as to have made it error to refuse this. This request was also made:

“If the jury find that the market value of the land of the defendant, Sinning, net appropriated, is as great after the appropriation as before, then no damages can be awarded to the defendant. ”

The court said as to this: “I give you this subject to what I have said before as to off-setting benefits. But you cannot take into consideration after the appropriation is made any benefits accruing to said land not appropriated by reason of the appropriation.”

Under the facts of this case, we think that instruction was proper; that it was proper to give it as modified, and there was no error in refusing to give it without modification.

On page 94 of the record this request was made:

“The jury are bound to return to the defendant, Sinning, full compensation for the 71-100 acres of land appropriated from her. If you find that the remaining property of Mrs. Sinning is increased in value rather than diminished, such increase cannot be taken inte account in fixing the value of the 71-100 acres, but in that event Mrs. Sinning would be entitled tc no damages to the balance of her property.”

We do not thinJc it was error to refuse that, under the facts of this oase, for the reasons already given.

There was another request, but what has been already said of the charge given applies to this and to whatever else there is in the charge.

Taking the entire record together, we think no error to the prejudice of the plaintiff in error is shown, and the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

author: POMERENE, J.

license: Public Domain

text:
    (Fifth Circuit—Stark Co., O., Circuit Court,
    1896.)
    Before Jenner, Pomerene and Adams, JJ.
    THE TRUSTEES OF THE REFORMED CHURCH OF UNION TOWN v. J. G. WISE ET AL.

      Will — Provision in husband’s will for wife, made during wife’s life, lapsed on her death her husband surviving—

    Wills were mutually made by a husband-and wife who each owned property. At the same time they entered into a contract in writing, providing that the provisions of these wills should be unalterable and irrevocable “as between the parties to this contract”. After the death of the wife the surviving husband changed his will. On his death the parties who would have been entitled to legacies under the husband’s will as originally made and,as heirs to the wife, to the legacy made'to her in such original will, claimed the legacies, by virtue of the provision of the contract that the will as originally made should be unalterable and irrevocable. Held, the provision in the contract “ that the wills should remain unalterable and irrevocable as to'the parties to the contract,” only referred to the husband and wife as the only parties to the contract; and even if the husband’s original will had remained in force, the provision for the wife made therein had lapsed by her death before the husband, and her heirs would not. be entitled to anything 'under such will.
   POMERENE, J.

The case of the Trustees of the Reformed Church of Uniontown v. The Executor of the Estate of John G. Wise, was submitted upon error, together with the other case of Rebecca Wise’s Administrator v. The Same Executor. Both cases involving the same question, were submitted to the court, and argued together, and the disposition of one, at least the disposition of the case of Rebecca Wise’s Administrator v. Stull, will also decide the other case.

It comes up under a demurrer to the petition in the first case — ‘amended petition; and in the second case there is a demurrer to the petition of the plaintiff, and also to an answer and cross-petition of certain defendants, being the heirs of Rebecca Wise. *

It presents about this state of facts: That in 1878, John G. Wise and Rebecca Wise were husband and wife, living together, each owning property in their own right. John G. Wise being the owner of a farm of one hundred and twelve (112) acres of land in this county; Rebecca Wise being the owner cf a town lot in this county. That they on the same day made wills, eaoh of them making a will, which was done in pursuance of an agreement entered into. It was stated that this agreement and these wills were written by the late Judge Meyer, who certainly understood how to write a will and how to write an agreement, and who understood the English languge.

The view that we have come to on the question presented is based materially upon this agreement. Counsel for the plaintiff in both cases seek to recover upon the agreement rather instead of the will. Now this agreement reads as follows — wills and agreements are of the same date,executed,no doubt, at rhe same time: “The undersigned, husband and wife, have eaoh this day executed a last .vill and testament, making disposition of the property which they severally own; and it is hereby declared such were executed under an arrangement previously entered into between the undersigned, by the terms of which it was agreed that neither party, should gain more by reason of an existing law than the provisions made for him or her in the other’s will. That such wills should be unalterable and irrevocable in so*far as relates to the interest of each party, the'ir heirs or legatees in the property of the other as the same has been fixed by said will. And it is also declared that eaoh of said wills was executed in consideration of the execuiion of the other.”

Now, Rebecca Wise, at the time of making her will, which was in 1878, gives to her husband a life estate in the house and lot of which she was then the owner; she gives to the Reformed Church one thousand dollars, and two hundred dollars to the family monument. The provisions of John G-. V/ise’s will, as it appears, were that he gave to his wife, Mrs. Rebecca Wise, an undivided fourth of his real estate, ■one hundred and twelve acres, five hundred dollars to the church, and three hundred dollars to the family monument.

Now, after this will was made, as stated, in 1878, in August 15, 1881, Rebeoca Wise died, without any change or any alteration in the will. Her will was admitted to probate and the provisions carried out.

John G. Wise continued to occupy and enjoy this property, -the house and lot, up until the time of his death; but in December, 1891, he changed his will — does not give the five hundred dollars to the ohuroh, and does not give to the heirs of Rebecca Wise the one-fourth of his real estate; but ■before this time, perhaps, after the execution of the will, •and after the death of Rebecca Wise,he sells this real estate.

Now, the administiator of Rebecca Wise with the will annexed, and also her heir*, come in claiming the one-fourth of his real estate under this will and under this contract. 'The question is, are they entitled to recover?

The purchaser of the real estate, being conceded to be an innocent purchaser, not knowing of this contract nor of these wills, the title passed to him; their claim is to the one-fourth of this fund, or the one-fourth of the value of this one hundred and twelve acres. That calls upon the court ior a construction of this contract; as to what this contract in fact means — what was intended by the parties.

It is a principle and a rule that parties entering into a contract make their contract with reference to the law then in force with reference to that. And what was the law at this time with reference to the rights of these parties as husband ■and wife?

As to the wife, on the death of her husband, she surviving him, she was entitled to hold the one-third of his real estate, as her dower during her life. As to the husband, he was entitled to hold this property, all her real estate, during his life. That is the situation. He no doubt knew it. We have a right to suppose he did know it.

