author: HULL, J.

text:
    PAYMENT.
    [Ottawa (6th) Circuit Court,
    January Term, 1903.]
    Haynes, Parker and Hull, JJ.
    J. Weller Co. v. Washington Gordon & Co.
    1. Rule as to Acceptance of an Order, Check, etc., as Payment on Account.
    The giving of an order, check, or other instrument is not absolute payment unless it is shown that it was understood and agreed by the parties to be accepted as absolute payment and satisfaction of the amount, and the burden is upon the person claiming the payment to show these facts.
    2. Rule applied.
    Where, in awarding a contract for the construction of a canning factory, the canning company offer by letter, in which they specify the terms and conditions of the contract, to give the contractors, as part payment, an order on a “ citizens committee ” for a sum of money, supposed to be subscribed by the citizens of the place where situated to secure the location of the plant, which letter is marked “ accepted ” and signed by the contractors, but no committee is appointed and no money raised, from which the order can be paid, such order cannot be considered as absolutely accepted in payment of the contract, precluding the right to recover from the canning company. Nor is it necessary to recover thereon that the order be tendered back.
    X. Conclusive Presumption as to Terms Embodied in Written Contract.
    A written contract in the absence of mistake or fraud is conclusively presumed to embody the agreement between the parties thereto, and parol evidence is inadmissible to prove any agreement made prior to the execution of the written instrument.

      Error to the court of common pleas of Ottawa county.
    Scott Stahl and Charles Graves, for plaintiff in error.
    Judge Kelley and William Gordon, for defendant in error.
   HULL, J.

The defendant in error was the plaintiff below and brought its action against the J. Weller Company, to recover $700, with interest, which it claimed the J. Weller Company owed it, as a balance due for furnishing the material and constructing a certain building in the village of Oak Harbor, Ottawa county. The contract was made by correspondence, and is set forth in the petition. The answer admits the correspondence as set forth in the petition ; but avers that the $700 was fully paid by transferring to Gordon & Company a certain order for $700 on the “ citizens committee,” so called, of Oak Harbor. That order was given by the J. Weller Company to Washington Gordon & Company ; and the question in the case is whether it was accepted under the contract, by Gordon & Company, as payment of $700, or whether that was only conditional, and payment not having been made of the order and there being no funds wherewith to pay it, whether Gordon & Compan3r had the right to sue for and recover the $700. There are also somfe questions made in the case as to the admission of evidence, and especially as to the admission of some evidence which, it is claimed, varied the terms of the written contract between the parties.

It appears from the record that the J. Weller Company, in the year 1898, had built a building, and were carrying on business in Oak Harbor-They were conducting a pickling factory, and, in 1899, the3>- contemplated building a canning factory and desired the citizens of Oak Harbor to contribute toward that enterprise, and a meeting was held at which were present several citizens, just how many does not appear, and one of the members of the J. Weller Company was also present, and one of the firm, Mr. Kilmer, of Gordon & Company. Mr. Weller stated at the meeting that they would build a canning factory if the citizens would contribute $700 toward it. No formal action was taken, but several, or some, at least, of those present stated that the sum would be raised, one saying, “ We will raise the amount; there will be no doubt about it; ” another “ We will raise it.” Similar expressions were used by others, and a committee was appointed to solicit subscriptions.

Soon after that Gordon & Company solicited from the Weller Company the contract for building the building and made a bid for it along with others, and the correspondence then occurred between the parties which constitutes the contract in this case. Gordon & Company wrote to the J. Weller Company, as follows, under date, of May 12, 1899:

“ Oak Harbor, Ohio, May 12,1899.
“ The J. Weller Company,
“ Cincinnati, Ohio.
“Gentlemen : We will furnish the lumber for canning factory, as per bill submitted by you, for $975. We will furnish lumber for erecting buildiug complete as per your letter of April 29, for $1,054.60, and will erect same for you, furnishing everything necessary according to plans, for $415.
“ Respectfully submitted,
“W. Gordon & Co.”

On the following day, May 13, the J. Weller Co. answered that letter, as follows:

“ Cincinnati, Ohio, May 13, 1899.
“ Messrs. W. Gordon & Co.,
“Oak Harbor, Ohio.
“ Gentlemen: Your letter of the twelfth received with proposition to furnish the lumber and erect building for canning factory at Oak Harbor, Ohio, according to the plans furnished you, to-wit, at $1,469.60, the lumber furnished to be of Norway pine, the flooring to the building to be two-inch pine, floor for the second floor to be one-inch yellow pine. The sliding doors you can make all one solid seven foot-sliding doors on good substantial barn rollers, the lumber to be of good merchantable quality and the work to be done in good workmanship manner; we are to furnish windows and skylights for the building and you are to put them in the building. You are to furnish the sheeting (or the building and porches, and we are to put the gravel pitch roof on same. The foundation or piers for the building must be set in the ground below the frost level, say two and one-third feet and to be not less than two feet square at the base and to project two feet above the level of the ground, we prefer the piers would come up level with tlie floor of the building, if you can do so. The building is to be completed by July 1, 1899, unless providential circumstances beyond your control should interfere, and sooner if you can possibly do so, for every day after July 1, you are to pay us $15 per day until the building is completed; we say this as we must have the building done by this time, in order to get our machinery set up in place.”
“ The citizens of Oak Harbor are to contribute $700 toward this factory, and we will give you an order on this committee for the $700 and in addition we will pay you the balance of the $1,469.60, which will be $769.60 in cash as soon as the building is completed. You are to board up space under the main part of building and to erect out-house for the use of employes.”
“ Yours truly,
“ The J. Weller Co.
“ J. Weller, Pres.”

This letter was marked “ accepted,” or had stamped upon it the word “accepted,” and that was signed by Gordon & Company, thus making the contract complete. The building was constructed according to the contract, and after that the J. Weller Company sent Gordon & Company a check for $769.60, and also this order :

“ Cincinnati, Ohio, August 7, 1899.
“ The Citizens Committee of Oak Harbor, Ohio.
Oak Harbor Ohio.
“ Gentlemen : You will please pay to Messrs. Gordon & Company the sum of $700, the amount pledged by your committee on completion of the canning factory and greatly oblige,
“ The J. Weller Co.
“ Dictated J. W. J. Weller, Pres."