Now, how do they contract with reference to themselves in that particular? The will executed at this same time gave to this Rebecca Wise and her heirs one-fourth cf his real •estate; that is, afee in the one-fourth, the dower interest being one-third of the real estate during her life. He gets exactly what the law would have given him. He gets the use of this house and lot during his life. He would have got that by the law. It does not appear, so far as I have been able to notice, and I do not know that it has anything to do with the question at issue here, as to what other property these persons may have had. These legaoies which I have mentioned, are the ones whioli are set up and undertaken to be enforced.

Now, by the terms of this contract, it was agreed that neither party should claim more by reason of any existing laws, than the provisions made for him or her in the other’s will.

That is one thing in the contract. Another thing, they oontraot here that such will should be unalterable or irrevocable, in so'far as relates to the interest of each party, their heirs or legatees, in the property of the other, as the same has been fixed by said wills.

New, as to that provision, that it shall be unalterable or irrevocable, does that apply to all the legacies or all the provisions of the will, or was it intended to apply simply to that which was given to the husband, and to that which was given to the wife? If it was intended to apply to all the legacies, devises and gifts, it would have been sufficient tc have said so, and it seems to us that the scrivener would have said here that “such will shall be unalterable or irrevocable;” but he says “in so far as relates to the interest of each party.” Now, the interest of each party is that which they get by the will. It seems to us it could have nc reference to that which was given to the church, but that given to each other.

Rebecca Wiso dies in 1881; her husband enjoys this estate; he gets nothing more than the law would have given him. Upon her death, what becomes of this legacy? That is, the legacy which he gave in his will — the one-fourth of his real estate? Now, we think clearly by the common law, and the statute, section 5971, I believe, does not change the common law in this respect, that this legacy to her lapsed. So then, if this will had not been revoked that was made in 1887, but had remained at the time of the death of John G. Wise, and had been probated, what would have been the result? Would her heirs have taken anything under this devise? We think not. Then, if the heirs of Rebecca Wise, being her brothers and sisters, and legal representatives, come up and file the answer aud cross-petition — if they could get nothing then by the will, could th^y have anything then by this contract- — when the contract provides for the making of the will, agreement to make a will under those provisions?

Turner & Webber, for Plaintiff in Error.

Willison & Day, for Defendant in Error.

Now, our construction of this contract is, that these provisions “unalterable and irrevocable in so far as it relates to the parties in interest,” were what was intended by the parties at that time; and that this contract could have no greater force than if the will had been allowed to remain in force.

This being the case, we do not see how it is possible that the administrator of Rebecca Wise or her heirs have any interest in his will, or can claim any interest; and therefore we think that the demurrer was properly sustained in both cases; and the judgment will be affirmed.

I might add that we examined nearly all the authorities submitted in' the case, and while we recognize the rule there, this is presented upon a construction of a contract.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Shearer, Summers and Wilson, JJ.
    THE CHARLES KUHL ARTIFICIAL STONE CO v. MARTIN MACK.
    A custom claimed among cuntraetors to help themselves to each other’s material unreasonable and not binding, but competent to prove absence of criminal intent.

      Jerome D. Greed, for the Plaintiff in Error.

      Geo. W. Hardacre, contra.
    Error to the Court of Common Pleas of Hamilton County.
   The defendant in error recovered a judgment for $385, damages for malicious prosecution on a oharge of taking a small quantity of the Kuhl Company’s material in completing a cement sidewalk contract, a line of work in which the Kuhl Company and Mack were competitors. Error was claimed in the admission of testimony as to a general custom prevailing among contractors of helping themselves to each other’s material when a small quantity was needed to complete a job.

The reviewing court holds that while suoh a custom is unreasonable as a-rule of property, and therefore not binding, yet it was competent for the purpose for which it was evidently introduced — 'that is, as tending to prove a lack of criminal intent.

Judgment affirmed.


author: SCRIBNER, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1894.)
    Before Bentley, Haynes and Scribner, JJ.
    JENNINGS et al. v. OHIO NATIONAL BANK et al.

      Equity — Marshaling liens — Two parties having liens on same property, where. one also has lien on other property—

    The general rule is. that if one creditor, by virtue of a lien or interest, can resort to two funds,and another to one of them only, the former must seek satisfaction out of that fund which the latter cannot touch. If, therefore, the prior creditor resorts to the doubly charged fund, the subsequent creditor will be substituted, as far as possible, to his rights. But this rule must be taken with the modification and exception that in its application the paramount encumbrancer shall not be delayed or inconvenienced in the collection of his debt, and that no superior equities of others are interfered with. And where a party takes a judgment and acquires a lien on personal property by levy, all during the pendency of the action of an older en-cumbrancer and after the judgment in the latter’s favor in that action and levy on the personal property of the debtor thereunder by such senior judgment creditor, it is not competent for such junior judgment creditor, whether party to the action or not, to come in and attempt by a subsequent levy upon his judgment to displace the rights of the senior judgment creditor to have the property appropriated to their . earlier judgment, on the ground that the senior judgment creditor had, besides the personal judgment against the judgment debtor under which their levy on his personal property was made, also in thé same action obtained a decree of foreclosure of a mortgage on lands of the debtor, by which their debt was secured, and which it is claimed should have been exhausted'first before levying on and satisfying his claim out of the debtor’s personal property.
    Error to the Court of Common Pleas of Lucas county.
   SCRIBNER, J.

On November 18, 1889, Perry Wood, as guardian of Samuel Wagner, brought his action in the court of common pleas of Lucas county, Ohio, against Franklin D. Cummer, the Flint Glass Sand & Stone Co., and the Ohio National Bank of Cleveland, Ohio. The proceeding was instituted upon a promissory note executed by Franklin D. Cummer, the payment of which shortly afterwards was assumed by the Flint Glass Sand & Stone Co., and also for the foreclosure of a mortgage given by Cummer to Wood as guardian, upon certain real estate in Lucas county, to secure the payment of the note in question. This note was dated August 1, 1888, and the mortgage bears date August 18, 1888. It is set forth in the petition that the defendant, the bank, claimed to have some lien upon or interest in the real estate, and for that reason was made a party defendant to the proceeding. A personal judgment and the usual deoree in foreclosure was rendered upon this petition by the court of common pleas, .Tune 24, 1890. This personal judgment was rendered against Cummer, as the original maker of the note, and the Flint Glass Sand & Stone Company, on its alleged liability for the payment of the note growing out of the transaction between Cummer and that company. It appears in the record that shortly after the execution of this mortgage the Flin.t Glass Sand & Stone Company, in consideration of the transfer to it of the property mortgaged by Cummer, assumed payment of this promissory note, and on the note as against Cummer and upon the contract as against the Flint Glass Sand & Stone Company, a personal judgment was founded, attended as I have said, with the ordinary decree in foreclosure. Some time prior to May 7,1892, a judgment and decree so obtained were transferred to Henry E. Palmer, but we do not find, on examination of the record, that Mr. Palmer was ever made a party in any form to this proceeding; and if he was so made a party, we have overlooked it.

The bank, which was a party, filed its answer and cross-petition against the Flint Glass Sand & Stone Company and the.defendant, Cummer, on January 28, 1890. This was really a short time prior to the entry of the judgment and decree in favor of Wood as the guardian of Wagner — which appears to have been entered, as I have said, on June 24, 1890. The cross-petition of the bank was on file at the date of the rendition of the judgment and decree in favor of Wood as guardian of Wagner.

The cross-petition of the bank was founded upon sundry promissory notes which are set cut in its cress-petition, and a second mortgage given upon the same property described-in the other mortgage, to secure their payment. .The cross-petition also contained a prayer for personal judgment against Cummer and the Flint Glass Sand & Stone Company, as well for the sale of the mortgaged premises.

Under sec. 5055, Rev. Stat., this cross-petition would appear as lis pendens from the date of its filing, January 23, 1890. This section reads as follows:

“When the summons has been served, or publication made, tne action is pending, so as to charge third persons with notice of its pendency; and while pending, no interest can be acquired by third persons in the subject matter thereof, as against the plaintiff’s title.”

This section simply embodies in statutory form the established doctrine upon the subject of lis pendens. The plaintiffs in error in this case, Jennings and Berry, recovered a judgment against the Flint Glass Sand & Stone Company, for $600 and costs. It does not appear upon the record that ■the defendant, Cummer, was a. party to th;s judgment — it was simply against the Flint Glass & Stone Company. This judgment was rendered on March 31, 1891, in the court of •common pleas of Lucas county, Ohio, and became a lien by force of the statute on the mortgaged premises described from January 5 1891, the date cf commencement of the term upon 'which this judgment was rendered. On this judgment various payments have been made aggregating $258.89, and the balance remained unpaid. This judgment was assigned to Berry October 5, 1891. One-half of it was re-assigned to the plaintiff, Jennings, April 19, 1892. This judgment was recovered pending the cross-petition proceedings above set ■forth’ in behalf of the bank and after the recovery of the Wcod-Wagner judgment and decree. As before stated, it became a lien by virtue of the statute upon the mortgaged property from January 5, 1891. Execution was issued' on the Wood-Wagner judgment above set forth at the instance of Palmer, the assignee thereof, May 5,1892. It was levied ■on the personal property cf the Flint Glass Sand & Stone •Company on the same day. Decree was rendered on the cross-petition of the bank, May 7, 1892, being at the term of the common pleas which was begun on April 5, 1892. A personal judgment against Cummer and the Flint Glass Sand & Stone Company was also rendered in the same proceeding, for $48,746.68 and costs. The court found in rendering that decree and personal judgment, that the mortgage of the bank constituted a second lien upon the mortgaged property; that it was subject only to that of the Wood-Wagner lien; that there was due on the Wood-Wagner judgment and lien $8, 746.61, with interest from April 8, 1890, at 7 per cent, per annum, still in force. It was directed that an order of sale should issue. The court also found the order of the liens m the same proceeding, as follows: First, the costs. Second, the amount due Palmer on the Wood-Wagner decree, as assignee thereof. Third, the amount due to the Ohio National Bank. Fourth, the balance to go to the Flint Glass Sand & Stone Company.

Execution was issued on the Berry-Jennings judgment on May 9 1892. It may7 be observed in passing that this was two days subsequent to the rendition of the judgment and decree in favor of the bank, which was on May 7, 1892.

On May 9, execution was issued on the Berry-Jennings judgment and was levied on the same day, on the same personal property seized upon the execution issued upon the Wood-Wagner judgment. On May 17, 1892, an order of sale was issued on the decree of the bank. On May 20, 1892, the personal property which had been levied upon, first at the instance of Palmer on the Wood-Wagner judgment, and second at the instance of Jennings and Berry on their judgment, was sold to Palmer, for $8,450.00. It will be observed that this sale took place on the day before'Jennings and Berry made application to be made parties to the pending proceedings to which I have referred, for the purpose of asserting the claims which they afterwards made. On May 21, 1892, being, as I have said, the day after the sale of the personal property and several days after the decree was had, Jennings and Berry made application to the court, or moved the court, for leave to be made parties. This motion was "granted on June 13, 1892. An order of sale was issued on .the decree of the bank, May 11, 1892. The'mortgaged premises were sold to Palmer, under this order of sale, on June 18, 1892, for $30,667.00, being two-thirds of the appraisement, and this sale was confirmed and distribution ordered July 2, 1892.

The cross-petition filed in the case sets forth -sufficiently the claim on the part of the oross-petitioner, and shews plainly the matter in contention here. They set up the judgment, as I have already stated it, and the amount due upon it; the issue of execution at the instance of Palmer, ou the first judgment, and its levy upon the personal property, and its advertisement for sale by the sheriff, and then say:

“That on May 9, 1892, these answering defendants duly caused an execution to be issued on their said judgment in said cause No. 30,598, to the sheriff of said county, who, on said day levied the same upon said personal property already in his possession seized under the levy hereinbefore mentioned in favor of said Henry E. Palmer, and thereby these answering defendants acquired a valid lien cn said personal property next and subject only to the lien of said Palmer thereon.

Then they state the sale of the property and the price for which it was sold, and they add:

“That said Palmer,by virtue of the decree rendered herein bv this court on June 24, 1890, has long had he first and best lien upon the real estate described in the petition herein as security for the payment of his said judgment; that said real estate has at all times been worth many times the amount of his said judgment, and he could easily have obtained full satisfaction from the sale of said real estate; that, notwithstanding the premises, said Palmer proceeded to levy and get the first lien upon the said personal property, and without regard to the equitable rights of these answering defendants, to have him satisfy his said judgment out of the fund arising from said real estate and to leave the fund arising from the sale of said personal property for the satisfaction of these answering defendants, said Palmer has proceeded to exhaust the said personal property, and thereby prevented these answering defendants from being satisfied therefrom; that in equity and good conscience these answering defendants are entitled to be subrogated to the extent of their said judgment to the lien of said Palmer upon said real estate and to his rights thereunder.”