After receiving this order, Gordon & Company, through its officers( undertook to collect it. The testimony shows that there was no citizens committee that had any fund in its hands for the satisfaction of this order. The only committee appointed was one to solicit subscriptions, and subscriptions for a portion of the $700 were made, but no money had ever been turned over to the committee. Mr. Kilmer, of Gordon & Company, called on Mr. Gradolph, the mayor, who was chairman of the citizens’ meeting, but was unable to ascertain from him, or in any other way, that there was any such fund. As a matter of fact, there was, at that time no money, no fund of any kind or in any amount, out of which to satisfy this order. The evidence does show there was a deposit in a bank, at some time, of fifty dollars — twenty-five dollars deposited by the mayor and twenty-five dollars by someone else which was payable, according to the testimony, to the order of the cashier of the bank, but nothing could be collected on the order. Gordon & Company, being unable to collect it, or any part of it, brought this suit, and, in the court below recovered a verdict and judgment for $700, with interest.

It is claimed by the plaintiff in error that under this state of facts Washington Gordon & Company accepted this order in payment and full satifaction of the $700; that no recovery can be had. In the trial of the case, Mr. Kilmer testified over the objection of the J. Weller Company that at the time the J. Weller Company’s letter was accepted, Mr. Kilmer said to Mr. Weller that they wanted them to, collect this order; that if it became known in Oak Harbor that suph a contract as this had been made, it would be very difficult to collect this money, and that Weller promised to collect it. This testimony was objected to- by the defendant and exception taken to its admission.

We are inclined to the opinion that this testimony ought not to have been admitted; that the contract, as claimed by the defendants, was contained in the correspondence ; that this talk that occurred between Mr. Kilmer and Mr. Weller, whatever it was, occurred before the proposition from the Weller Co. had been accepted; and that, therefore, it could not be shown, Whatever the contract was, whatever the parties agreed upon is presumed and conclusively presumed to have been embodied in the written contract, and the parties must stand or fall by that. In our judgment the,testimony should have been excluded.

This brings us to a consideration of the question as to whether under the written contract, made as stated in the pleadings, this order .was accepted as a payment of the $700, or was conditioned upon the $700 being paid, or there being some fund with which to pay, upon presentation of the order by Gordon & Company. It is claimed by the plaintiff in error that this order was accepted as absolute payment and, satisfaction of the amount.

The giving of an order or check or other paper writing under such circumstances is not absolute payment, as we understand it, unless it is shown that it was understood and agreed by the parties to be accepted as payment. It is true that a party may agree to accept a check or a draft or an order in payment of a debt, or as a consideration for work or for goods, and if he does so, he is bound by it, as he would be in any other case of exchange or barter. But unless it is understood that it is accepted as payment, it does not extinguish the debt unless the draft or check or order, or whatever the paper may be, is paid; the party accepting it is bound to present it for payment and use ordinary diligence to collect it. So that the question here is, whether under this written contract, the court should hold that this was accepted as payment. There are some cases in this state that are in point upon this question. The case of Taft v. Wildman, 15 Ohio 123, is one. This was a case where a piece of land was sold for $800, $400 in cash and the balance in certificates of discharge from the army, which entitled the holder to a certain amount of land. It turned out that the certificates were void. The court say in the syllabus:

“To rescind the contract and recover back the consideration, a thing received in payment of no value need not be returned to the defendant.”
“ If A sell land to B to receive payments in cash and certificates of discharge from the army, assigned to A, he may sue for the original consideration quoad hoc those certificates.”

One point made in the case at bar is that the plaintiff could not recover without returning the order that had been given. The case of Taft v. Wildman, supra, seems to determine the question that if the order was in fact worthless, it need not be returned before the suit is brought. In the case referred to, the trial court charged the jury, as appears in the statement of the case, that (page 124) :

“ * * * if these certificates were supposed by the parties at the time they were assigned, to convey lands or to transfer a right to obtain lands, that the defendant in error was entitled to recover, inasmuch as the assignment of the certificates was made void by the laws of the United States, and vested no interest in him; and the rule of damages in that event would be $400, the amount at which the certificates were estimated by the parties, with the interest thereon; but if the certificates were received by the defendant in error under an agreement that he should take them at his own risk, whether they were of value or not, he was not entitled to recover.”

This was assigned as error in the Supreme Court and the court held that there was no error in that instruction to the jury.

The court say in the opinion on page 129:

“The law is: If C receive of D a thing represented to be valuable, and which C supposes is so, in payment of a debt, but which is in fact of no value, C may sue on the original demand for the consideration, as if no payment had been made, and quoad hoc, treat the thing received as no payment. This transaction was not a barter, however, or exchange of property, as presented in the record, but the sale of a farm, to be paid in cash, and certificates which would entitle the vendor to other lands, and as this part of the consideration failed, the court did not err, in our opinion, in saying a recovery might he had under the limitations and restrictions set out in the bill of exceptions.”

In the case of Fleig v. Sleet, 43 Ohio St. 53 [1 N. E. Rep. 24; 54 Am. Rep. 800], a check of one bank upon another was given in payment, and turned out to be worthless. The court say in the syllabus:

“To pay for a bill of goods, the buyer sent to the seller a check, drawn by one bank upon another, indorsed by the buyer to whose order the check was payable, and the seller, on receiving it, sent back the buyer a receipt acknowledging payment of the bill. At the time of sending the check by the buyer, and the receipt by the seller, it was supposed by the buyer and seller that it was good,.but in fact there were no funds of the drawer in the hands of the drawee subject to the payment of the check at the time it was drawn or afterward: Held, that in an action on an account for goods sold and delivered, a plea of payment cannot be maintained on the facts above stated.”

And the court say on page 55:

“Neither is there any doubt as to the fact that the parties agreed that the transfer of the check was in payment of the account. The sole question is, was the agreement under the circumstances set forth a valid contract, whereby the former relations of debtor and creditor, on account of goods sold and delivered, was in law extinguished?
“It is not controverted that where a debtor makes and delivers a check to his creditor in payment of an account, upon a bank where the debtor has neither funds nor credit, it is not a payment of the account, although the creditor receives it as such. In-such case, there is no satisfaction of the indebtedness; such check is valueless. * * *
“ Is there any difference in effect between the case put and one where the debtor indorses to his creditor a worthless check drawn by a third person who has no funds subject to its payment ? We think not. In the hands of the debtor before indorsement it was without value. From the act of indorsement a similar representation is implied, on the faith of which it is taken as payment by *the creditor. Between the debtor and creditor there is an accord, but no satisfaction. In law it is like payment in counterfeit money, or broken bank bills. The claim thus intended to be paid remains a subsisting cause of action.”