And the prayer of the petition is in accordance with that clainj. Briefly, then, it may be stated that the claim of these plaintiffs in error is this — 'though before passing to that, we fail to find anything in this record, except the finding of facts by the court and the judgment thereon, which particularly interests Smith &Co., and the other parties associated.

“Mr. Huntsberger: Is not their cross-petition in the record there?
“The Court: No. •
“Mr. Huntsberger: ' Then that is an emission.
“The Court: There is among the files, a motion by those parties to be permitted to be made parties and to file an answer and cross-petition: and that motion seems to have been granted, but there is nothing to show that they ever filed an answer and cross-petition; but the court passed upon their rights.
“Mr. Huntsberger: Yes, it was present in the court below.
“The Court: The petition of these plaintiffs in error, briefly, is this: that Palmer had his mortgage and decree upon the real estate; he had a levy upon this personal property. The plaintiff — by force of the statute, whether they chose to rely upon it or not — had a lien also upon the real estate, third in order, however, because the bank had tho second lieD by way of a mortgage upon the real estate. Jennings and Berry, having, as appears in the case, a second lien upon the personal property, by virtue of their levy subsequent tc the levy of Palmer, and having also a lien really upon the real estate by force of the judgment only, nevertheless, as they claim, are entitled — 'Palmer having subjected the persona] property to sale upon his execution and realized some $8,000 by that sale — they are entitled to have, to a proportionate extent, their mortgage satisfied from the proceeds of the real estate. And that claim is made upon the doctrine laid down in Green v. Ramage, 18 Ohio St., 428, where this proposition is stated by the court:
“Where A. has a mortgage upon two lots, and B. has a subsequent mortgage upon one, and C. upon the other of the lots, of a later date than the mortgage of B., A. cannot be compelled at the instance of B. to exhaust first the lot on which 0. has his mortgage.
“In such case A. will be required to make his debt out of both lots in proportion to the amount that each may produce. ”

And briefly stated by the court in its opinion, we find this conclusion:

“We think, then, that justice between Hillier and Green requires that each should have the full benefit of his mortgage, and this can only be done by requiring Wilson to take his debt out of the proceeds of both lots proportioned to the amount that each lot may produce.”

The application of the doctrine to this case it is said will produce this result: Mr. Palmer has his decree and lien upon the real estate. A sale of the real estate produced some $80,000. He has his levy upon the personal property. The personal property produced upon sale by the sheriff seme $8,000, and new it is claimed that upon a proper application of the doctrine in the case of Green v. Ramage, supra, that these plaintiffs holding a subsequent lien upon the personal property by virtue of their levy, are entitled substantially to have Palmer’s judgment satisfied proportionately from the proceeds of the real estate and from the proceeds of the personal estate, and that he having sold the personalty and having sold the real estate, that plaintiffs are entitled to be subrogated to his rights in that respect under the equitable doctrine which has been referred to in the cases cited.

New,upon the general subject, among the text-books cited (which really repeat one after the other the same doctrine) reference has been made to volume three of Pomeroy’s Equity Jurisprudence, sec. 1414:

“The equitable remedy of marshaling securities, with that of marshaling assets, depends upon the principle that a person having two funds to satisfy his demands shall net, by his election, disappoint a party having but one fund. The general rule is, that if one creditor, by virtue of lien, or interest, can resort to two funds, and another to one of them only, as for example, where a mortgagee holds a prior mortgage on two parcels of land, and a subsequent mortgage on but one cf the parcels is given to another, the former must seek satisfaction out of that fund which the latter cannot touch. If, therefore, the prior creditor resorts to the doubly charged fund, the subsequent creditor will be substituted, as far as possible, to his rights. These rules must be taken with the modifications and exceptions that in their application the paramount encumbrancer shall not be delayed or inconvenienced in the collection of his debt, for it would be unreasonable that he should suffer because some one else has taken imperfect security; that the rights of third parties shall not be prejudiced; and that the parties themselves are creditors of the same debtor.”

I call attention, in passing, to this clause in the section, which is fortified by a large citation of authorities “Theso rules must be taken with the modifications and exceptions * * * that the rights of third parties shall not be prejudiced.”

Again, in volume 14, American and English Encyclopedia of Law, 68 — where the section cited by counsel from Judge Story’s Equity Jurisprudence, sec. 638, is copied; and reading a small portion of the discussion contained in the annotation by the author, we shall find the doctrine stated as we understand it:

‘‘The equity being against the debtor, it is equally against his judgment creditors whose liens were obtained subsequently to the lien of the junior creditor in whose favor the equity is enforced. Thus in Robeson’s Appeal, 117 Pa. St., 628.”

And, by the way, I might mention that these debtors are cf opinion that that case overrules the case cited by counsel for plaintiff in error in their brief, found in 3 Watts (Penn.), 477, and I find that case cited in the brief of counsel to support several propositions.-

‘‘Thus,in Robeson’s Appeal, 117 Pa. St., 628,the owner of a tract of land gave a judgment to A. and then a mortgage to B. Subsequently the owner acquired a second tract, on which A., by a revival cf his jugment, obtained a first lien. ”

So that it will be observed that A. had a lien upon one tract, and B. a mortgage upon the same tract, second in order; and then A. acquired a first lien upon the second tract acquired afterwards by that debtor.

“Subsequently the owner mortgaged this second tract to C. Upon -a distribution of the proceeds of both tracts it was held that C., having had record notice of the other liens, Blunder bis superior equity, could-require that the proceeds of the second tract should be applied to A.’s judgment in relief of his own lien upon the first.”

Here A. has a first lien upon a tract of land, and B. has a second lien by mortgage! The debtor purchases the second tract upon which A. obtains a first lien. Then 0. takes a mortgage upon the second tract, and the proposition ruled by the court was, that B., who had a second lien upon the first tract, could compel A. to exhaust the second tract upon which B. had no lien, even to the exclusion of C., who had taken a mortgage upon that tract, thereby relieving the tract of the first purchase upon which B. had a second lien. And the court said:

“This equity, wé have said, was against the debtor, and it is equally such against his subsequent mortgage creditors with notice, who can have no greater rights than the debtor had at the time the mortgage was given. This equity existed in favor of the appellants before the appellees acquired their lien; prior in tempore potior in jure. The appellees must be considered to have taken their mortgage subject to the prior equity of the appellants.
‘‘In Delaware & Hudson Canal Co.’s Appeal, 68 Pa. St., ■573, a mortgagor had ether lands than those mortgaged, which, including the mortgaged premises, were bound by four earlier judgments. Subsequent to he mortgage were other judgments which were liens upon all the lands. Up■on the distribution of the proceeds of a sale of all the lands the court subrogated the mortgagee to the rights of the senior judgment creditors in the lands not covered by the mortgage. It was distinctly held that the judgment creditors subsequent to the mortgage had no rights superior to those of their debtor. The same principle is recognized in Hastings’ Case, 10 Watts (Pa.), 303. These cases and Robeson’s Appeal, 117 Pa. St., 628, overrule Miller v. Jacobs, 3 Watts, 477, where it was held that a creditor who has a lien on two funds may throw the whole burden on one of them, to the exclusion of a junior encumbrancer, if the ether fund is subject to incumbrances, which, though posterior in date, are sufficient to absorb the whole, because the effect of such a course is merely to postpone one creditor to another, and it does not enable the d'ebtor to get back the estate discharged of the lien. In Hoff’s Appeal, 84 Pa. St., 40, it was held that a bona fide purchaser may be unaffected by an equity of which he had no notice in fact.
“The general principle is explained by Judge Hare in a note to Aldrich v. Cooper, 2 Lead. Cases in Eq, 266, as follows: ‘The equity has its root in the obligation of the debt- or, but is also an equity among the creditors, that eacb shall, when it can be dene without loss or inconvenience, so use his right that all may, as far as the circumstances admit, be satisfied in the order in which their liens severally accrued. A. has a paramount lien on two tracts of land, B. a lien on one of them, and C. a subsequent lien on both. If A. exhausts the tract which is the subject of B.’s lien, B. will be subrogated to A.’s lien on the other tract, although C. is thereby excluded from the fund.1 ”

Now herbare A., B. and C. A. is first, B. second upon a portion of the fund, and C. third upon all of the estate. B. is allowed to partake of the fund.

“A writer in the American Law Register, vol. 27, page' 738, states the rule concisely as follows: ‘If a paramount encumbrancer of two funds, by his election of remedies, disappoints a junior creditor, who has alien upon one of them only, the latter shall, to that extent, be substituted to the lien cf the paramount encumbrance upon the other fund bound by it, as against the debtor and all claiming under him, by lien or title subsequent in time.’ ”

In the case of Phillips v. Bell, 4 C. C. 316, I find this-statement in the conclusion of the court upon the proposition here presented:

“Where one person has a lien upon two or more tracts of and, and another a lien upon only one of them, the person having the lien on all will be driven to assert it against that on which the other has no lien,” unless the superior equities of others are interfered with, which shows a qualification of' the general doctrine which seems to be (f some importance..

We intended to state, but perhaps may have omitted to-do so, that the judgment of the court of common pleas rendered in this case was against the claim made by the plan-tiff in error. That is, of course, tc be assumed frem the-fact that they are here with their petition in error. The-fund was applied first to the Wood Wagner judgment, and secondly to that of the bank, which exhausted the entire-fund. Now, applying these views briefly to the case in hand, [ will refer to some of the facts which have been state.

In the first place, Palmer having under his execution caused levy to be made upon this personal property ou May 5, 1892, and thereby acquired two securities for his debt; the mortgage which was prior m time, and the levy upon the personal property which at that time constituted the only charge or lien upon the property, it, appears to us that upon that levy being made, the Ohio National Bank here could have compelled Palmer-to exhaust the property so levied upon before resorting to the realty upon which it held second lien. The right to do this Palmer possessed by the levy. The right so attached could not be displaced or impaired by a subsequent levy at the instance of another judgment creditor. That levy when made by Palmer constituted pro tanto satisfaction of the judgment. Upon a sale being made upon that execution there was no confirmation necessary; there was no action of a court of record; the execution was issued and levied and the property sold in regular form, and bid in by the judgment creditor. Unless upon some proceeding, instituted in proper form, that sale was set aside (which was never attempted in this case), the moment the sale was made and returned, there was, pro tanto, by opertion of law, a satisfaction of the judgment,

a Upon this proposition, I refer for a moment to two cases cited by plaintiff in error here: Fassett v. Traber, 20 Ohio, 540, the syllabus of which is as follows:

“When two creditors have each a lien on the same property of their debtor, and the one having the prior lien has also a lien on another fund for the same debt on which the subsequent lienholder has no claim, such prior lienholder will be compelled, in equity, to exhaust such fund before he proceeds to subject the property on which the other creditor has his lien. • ~~
“If, after bill filed by the subsequent lienholder to compel such subrogation, the prior lienholder delivers up his claim on the second fund, to the debtor, he will be compelled, as between him and the subsequent lienholder, to account for such fund as so much paid on his claim.”

Now here, ou May 5th, Palmer had his decree on his first mortgage for his debt. He levied by execution upon the personal property here in question. The bank had a second lien, by mortgage upon the real estate oovered by Palmer’s mortgage, but it had no lien upon the personal property. As the situation then was, therefore, Palmer could have been compelled by the bank to first exhaust his levy upon the personal property on which the bank had no lien, to the relief of the bank so far as concerned the real estate upon which the bank had a second lien, and, under the ruling made in this case in Fassett v. Traber, supra, if after having made the levy Palmer had released ox relinquished it, or wasted the personal property, he could have been compelled to account to the bank for the Joss so sustained, that is to say,so far as concerned the real estate.