In 18 Am. & Eng. Enc. Law (1 ed.), 167, the general law is laid down and a large number of authorities cited to sustain it, as follows:

“A cheque, draft or promissory note of a debtor or of a third party, if not itself paid, does not constitute a payment, unless received by the creditor under an express agreement to accept it as an absolute - payment.”

In Benjamin on Sales, Secs. 729 and 780, we find this language:

“ The intention to take a bill in absolute payment for goods sold must be clearly shown, and not deducted from ambiguous expressions» such as that the bill was taken ‘ in payment ’ for the goods, or ‘ in discharge ’ of the price. Eord Kenyon said in Stedman v. Gooch that ‘ the law is clear that if in payment of a debt the creditor is content to take a bill or note payable at a future day, he cannot, legally commence an action on his original debt until such bill or note becomes payable and default is made in the payment; but if such bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer in his hands and who therefore refuses to accept it, in such case he may consider it as waste paper, and resort to his original demand and sue the debtor; and this dictum was quoted by Tindal, C. J., in Maillard v. Duke of Argyle, to show that the word ‘ payment ’ does not necessarily mean payment in satisfaction and discharge.
“ 730. The authorities in support of the rule that in the absence of stipulation to the contrary the negotiable security is only considered to be a conditional payment, defeasible on the dishonor of the security, need not be’ reviewed, as there is no conflict on the point.
“ The payment is absolute on the delivery of the bill, and takes effect from that date, but is defeated by the happening of the condition, i, e., non-payment at maturity.”

The law seems to be well set'tled in this state and elsewhere that the burden is upon the one claiming payment of this kind to show, and show. clearly, that such a paper was accepted in absolute payment and discharge of the debt; otherwise it will be held, as Benjamin says, “a conditional payment, defeasible on the dishonor” of the check, bill, order or whatever it may be.

The evidence in this case shows that after the citizens’ meeting was held, no funds were, in fact, ever collected, except possibly $50, to which I have referred, which was deposited in the bank; it does not appear that any formal action was taken at this citizens’ meeting. Several citizens said “ no doubt the fund could be raised; Mr. Weller could go on and erect the building,” etc., and such expressions were used at that meeting as are often used at meetings of that kind. When it became apparent that the building was to be constructed, the citizens evidently lost interest in the enterprise, so far as subscribing the $700 or any part thereof was concerned, and when Gordon & Company, having agreed to take the order, as they might take a check, note or draft, did take it and went out and undertook to collect it, they were unable to do so, there being no such fund, no committee of that kind and no way in which the order could be realized upon.

Now it will be observed that in this letter from the J. Weller Company to Gordon & Company they say that “ the citizens of Oak Harbor are to contribute $700 towards this factory, and we will give you an order on the committee for the $700, and in addition we will pay you in cash the balance of the $1,469.60.” They say to Gordon & Co. in substance and effect that the citizens of Oak Harbor will contribute this amount, and we will turn that over to you by virtue of an order or through the medium of an order which we will give you and you can collect it; instead of it being paid to us, it may be paid to you; the balance we will pay you in cash. They do not say in their letter, “ You are to accept this order in payment of the balance of the $700,” or “ in discharge of the balance.” They speak of this order as they might of any other chose in action, of a draft or check. They might have said, “We will pay you $769 in cash and we will give you a draft that we have, or a check on such a bank for the balance,” if it had been a draft, as it might have been, and it turned out that the bank was broken, or there was no money there to pay the draft, this would not have constituted payment. There is nothing, it seems to us, in this contract, or in the surrounding circumstances to show that the agreement on the part of Gordon & Company was that they would accept this order in full payment of this amount of money and discharge this indebtedness. The burden was upon the J. Weller Company to show this. Gordon & Company, after receiving the order, did all they could reasonably do toward collecting it, and it is undisputed that there was nothing with which to pay the order.

It is said that Gordon & Company knew of the facts and circumstances as well as the J. Weller Company; that one of the firm was present at this meeting. It is true that one of the firm was there as a citizen of Oak Harbor and took some part in the meeting. But the fact that a member of the firm of Gordon & Company had this knowledge as to this meeting and what was done, would not vary the contract, this written contract that was made, or be sufficient to show that Gordon & Company accepted this order in payment of this debt. The rule seems to be thoroughly established that nothing will pay a debt except money or something of value — its equivalent in value; that worthless papers, worthless checks, notes, orders or drafts will not pay debts, unless the parties have expressly agreed and it clearly appears that they have agreed that they will take such paper at their own risk, and in payment of the debt.

We think that the court ought to have excluded the oral testimony as to what was said before the signing of this acceptance, and that the court went farther than it should have gone in submitting to the jury the construction of the contract; it seems to us, the contract being in writing, that it was the duty of the court to construct it. But the jury reached a correct conclusion and construed the contract properly, so that plaintiff in error was not prejudiced.

We have gone through the record with care, and there is nothing in all the testimony that was offered as to what occurred at the time the contract was made or the order was given to Gordon & Company that shows that they accepted the order in payment of this debt or in discharge of it. We think that they took the order as they might have taken other paper or evidence of indebtedness as a medium of getting their pay, and if it had been paid it would have satisfied the amount that it called for. Being worthless it did not satisfy it; and being of no value they were not called upon to return it or offer to return it before this suit was commenced.

With this view of the case it is not necessary for us to discuss the objections that were made to the charge of the court or any other question in the case. The verdict of the jury was correct and the judgment was right. Therefore the judgment of the court of common pleas will be affirmed.


source: Caselaw Access Project

author: COOK, J.

license: Public Domain

text:
    WILLS.
    [Lake (7th) Circuit Court,
    January Term, 1903.]
    Burrows, Laubie and Cook, JJ.
    A. K. Carrel et al. v. Perry Carrel, Jr., et al.
    “ Clearly and Manifestly ” as Used in Sec. 5969 Rev. Stat.
    The words “ clearly and manifestly ” as used in Sec. 5969 Rev. Stat. should receive but little consideration in construing wills; and where it reasonably appears from the will that the testator intended to devise after-acquired lands, the intention should be given effect notwithstanding these intensives.
    Heard on Appeal.
    A. G. Reynolds, for plaintiffs.
    G. W. Paul, E. F. Blakley and M. A. Tuttle, for defenuams.
   COOK, J.

This action comes into this court by appeal and is prosecuted by the plaintiffs against the defendants to quiet the title to certain real estate, situate in the village of Willoughby, this county.

Reese Y. Carrel, the father of plaintiffs and the grandfather of defendants, made his will on October 25, 1876, and died March 17, 1888. His will was duly admitted to probate.

By the first item of the will, he directed that all his debts and funeral expenses be first'paid out of his personal property.

By the second item he gave, bequeathed and devised all the balance of his personal property, after payment ot his debts, funeral expenses and costs of administration, as provided in first item, and all his right, title and interest in his mill property in Kirkland, and all his right, title and interest in the store property in Willoughby to his children, absolutely.

By the third item of his will he gave and devised all his lands, tenements and real estate, wherever the same might be located or found, excepting and reserving therefrom his interest in the mill property and store property, as provided in the second item of his will, to his children for life with remainder to their children, and no change was to be made in the entailed estate for five years, during which time the children were to occupy the same. At the time of the making of the will the testator had owned for a number of years, an undivided one-half interest in a lot of ground in the village of Willoughby, upon which was a frame store building in which he conducted a store and which, from the time of purchase, was always known and designated by him as his store property and was so designated generally by the people in the village.

Three months after making the will he bought a strip of land of the same depth as original lot immediately south of the lot upon which the store building stood; and a month later he bought another small strip of same depth, south of the last purchase; and in eleven months from the last purchase he purchased from his cotenant the undivided one-half of the premises upon which the store building stood. Soon alter the last purchase, the testator tore down the frame store building and erected upon the three parcels a brick block; part of which block was used for his own store business and the balance of it he leased to different tenants. After the erection of the block the testator continued to designate the premises as his store property and did so up to his death, and it was also so designated by the villagers as before the improvement. The testator sold his interest in the mill property, but whether before or after the building of the brick block upon the Willoughby land does not appear.

Under this will the plaintiffs claim that they are the absolute owners .of all the premises in the village of Willoughby known as the store property, while the defendants claim that the plaintiffs are only the absolute owners of the undivided one-half of the lot owned by the testator at the time of making the will and that they have but a life estate in the premises acquired after the making of the will.

Section 5969 Rev. Stat. provides as follows:

“ Any estate, right, or interest, in lands or personal estate or other property acquired by the testator after the making of his will shall pass thereby, in like manner as if held or possessed at the time of making the will if such shall clearly and manifestly appear by the will to have been the intention of the testator.”

It must be conceded that if the testator had owned all the property in Willoughby at the time of making the will, that the term “ store property ” would have been sufficient to pass title to the entire premises. He always designated it as his store property. It was so known generally in the village. There was built upon it in a compact form, a brick block which was used for store purposes; and under such circum^ stances the term “ store property ” would be considered in the construction of his will, in the same manner as the use of the term, my “ dwelling house,” “homestead premises,” “ country residence,” “ business block,’’ etc. Page Wills (1901), Sec. 488; Webb v. Carney, (N. J. Ch.) 32 Atl. Rep. 705.

But it is said it does not clearly and manifestly appear from the will that it was his intention to devise the after-acquired parcels that went to make up the store property at the time of his death.

The words “ clearly and manifestly ” must be interpreted with reference to the general rules in regard to the construction of wills, and when so considered these intensives add but little to the force and effect of the section, and make it but little, if any, stronger than it would be if they had not been used.

In Brimmer v. Sohier, 55 Mass. (1 Cush.) 118, 132, it is said;

“ It is not supposed that the intensives ‘ clearly and manifestly,’ as used in this section, can have any well defined or precise effect in the construction of wills. They are too vague and indeterminate to form a rule of much practical use. The statute requires, undoubtedly, that the intention of the testator should be fairly inferable from the will, but it does not require an express declaration. The intention is a matter of deduction or inference from given premises.”

It is held in that case:

“ Under Revised Statutes, 62, Sec. 3, which provide for the passing, by will, of after-purchased real estate, ‘ if such shall clearly and manifestly appear by the will to have been the intention of the testator,’ it is not necessary that the intention should be manifested by an express declaration; but it is sufficient if it can be inferred from the several provisions of the will; and the true question seems to be, whether the testator intended to die testate as to all the property which he might leave, or whether he was content to die intestate as to a part, and to leave it to be distributed according to law.”

In Winchester v. Forster, 57 Mass. (3 Cush.) 366, after referring to Brimmer v. Sohier, supra, it is held:

“It is a sufficient manifestation of the intention of the testator that real estate acquired by him after the making of his will shall pass thereby, pursuant to Rev. Stat., c. 62, Sec. 3, where it appears by the whole scheme and tenor of the will, that he intended to make a full and entire disposition of his whole property, real and personal.”

In that case it is said by Shaw, C. J., p. 370, who delivered the opinion:

“ The words of the statute are, ‘ if it shall clearly and manifestly appear,’ etc.; as was said in the case of Brimmer v. Sohier, 1 Cush. 132, ‘ It is not supposed that these intensives can have any well defined or precise effect in the construction of wills ; they are too vague and indeterminate to form a rule of much practical use.’ We are to inquire, then, what is the true construction of this section ; and if the object of the statute was to remove a technical difficulty and to give effect to the intention of the testator, all that can be required is, that, taking the whole will and considering it with reference to the established rules of exposition, such an intent is shown; if so, the intent is manifest and clear.”

In James v. Pruden, 14 Ohio St. 251, it is held:

“ Lands acquired after the making of a will disposing of all the testator’s property -yT^d at his death for specified purposes, will pass under its provisions.'

Ranney, J., in the -^pinion says, p. 253 :

“ By Sec. 54 of the ‘ act relating to wills ’ (2 S. & C. 1626), it is expressly declared that after-acquired property shall pass, ‘ if such shall clearly and manifestly appear by the will to have been the intention of the testator.’ For the reasons given in Smith v. Jones, 4 Ohio 115,121, a will should probably be construed with somewhat more liberality here, upon a question of this character, than has been customary in the English courts. It very seldom happens, that a man who goes to the trouble of making a will, intends to die intestate as to any of the property that he may own at the time of his death. And when it clearly appears that the testator intends all the property he owns at his death to be used and applied for specified purposes and the changes between the will and his death have simply consisted in converting it from one description of property into another, there can be no danger of interfering with his intentions, by holding it all subservient to the accomplishment of such purposes. Indeed, every line of this will looks to his death, and the situation of his property at that time, as the starting point in his dispositions. It is then that his debts are to be paid, and it is then that his wife is to take, either for life or otherwise, all the residue of his ‘ personal and real estate and property,’ of every description ; or, if she is not then living, that it is all to go to his heirs as though the ‘ will had not been made.’ ”

The intention of the testator, therefore, is the thing to be ascertained. Dofes it fairly show that he intended to devise this after-acquired ntsl estate to his children under the second clause of the will.