And in Teaff v. Ross, 1 Ohio St., 469, the same principle is applied, although there the controversy was between a purchaser and the mortgagee, and not between a judgment creditor and the mortgagee. The syllabus in that case is as follows:

“H. mortgaged land to T., and afterwards sold it to 0., and received payment. H. informed T. of the sale, and in order to remove the incumbrance, as he was bound to do by his contract with 0., he proposed tc give a new note for the debt, with a mortgage on real estate to secure it, to which T. consented, and the new note and mortgage were accordingly executed a.nd delivered, T. agreeing not to prosecute the first mortgage if the property coveied by the second was sufficient to pay the debt. The property was amply sufficient, but T. neglected for sixteen months to deliver the mortgage for record, by means whereof the property was swept away under mortgages and conveyances made by H. within that period.
“Held, that under these circumstances 0. ’s land was discharged from the lien of the first mortgage, ”

Now let it be borne in mind in this action, that at the time Jennings and Berry recovered their judgment — at the time they made their levy upon this personal property subject to the levy of Palmer — that the proceedings of the bank upon its oross-petition operated under the statute as lis pen-dens, so that everything that was done in that action affecting or determining the rights of the bank as against the property proceeded against affected the attitude of Jennings and Berry precisely as though they were parties defendant. It is not necessary, where a man has instituted proceedings to subject property to sale to satisfy a lien, that hé bring in all the parties who are supposed to acquire interest in the same property pending the action. That is the established doctrine,, and it is placed here in the form of a statute by seo. 5055, Rev. Stat., to which we have referred. So far, therefore, as concerns the real estate and the right of the bank in that real estate, the rights of these claimants, Jennings and Berry, are affected by any judgment or decree made by the court in that proceeding pendente lite; it is precisely as though they -were made parties defendant and were actually appearing m the case, so that the decree in favor of the bank upon its a’nswer and cross-petition, which was rendered May'7, 1892, binds these parties so far as the real estate is concerned. Of course, the personal property was not brought into the case in any shape or form; but, so far as the real estate in concerned and so far as the rights of the bank in each are concerned, the decree of the court fixing and establishing the rights of the bank and granting the relief to the bank, binds Jennings and Berry just as much as if they were parties to the proceeding. Then that decree was rendered on May 7, 1892. It fixed the title and rights of all the parties in the mortgaged property, an order of sale and application of the proceeds in accordance with the findings of the court as to the rights of the parties. The sale was made. Now then, in our judgment, it is not competent for these creditors, Jennings and Berrjq whether they were parties to this decree or net, it is not competent for them after the levy of May 5th, by Palmer, which created in the bank a right to have that personal property first sold and its proceeds subjected to the payment of Palmer’s .lien, to oome in and by a subsequent levy upon their judgment displace .this right of the bank to have the property so appropriated and its proceeds so applied. Here the bank, on May 7, 1892, obtained a personal judgment and a decree upon the mortgage executed along in 1888 or 1889. Mr. Palmer, upon his judgment, rendered in 18 — upon May. 5th, levies upen this personal property. The moment that levy was made the right attached in the bank to require that the property should be first subjected to the payment of the Palmer judgment; and if, the right so having passed, Palmer had wasted or squandered the property, he would, nevertheles, by the law as recognized in these Ohio cases, among other authorities, have been compelled to account for the distribution of the proceeds of the sale of the real estate to the bank, the loss of which he had permitted, or the waste cf which he had permitted. He could not do it after he had made the levy and secured a lien which provided a fund for the payment of this mortgage debt, which was a first lien, and the mortgage debt of the bank being a second lien, he could not prejudice the bank in that way. Now, then, can another creditor, after the rights of the bank have attached, come in and by a subsequent levy displace these rights which had attached in favor of the bank, and require that a portion of the proceeds of the personal property shall, in effeot, be applied upon his debt by subro-gating him to the original right of Palmer to have the mortgaged property subjected to the "payment of hisjugment and a portion of the proceeds of that mortgage applied upon his claim? We do not think it is competent. We think the reasoning of the determination of the cases cited from this encyclopedia is clearly against it.

For these reasons, the statement of which have been somewhat extended, we think the court below did not err, and that the judgment should be affirmed.


author: SWING, J.

text:
    (First Circuit—Hamilton Co. O., Circuit Court,
    January Term, 1895.)
    Before Cox, Smith and Swing, JJ.
    McGREW v. THE VILLAGE OF ELMWOOD PLACE.

      Burns Law — When applicable to a contract—
    A contract by a village which on its face binds it absolutely to pay a certain amount within a certain time to be ascertained thereafter, payment to be made out of the general fund, is within the Burns law, although .it may have been expected that the payment would be made out of the proceeds of a street assessment, such limitation not being expressed in the contract.

      M. G. Heintz, and Win. E. Bundy, for Village.

      W. W. Pease, contra.
   SWING, J.

We are of the opinion that the judgment of the court of common pleas should be affirmed in this case.

We regard the contract in controversy as clearlv within section 2702, Revised Statutes. It was a contract between the parties whereby the village agreed to pay a certain amount of money within a certain time, to be ascertained thereafter. The amount of money was not .stated in dollars and cents, but was to be ascertained by a fixed rule thereafter. The amount was to be paid by the village, as far as the contract shows, out of the general fund. It was claimed that the contract did not come within the provision of the statute, for the reason that it was to be paid out of the assessments for streer improvements. It might be that the village expected to pay for the services with money so received, but there is no such limitation in the contract. The village, by its terms, is liable on this contract without regard to whether anything is received from property assessed.

The provisions of this statute, we think, are too plain and too broad to permit any such contract to be valid unless the terms of the law have been complied with, and in this ■case it was admitted that they were not.

Judgment affirmed, with costs.


author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1893.)
    Before Bentley, Haynes and Scribner, JJ.
    THE L. S. & M. S. RY. CO. v. NEY.

      Rules of Railroad Co. — Injury to employe in consequence of nonobservance of rules,in coupling cars with hand—
    Where the rules of a Railroad Co., known to the employe, require its employes in coupling cars¡[to use a stick, for which purpose sticks are provided by the company and would have been furnished to plaintiff if he had asked for one; and the testimony shows that the cpupling in question, in making which the employe was injured, could and should have been made by the use of a stick, such employe is not entitled to recover for an injury received while attempting to make such coupling by hand, in disregard of the rules of the company.
    Error to the Court of Common Pleas of Lucas county.
   Bentley, J.

This case is before us upon a petition m error to reverse the judgment of the court of common pleas, rendered upon a verdict returned by the jury in favor of Mr. Ney, and against'the railroad company, for alleged personal injuries received by Mr. Ney about December 11, 1890, in the Lake Shore yards.

The plaintiff alleged in his petition that at the time of, and before the injury to him, he was in the employ of the defendant in the capacity of a switchman or helper; that it was his duty, under the directions of the pony conductor, to' assist in switching and coupling and uncoupling cars, in making up trains for the defendant; and that on December 11, 1890, about 9 o’clock in the evening, he was engaged in that work under the orders of what is called a pony conductor in the employ of the defendant, and that he was bound to obey the orders of the conductor. “That at, or about that time the said pony conductor directed that an engine with ten freight cars should proceed in a northerly direction over the said scale track to a box car that lay near .the said scale, and that said car should be coupled to the said train of oars, and taken by it from the said scale track to some other track, there to become a part cf a train that v?as being or about to be made up.” The plaintiff says, that “in obedience to said order, the engineer on the said pony engine pushed the said train of abcut ten cars back over the said track in a northerly direction, toward the said freight oar that was standing near or on the said scale; that as the train of said cars approached the said box oar, it became the duty of the said plaintiff to pass between the end cf the said train and the said box oar, and make the coupling; that he did go between the said car and said approaching train, and when .the said train of cars was about to Btrike against the said car, he endeavored to couple the same, but failed for the reason that there was some defect in the drawbar on the north end of the northerly car of said approaching train. That when the said train sruck the said box car, the said box car was driven by the concussion about a car length north of the said train on an up-grade. The said plaintiff thereupon signaled the pony conductor to hold the said train at a stand-still, in order that he might safely make the coupling when the said car returned, as it was certain to do, by reason of the down-grade. This plaintiff says that at the time he gave the signal to stop the train,the pony conductor was standing near the engine in full view of plaintiff’s lamp, and saw or by the use of reasonable care might have seen, the said signal; that the engineer, in obedience to the said signal, did stop the said train; that plaintiff adjusted the drawbar by raising it and bracing it with a small piece of coal, and so adjusted it that the coupling could be made without difficulty when the said car should return, and thereupon waited for said car, and when the said car returned, as it did, on the said down-grade to the place where plaintiff was standing at the end of slid train, the said plaintiff undertook to make the coupling — all of which was known, or by the use of reasonable care might have been known, to said pony conductor. And that while he was so engaged in the work of coupling the said box car to said train of cars, the said pony conductor carelessly, wrongfullj, and negligently signalled the engineer on the said engine tc start his said engine rapidly forward; the engineer in obedience to said signal did start the said engine rapidly forward, and thereby the said ten cars were driven rapidly and violently against the said box car that the plaintiff was endeavoring to couple to this train, whereby, without any fault on the part of this plaintiff, but entirely by the reasou cf the negligence of the said pony conductor in giving the said signal to the engineer to start his engine as aforesaid, plaintiff’s right hand was caught between the drawbars of the two cars he was endeavoring to couple, and crushed and mangled in such a manner that the greater part of it was afterwards necessarily amputated,” to his damage in the sum of $16,000.

As has been said, the case was tried to a jury, and the questions presented to us arise upon the facts as presented by the bill of exceptions, there being a motion for a new trial, which was overruled, and exceptions taken. The question of the effect of this testimony, as bearing upon the issues, is presented to us, whether it afforded the jury any reasonable ground for the verdict in favor of the plaintiff.

The particular faots bearing especially upon the accident are somewhat simple. The situation of the cars is detailed in the petition, and the movements that were going on. There was testimony given to the effect that one of the cars in question.was equipped with what is called an ‘‘Eames coupling apparatus”, and a similar apparatus, one of the Eames couplers — drawbars—has been brougüt in and exhibited, for the information of the court, that we may see to what the testimony applies. There was some confusion in the testimony as to where this Eames coupler was — 'that is, whether it was upon the end of the car which was already attached to the engine — une of the ten cars that were being moved by the engine — or whether it was attached to the stationary car to which these cars were to be coupled. There seemed to be more or less confusion all the way through the case, in the examinations at least, as to what the fact was, and there seems to be a controversy between the attorneys even now as to what the real fact was. But there was, substantially, a conflict of testimony regarding this matter. The testimony given on behalf of the plaintiff, and by the plaintiff, was finally, we think, clearly to the effect that the Eames coupler, which bore the link to be used in the particular coupling, was upon the car to which the train was to be coupled, and that the other drawbar complained of — > the standard Lake Shore drawbar — was attached to the last of the ten cars already attached to the engine, and which was to be attached to this Eames coupler, the pin to be dropped in place being upon the standard Lake Shore draw-bar. The testimony on behalf of the railroad company tends tc show the reverse of the situation, namely: that the Eames drawbar was attached to the last of the ten cars already attached to the engine, and not upon the other car. Although some argument was founded upon that, there is substantially a conflict of testimony in" the matter, and it would be utterly impossible for this court, were we so disposed, tc say from this record as to which party was in the right as to this fact. But in our view of the oase it makes no substantial difference whether this Eames drawbar was upon one of those cars or the other. The rea1 controversy in the case arises over another question.

The controversy of fact which was presented between the plaintiff’s proof and that of the defendant was over the question whether the signal to go ahead, complained of in the petition, was given by the plaintiff himself or by the pcny' conductor, to the engineer. There seems to be no question but that the engineer received a signal from somebody to go ahead, and obeyed it, starting the cars, according to all of the testimony on both sides, very slowly, but starting them. The plaintiff says in his petition,and also in his evidence given upon the trial, that when the cars first came together and he endeavored to make the coupling, he discovered that the Eames drawbar was from an inch and half to twc inches higher than the other drawbar, so that the link did not readily enter and that by the first impact of the ten cars upon the stationary car, the stationary car was driven to the north, and thereupon the plaintiff got a piece of coal, raised up the drawbar of the standard Lake Shore car, and, as he says in his petition, “so adjusted it that the coupling could be made without difficulfly when the said cars should return.” His ' petition says that that was the situation of affairs at the time the last attempt to couple was made, viz: that he had so adjusted the Lake Shore drawbar that it was upon the same plane as the other, and the coupling could be ma le without difficulty. He says in his testimony that that was true.

There is no question made that there was a defect in either of these drawbars. The simple fact was that one was from an inch and a half to two inches lower than the other; but that was frequently the case, perhaps, with different ,oars that go to make up a train.

The plaintiff says that when this stationary car had thus ibeen driven back, and he had adjusted this drawbar so that -.the coupling could be made without any difficulty, instead of holding the train still, and allowing him to wait for the return of that car, on account of the down-grade, and to make the coupling in that way, the engine started northerly towards the car which had thus been driven up the traok, and that this movement occurred just about the time that the car had returned and he was actually manipulating the link to make the coupling, and that thereupon the heads of the drawbars coming together quicker than he anticipated, his hand being in there, it was caught and crushed.