The whole tenor of the will shows that the testator had reference to his death, and that that was the time when the will was to speak, and the whole scheme of disposition is that all his property owned by him At his death was to pass under the will — “ It is my will that my debts, funeral expenses and cost of administration be paid out of my personal property. All the residue of my personal property of whatever kind character or description, together with all my right, title and interest in the mill property in Kirtland, and all my right, title and interest in the store property in the village of Willoughby, I give, demise and bequeath to my children (naming them) share and share alike, and all my lands, tenements and real estate, wherever the same may be located or found, excepting and reserving therefrom my interest in the mill property and store property, I give and demise to my children for life with remainder to their childrenwith the further proviso that the children were to occupy such lands for the period of five years from his death, during which time no change was to be made in the same. Is it not evident that the intention of the testator was that the children were to have the mill property, and store property absolutely ? These properties were for business purposes; they, could be used or sold as to them might seem best; leaving them untrammeled in the disposition of the same which is ordinarily the most advantageous manner of holding business property. The farms might be entailed without injury and would be safe to his grandchildren, but the business property was not to be tied up with any conditions whatever.

The testator, after making the will, sold his interest in the mill property, which went to his children in fee. In the purchase of the small parcel of land immediately adjoining his store property and the building of the block, the testator must of necessity have used a portion of his personal estate, which also went to the children under the will, or the proceeds of the mill property. As said in James v. Pruden, supra :

“When it clearly appears that the testator intends all the property he owns at his death to be used and applied for specified purposes, and the changes between the will and his death have simply consisted in converting it from one description of property into another, there can ,e no danger of interfering with his intentions, by holding it all subservient to the accomplishment of such purposes.”

It should be observed that the claim of defendant is not that the testator died intestate of the after-acquired property, but that the children own the remainder in fee by virtue of item three of the will. It is true that it has been frequently held that a residuary clause disposing of all the residue of the estate makes a strong presumption that the testator intended to devise after-acquired real estate, and with other provisions of a very slight character tending to show such intentions, and indeed, in some cases, without any other provision, would make the statute, as to after-acquired property, effective. But what is there in this case to make the third item in this regard more effective than the second ? None whatever. Indeed, whatever intention is shown is that if the after-acquired property passes at all by the will it must be under the second item; and if it does not pass by the second item, then the testator died intestate as to it, and in that event the plaintiffs are the owners of the entire estate <in the store property by descent. The cross-petition of defendants is dismissed and plaintiff’s title quieted.

Decree accordingly.


author: PARKER, J.

text:
    INSURANCE — BENEFICIAL.
    [Lucas (6th.) Circuit Court,
    January Term, 1903.]
    Haynes, Parker and Hull, JJ.
    Elizabeth Crockett v. Order of the Red Cross et al.
    L Beneficial Insurance — Requisites of Notice of Assessments.
    Where the constitution of a beneficial order provides that all members shall be notified of assessments, notice of an assessment must be in fact given to a Member before forfeiture of his rights as such will result from failure to pay the assessment, and the mere placing in the mails of a notice addressed to a member is not sufficient.
    8. Right» of Beneficiary not ■ Lost by Declarations of Certificate Holdea.
    The m~re fact that a policy-holder in a beneficial order expresses dissatisfacif&n on account of “ double header ” assessments, and an intention to quit t'Sie order and not pay any more, while it may be competent evidence upon C-Ortain issues, cannot alone deprive the beneficiary of rights under the certificate.
    Heard on Appeal.
    James M. & Walter F; Brown, for plaintiff.
    Roy Spencer, for defendant.
   PARKER, J.

This case comes into this court on appeal. The plaintiff says that the defendants named [The Order of the Red Cross; The Knights of the Red Cross; The Subordinate Commandery, known as The Toledo Commandery No. 4, Order of the Red Cross, and The Knights of the Red Cross] are corporations under the laws of Michigan and Ohio; that the business of the companies is chiefly fraternal insurance— class insurance, as distinguished from the old line method of insurance; that James K. Crockett in his lifetime was a member of all the associations named, by virtue of his membership in the Toledo Commandery No. 4 of the order; that on September 24, 1888, the order issued to him a beneficiary certificate, for the sum of $1,000, payable to the plaintiff, as beneficiary, upon the death of the insured, if he should comply with the rules of the order with respect to the payment of assessments and otherwise hold and keep himself in good standing in the order; that he complied with all these requirements, and was in good standing at the date of his death, which occurred on September 23, 1900; but that the defendants refused to recognize her claim under this certificate, and therefore she prays that they may be compelled to levy, collect and pay over to her such assessments as will make up to her the amount promised in the policy, to-wit, $1,000.

Various issues presented by the answer have been eliminated during the trial of the case, so that the only issue remaining is that presented by the averment of the answer, that the rules of the order required that:

“ All assessments must be paid on or before the twenty-eighth day of the month, and any member failing to pay the assessment by midnight of the date tor which the assessment is called, becomes thereby ipso fat■nsspended from all benefits of the beneficiary fund of the order; tffVon or about the first day of August, 1900, two assessments were levied and called for under said revised constitution and laws, and that notice, as provided under the laws of said order, was mailed to each and every member of said The Order of the Red Cross and Knights of the Red Cross and to the said James K. Crockett; that the said James K. Crockett failed to pay said assessments on or before midnight of the twenty-eighth day of August, 1900, and became thereby ipso facto suspended from all benefits of the beneficiary fund of said order.”

It will be observed that the answer does not contain an averment that this notice was in fact served upon James K. ■ Crockett or that he ever received it, nor does it advise us who it is claimed mailed the notice to him. To the answer and supplemental answer a reply was filed by the plaintiff. I read from the reply :

“Plaintiff says that she denies that deceased ever received any legal notice of the pretended assessment made payable August 20, 1900, and denies that any such notice was ever issued to the deceased.”

In so far as the denial of +he receipt of the notice is concerned, it is a denial of something not sverred in the answer; but the case has been tried as if the issue were piesented here whether the notice if issued and mailed, was ever received by James K. Crockett in his lifetime. It appears that in the course of the business of the order, it was customary and perhaps required, that a notice should be issued on the first' of each month of the assessments payable upon the twenty-eighth of the month, and a notice, as averred in the answer, was issued upon August 1,1900, calling for the payment of assessments Nos. 28 and 29, payable August 28,1900, and another notice was issued upon September 1,1900, calling for assessment No. 30, payable September 28,1900; Mr. Crockett having died upon September 23,1900, the notice of September 1,1900, was the last one issued before his decease. According to the testimony of his wife, the notice of September 1, 1900, was found among his papers after his decease. The notice of August 1, 1900, was not found there, and she seems to have had no knowledge of it. The testimony shows that Mr. Crockett was rather lax and dilatory about paying his assessments; that he had not been in the habit of paying promptly ; that he" had paid some days after the time fixed for payment, to-wit, the twenty-eighth of the month, on a great many occasions, during the continuance of his membership in the order. Among the laws of the order, printed in a little book containing the revised constitution and laws of the order introduced in evidence, Sec. 11, appearing at page 77 of this book, contains the provisions:

“ All assessments must be paid on or before the twenty-eighth day of the month, and any member failing to pay the assessment by midnight of the date for which the assessment is called, becomes thereby ipso facto suspended from all benefits of the beneficiary fund of the order.” * * *

Section 12 on page 78 provides :

“ Members who become suspended for the non-payment of dues and assessments, may be reinstated upon compliance with all of the following conditions, and not otherwise, to-wit: By the payment of all arrears for which they become suspended, and all dues and assessments which have subsequently become payable, and upon the consent of a majority of the members of the commandery to which the said suspended member or members belong. Provided also, that no reinstatement shall take effect until the supreme treasurer’s receipt for the arrears has been received by the commandery, and a notice thereof received by the supreme scribe. Members who are suspended for a period of one month and less than three months shall be required also before being reinstated, to sign a certificate of good health, in form as follows :
*' To the Supreme Commandery of 1 the Order of the Red Cross and Knights of the Red Cross:
“ I,--to whom was issued beneficiary certificate No.as member of-commandery -, having been suspended from all rights, benefits and privileges of the order by reason of -and desiring to be reinstated in the order, do hereby certify that I am at this date in sound bodily health, and I agree that my reinstatement shall be valid and binding only upon conditiem that this statement is true in every particular.
“ Signed ■ .........................
“ Attest Hall of--Commandery No.-■-
“ This is to certify that--was duly reinstated by a vote of this commandery on the night of-18—
“-'--Scribe.”
“ Section' 18. Members suspended from the beneficiary fund of the order for a term exceeding three months, shall again be obliged to undergo a medical examination upon the prescribed form of the order, which must be approved by the supreme medical examiner. They shall then receive a new beneficiary certificate, and be in every way received as a new member.”

It appears that Mr. Crockett had never been in arrears for as much as thirty days, and that by paying his arrearage in each instance to the treasurer of the local commandery, he was regarded and treated as reinstated; and that seems to have been the universal practice so far as this local commandery was concerned. If a member was not as much as thirty days in arrears, all that was required was that he pay his arrearage ; thereupon he was restored to good standing. The provision that the suspended member must pay all dues and assessments, and also obtain the consent of a majority of the members of the commandery, to which he belonged, must be construed in the light of this custom, and the construction, in view of this practice, that we give to this provision is, that the member obtains the consent of the membership of the local commandery to his reinstatement, by paying his dues and assessments within thirty days to the treasurer and no formal action of the body denominated the local commandery, in session, is required. It will be observed that the assessment in question being payable upon August 28,1900, and Mr. Crockett having died upon September 28,1900, he was not more than thirty days in arrears at the time of his decease, and that he was in position to have become fully reinstated merely upon the payment of the double assessment of August to the treasurer of the local commandery, even if he had been duly served with notice of the August assessments.

It appears from the evidence that Mr. Crockett during the month before his decease had expressed some dissatisfaction with the treatment he had received at the hands of the order, and some dissatisfaction with these double assessments that had been coming in from time to time, “ double headers,” as he called them; that when they came in at the rate of two per month, he seemed to think they were too much of a burden and he expressed dissatisfaction and an intention to quit the order and not pay any more. This mere expression of a purpose to quit the order, while proper evidence in the case on certain issues presetited, would uot of itself deprive him or the beneficiary of the rights they might have under the certificate.

The real questions in this case, and the only important questions, as we view it, are, first, the question of fact whether Mr. Crockett received the notice of August 1, 1900 ; and second, the question of law whether the actual receipt of the notice by him was necessary in order to place him in default, so that he might be deprived of the benefits accruing to a member. I will first discuss the question of law that I have mentioned as being involved. Section 77 of the constitution, appearing at page 55 of this book, provides the method of service of notice through subordinate commanderies until an official journal shall be published, and tha* thereafter:

“ Assessment notices shall be printed therein and a copy of said journal sent direct from the office of publication to each beneficiary member of the order, which shall be in every way a legal notice of assessments, and no other notice shall be given to members.”

To the same effect is Sec. 10 of the laws, appearing at pages 76 and 77 of the book of laws. Now it appears that after this provision was adopted, as part of the law of the order, an official organ of the order was published, and that thereafter that official organ containing notices of the assessments was sent out to the members, and that that was the only mode of service of notice of the assessments. It will be observed that this law does not state how this official organ is to be sent out, or by whom; that is not provided for; but it is provided that it is to be sent direct to the member. A construction of this provision that would make the simple mailing of the notice without evidence of its receipt by the member sufficient to put him in default, so that his rights as a member would be ipso facto suspended or terminated, would not be con* sistent with the general principles governing notices as a predicate of a forfeiture,, and would not be favored by the law. Such notice could not well be regarded as being sent direct to the member, if it had been merely started on its way toward him through the mails as second class matter; and the course pursued by this order seems to have been to mail his official paper of the order to the members as second class matter. A provision of the constitution, preceding this as to the sending out of the official organ of the order, requires that the financier of the local organization shall notify all members of the assessments and when in arrears for dues.” The provision in the by-laws as to the form of the' notice is as follows, Sec. 10, page 76 :

“ Whenever the supreme scribe forwards notices of assessments to the subordinate commanderies, the scribe thereof shall impress the seal of the commandery on said notices and deliver them to the financier for distribution, at the same time notifying the supreme scribe of the date of such delivery.”

This provision of the constitution as to the financier notifying the members, we have no doubt requires actual notice to the members, and we cannot believe that the mere mailing of the official paper of the order when it was published was intended to be a substitute for the actual notice to the member. We think rather that while the method of notification was to be changed, the very gist and spirit of the provision that the members were to be notified, was not affected by the adoption of this new method.