The negligence which the plaintiff complains of against the defendant is simply in starting this train in that way, under those circumstances. The defendant claims, in addition to its claim that the conductor gave no signal, that Ney himself had given the signal, and that the train was backing all the while in obedience to his signal; that the man was guilty of misconduct and negligence himself, in this: when he was employed by the company, he received a printed copy of the rules together with oertain instructions therein; that he had them in his possession, and that he was aware of their contents. One rule required the switchman, or any person attempting to couple cars, to do it with a stick, and not to use the hand for the purpose of guiding the link, except in cases where it was necessary — 'that is, in cases, as the rale says, where a stick could net be used for the purpose. Tne plaintiff testified-that he had received and knew of than rule; that he didn’t use a stick; that he did use his hand, and that the injury occurred substantially as we have said. The company gave testimony, and it was not disputed, so far as that fact goes, that sticks were prepared for this use, which he might have obtained and used; that the rulé required him to furnish himself with a stick, yet the company furnished it; all he had to do was to go' and get it. He attempted to give testimony several times to the-effeot that although this rule was nominally a rule of the company, yet the rule was not in force; that it was not the habit of brakemen generally to use a stick; that the coup-, ling was almost uniformly made by the hand in the presence of the officers and superior agents of the company; and that thereby the rule should not be Allowed to figure in determining this case’, or in determining the character cf bis action in using his hand. Whether right or wrong, as the questions were presented at various times during the trial, the court of common pleas uniformly excluded that testimony, and it was not given. So that the question finally presented to the jury rested upon the general facts cf the case, with that rule in fcrce, and with the confession of the plaintiff that he did not use his stick, but that he used his hand.

It will be seen, then, that the real question — the final controversy which the jury were called upon to decide, in view of the charge of the court upon' the effect of that rule, was, whether or not that was an occasion where this rule required the use of the stick or not; or perhaps, to state it a little more liberally: this was given to the jury as a question of fact whether or not, in the exercise of reasonable judgment upon the part of the switchman, when he was attempting that coupling, in view of the situation and circumstances, he should have been required to use his hand, or whether it was an occasion where he should not use his hand, but should use a stick. The jury found that' it was proper for him to use his hand, apparently — that is necessarily the conclusion from their verdict; and the question presented to us is, whether they had a right to so find from this testimony.

The plaintiff says in his testimony, upon pages four and five, in answer to questions:

“Go on and tell the jury just what you did. A. I went back and made the three couplings, and came to this Eames coupling. The oar stood about three car. lengths south of the scale track. I tried twice to couple it, but couldn’t make it. I put a little lump of coal under the drawbar, and could make the coupling all right. The track kind of descends down, kind of 3tep down on a small slope like — went in and put a little lump under there, and set the pin.
“Q. When you gave them a signal to stop, what happened? A. It brought them right to a stand-still, and stopped.
“Q. Was it after they stopped that you put in this piece of coa'l, or before? A. I had the lump of coal before he stopped. The car came moving along down. I made the coupling all right. Just as I went to pick up the link to enter into the drawbar,the engine came ahead on me,and caught me.”

I have marked in the record the testimony bearing upon this matter — the necessity of using the hand on such an occasion as here presented. Perhaps I ought not to take the time now to turn tc that, but0 to state substantially all the proof upon that subject. The defendant had v'arious witnesses who testified that the coupling could be made with a stick. The plaintiff had some one or two, possibly three, witnesses, who gave testimony upon this subject, and in the course of their testimony they said substantially, one could not couple an Eames drawbar or link with a stick. Upon inquiry as to why that could not be done, they simply gave this reason: that where the drawbar of the other car, into which tne link was to be entered was from one and a half to two inches higher than the Eames drawbar, the link, or bull-tongue, as it is called, is so heavy that a person could not raise it sufficiently with a stick in his hand, but must take it in his hand to raise it to the same plane, so it would enter. It was proven, substantially without any contradiction, and by witnesses on both sides, that where it was simply necessary to depress the link of the Eames drawbar, it could be depressed three or four inches by a pressure upon the top of it; that generally it was supposed to be almost on a poise,but the back end being a little heavier, it was net quite on a poise, but that a slight pressure upon the top,of the link would depress it three or four inches. And this is illustrated by what has been brought here, that that can be done very readily and very easily, upon a very slight pressure. There was no suggestion by anybody that there was any difficulty in making a coupling where the drawbars were substantially upon the same plane; there was no suggestion of any difficulty sometimes occurring where one of the drawbars was on one side of the other — ■ where they didn’t come face to face; the only suggestion of difficulty is, when, net the Eames drawbar, but the other, is an inch and a half to two inches higher than the other. Where the Eames drawbar is the higher, if thev had not been brought to the same plane, the proof is, that by a slight pressure even by a stick or anything,the Eames draw-bar could have been depressed, and the entry could have been made. But even that situation is not placed before us in this record, for when the accident occurred, and the coupling was about to be made, it is the undisputed proof— the claim of the plaintiff in his petition and in his testimony — that the drawbars were upon the same plane, and that the coupling could be made without any difficulty whatever. There is the situation: the coupling could be rpade without any difficulty whatever, and without danger, by the use of a stick. The stick could have been used. The plaintiff knew of the rule, and he chose to disobey it. In those circumstances we see no escape from the conclusion that the jury were not warranted in finding that the defendant was not called upon to use ai stick, and that it was perfectly right for him tc use his hand. And it being perfectly manifest that the accident occurred simply because he did use his hand, and not a stick, we are compelled to say that the verdiot is not sustained by the evidence. There is not a conflict of evidence, but the concurring testimony of all persons upon the facts that bear upen the real controversy shows that the verdict is not sustained. In deciding this we do not m9an to say that the rulings which the court made against the plaintiff as to the admission of testimony about using a stick or using the hands were right or wrong. Whatever testimony might have been given upon that subject was excluded by the court. We decide the case upon the record as it is here presented to us.

This verdict will therefore be set aside, and the judgment reversed, and the cause remanded to the court of common pleas for a new trial.

Judgment against the defendant in error for costs on error.