A resolution was subsequently adopted by the order with respect to the manner of serving notices, which was to'take effect after July 1, 1899, and we think that this resolution is to be regarded as part of the law of the order in force upon that subject at the time this notice of August 1, 1900, was sent out and thenceforward; therefore, it is applicable to the case in hand. Thereafter notice through the Gazette, the official organ, was not requisite or proper. The resolution is as follows:

“ Resolved that the Gazette be discontinued and assessment notices be mailed direct to each member of the order in folder form by the supreme scribe, commencing July 1, 1899.”

The folder was to be thereafter sent out as a substitute for the notice provided for in the Gazette. While the provision was not clear as to how the official organ was to be sent out, or by whom, this resolution provides explicitly that the folder is to be sent out by the supreme scribe and is to be sent by mail. Whether this provision was intended to be regarded by the order as the only notice to be sent out— whether no other notice was to be given to a member is not clear. It seems to us that the laws of the order are hardly capable fairly of a construction that this folder notice is to be the only notice to be sent to a member ; that the mailing of such a notice is to answer all the purposes of a legal and valid notification to the member of his assessments. We are rather of the opinion that after the adoption of this resolution the provision that the financier of the subordinate commandery should notify the members of assessments by the distribution to them personally of notices under seal was revived, and that the folder notice to be mailed by the supreme scribe was an additional notice, not dispensing with the actual notice that is to be given by the financier of the subordinate commandery. I say that is our construction of the laws after the adoption of this resolution. That is our view of the effect of the adoption of that resolution. But the order seems to have acted upon the’ other theory of construction, namely, that the folder notice sent out by the supreme scribe was to fulfill all the requirements of a notice. Assuming that the construction put upon this resolution by the order is the true construction, adopting that construction for the purpose of this case, though not giving it our full approval, we adopt and apply .to such folder notice, what we have said with respect to the notice in the official organ sent to the member, to-wit, that the mere mailing thereof addressed to the member cannot be deemed a compliance with the requirement of the law that the member shall be actually notified of the assessment before he can be considered as in default and his rights as a member suspended, forfeited and terminated. We have no doubt but the order might lawfully provide that a notice thus mailed to members should be sufficient to put them in default, though they failed to receive it; but we believe the courts do not and will not so construe a provision for notice in a case of this character unless the language is so clear to that effect as to admit of no other reasonable construction.

I will now call attention to a few authorities upon this question. We had before us recently the case of Hayes v. Yost, 24 O. C. C. 18, in which was involved the. question of how a notice provided for by Sec. 2807 Rev. Stat. with respect to equalizing boards and their transactions, where they are authorized to raise the valuation upon property, for purposes of taxation, must be served upon the owners thereof. The provision then under consideration is to the effect that such addition shall not be made to such lists returned without the board having first given reasonable notice to the owner of the property to be revalued. The board in that instance mailed a notice to Mr. Hayes. It did not appear that he had received the notice mailed. It was insisted in behalf of the taxing officers that the mailing of the notice was sufficient. Judge Haynes, in the course of his opinion, had this to say upon the subject, page 25:

“The statute provides that the party shall be given reasonable notice. He is to have a notice that is reasonable, notice as to the time and place, so he may have an opportunity to appear. Notice is to be given to him. The court below found that a notice put in the postoffice' directed to him was sufficient. We are unable to agree with the court in that respect, because we find decisions of the Supreme Court of this state and other courts that lead us to an opposite conclusion. And because, in reason, if he is to have notice, it should be given to him in person, served upon him, so that the board, before it acts, may know that he has received it and that it has jurisdiction over him.
“ In the case of Moore v. Given, 39 Ohio St. 661, the second syllabus says:
Where a statute requires notice of a proceeding, bat is silent concerning its form or manner of service, actual notice will alone satisfy such requirements.’ ”

Now, that is the law upon the subject of a statutory notice. But we have authorities directly in point upon the question of notices of the kind provided for in the laws of this order. I call attention to the case of Castner v. Insurance Co., 15 N. W. Rep. 452 [50 Mich. 273], It is said in the syllabus:

“ The charter of a mutual insurance company provided that members should be notified of assessments by circular of verbally, and that if they did not pay within a fixed time' they would forfeit protection through their policy: Held, that such a personal liability could not attach from merely mailing the notice, if it was not actually received.”

The question is discussed at page 454, where the court say:

“ As to the second point, was the fact of mailing the paper which contained the information for the member sufficient of itself to constitute the notification required by the charter? The proposition here is that it makes no difference whether the member ever gets knowledge of the assessment upon him or not, provided notice of it is regularly mailed to to him, and therefore, the contention is to be viewed on the assumption that he does not get it. The language of the charter is that the member is to be ‘notified by the secretary or otherwise, either by circular or a verbal noticed Sec. 16. The consequences to flow from this notification are admitted to be important.
“A fixed personal liability is to depend upon it; and further, in case of failure to respond by payment of the sum assessed as communicated by the ‘notice ’ during a given number of days, the member is to staiid unprotected by his policy and wholly without remedy or redress in case of loss. In principle it is not so easy to distinguish the nature of the required notification from the office and object of service of process, and there would seem to be as much reason for real notice in the case in question as in the case of an action. The destruction of a mail, or accidents preventing the delivery of matter, or even a considerable delay, might at any time, without fault of the persons insured, eventuate in widespread loss and injustice.
“No construction, open to so much objection, should .be admitted, unless rendered necessary by the terms of the charter; and they do not require it. On the contrary, they contemplate that the members shall have real information of the assessment. The provision is not that notice or information shall be mailed or sent or forwarded. The members are to be‘notified’ — that is, informed; to have made known to them the fact of the assessment; and this is permitted to be done either by oral statements to the members or by delivery to them of writtea statements through the agency of the postoffice or some other. It follows that the second ground of defense cannot be supported.”

Also to the case of Wachtel v. Widows’ & Orphans’ Soc., 84 N. Y. 28 [38 Am. Rep. 478], Also to the case of McCorkle v. Benevolent Assn., 71 Tex. 149 [8 S. W. Rep. 516]. I will read part of the syllabus in that case:

“ The by-laws of the T. B. A. required that notice of its assessments shall be sent to each member and that ‘ any person who shall fall in arrears for dues or contributions, after thirty days’ notice, shall cease t© be in good standing and shall forfeit all rights and claims to any and all benefits of the association.’ It was the custom of the officer charged with the duty to mail such notice to each member: Held, that a reasonable construction of the by-laws required that notice be in fact given to a member before a forfeiture would result from a failure to pay dues, etc., and that mailing to a member through the postoffice was not such notice.”

We, therefore, conclude that it devolved upon the order in this case to aver and establish by a preponderance of the evidence, at least, that ,the folder notice of the assessment falling due August 28, 1900, was not merely mailed to James K. Crockett, but that he actually received a copy thereof. I have already called attention to the fact that the answer fails to aver that he received a copy, and, in our opinion, it was, therefore, so far as that defense is concerned, open to a general demurrer. But because of the averment in the reply to which I have called attention, and because of the manner which the case has been tried and presented, we proceeded to consider this defense upon the facts. Now the evidence that this notice was ever actually mailed is not clear nor satisfactory. The supreme scribe, by whom the notice is to be mailed, says that as a rule he did not mail these notices; that he did not address the envelopes containing the notices, but that was done by a secretary or employe in his office. He cannot tell whether this notice was actually mailed to Mr. Crockett; he has no recollection or knowledge upon the subject; and the employe in his office is not called upon to testify.

But it is urged on behalf of the association that Mr. Crockett must have received this notice because in a certain conversation he spoke of the August assessments, the “ double headers.” It is said that he spoke particularly of these August assessments in a conversation with Mr. Lee, the scribe of the local commandery, but a few days before his death, complaining of the “ double header,” declaring that he would not pay any more assessments, and saying to Mr. Lee that he might strike his name from the roll of membership. It is doubtless true that Mr. Crockett had knowledge of the August assessments. How he obtained this knowledge, we are not advised. He might have been apprised of the fact in various ways. But we hold that it devolves upon the order to show that he was served with this folder notice or that he received it, in order to put him in default; and the fact that the making of such an assessment had come to his knowledge in p. roundabout way is not sufficient basis upon which to predicate a forfeiture of his rights and interests in the society.

Mr. Lee testifies that during this conversation Crockett had a paper in his hand, and that in speaking of the “ double header ” for August, he flourished a paper, or called attention to a paper and wanted to know if the assessments mentioned there or spoken of there were correct, if it was true that such assessment had been made for August. Mr. Lee does not pretend that he examined this paper. He does not say that he had it in his hands. He does not say that it was one of these printed blank or folder notices. If it were a printed blank notice of the kind, that Crockett had been in the habit of receiving, it is hard to understand why he should have made any such inquiry of Mr. Lee, because the notice upon its face is perfectly clear. He had been in the habit of receiving such notices for a long time, an.d he would have understood as fully and perfectly as Mr. Lee did, what was stated therein, and that it called for the payment of a double assessment on August 28. It may have been a mere memorandum made by somebody else or by himself, of the fact that there was a double assessment for August.

The mother of Mr. Lee, who was present part of the time on the same occasion, also says that Mr. Crockett at the time he was speaking of the assessment, held a paper in his hand. But she does not attempt to describe the paper. It is very significant that upon the trial of this case in the court of common pleas, neither Mr. Lee, nor his mother made any reference whatever to this paper or to any paper having been in the possession of or having been shown by Mr. Crockett upon that occasion.

But laying that aside, we are not satisfied by the testimony of Mr. Lee, or his mother, or by any other evidence in the case that Mi Crockett had come into possession of a notice of these August assess' ments, such as the supreme scribe was required to send out, and that therefore he did not have the actual notice emanating from the order that is required to put him in default so that his rights might be forfeited.

A few days after this interview with Mr. Lee, Mr. Crockett, who was a very old man, suffered a severe injury and lingered along in misery for a few days, then died.

Some interesting questions are presented and discussed as to whether there was not a waiver of any default upon the part of Mr. Crockett by certain conduct upon the part of the local organization; as to whether the organization as a whole is not estopped by certain misleading statements made to one who undertook to pay these assessments on behalf of Mr. Crockett, or on behalt of the beneficiary. But we deem it unnecessary to discuss these questions. It is sufficient that we have found that Mr. Crockett never received the actual notice which put him in default; and therefore we find that the plaintiff is entitled to the relief prayed for in the petition, and judgment will be entered accordingly.


author: MARVIN, J.

text:
    RAILWAYS — PASSENGER AND CARRIER.
    [Cuyahoga Circuit Court,
    January 26, 1903.]
    Caldwell, Hale and Marvin, JJ.
    Lake Shore & Michigan Southern Ry. Co. v. Samuel C. Hotchkiss.
    1. Person Traveling on Freight Train on “Drover’s Pass” a Passenger'
    A person in charge of live stock, traveling upon freight trains upon a “ drover’s pass,” while going along the tracks of a railway company in order to get on board of the caboose of the freight train upon which he is to ride, is a passenger of such railway company and entitled to all the rights thereof.
    2. Negligence in Starting Train.
    Where the evidence in an action for personal injuries against a railway company shows that defendant’s railway is double tracked and that plaintiff, who had a “ drover’s pass,” which entitled him to ride upon its freight trains, after requesting the engineer of the freight train upon which he was to ride not to start the train until he reached the caboose, proceeded along the beaten path between the tracks toward the rear of the train, and the engineer, with full knowledge that a train not in sight when plaintiff left the engine, was approaching at a high rate of speed, started the train, and plaintiff, not observing the approaching train until it was less than one hundred feet from him, in endeavoring to reach the caboose along the space four feet wide between the two moving trains, was struck by a car and injured, all questions as to the negligence of the parties are for the jury, and a request by the defendant that the j.ury b_- instructed to return a verdict for the defendant will properly be refused.
    8. Degree of Care Required of Person Upon Track — Contributory Negligence.
    A person walking between the tracks of a double track railway beside a moving train, ujwon discovering the approach of a train upon the other track, must exercise ordinary care to prevent injury to himself, and go to a place of safety if there is reasonable opportunity, and a failure to do so constitutes contributory negligence.
    Error to the court of common pleas.
    Brewer, Cook & McGowan, for plaintiff in error.
    Kline, Carr, Tolies & Goff, for defendant in erxoc.
   MARVIN, J.

The parties in the court of common pleas were the reverse of what they are here. In this opinion the terms plaintiff and defendant refer to the parties as they were in the court of common pleas.

On August 19, 1899, the plaintiff made a contract with Thomas M. King, receiver of the Pittsburg & Western Railway Company, he being in the operation of the road of said company, by which two carloads of live stock were to be transported for the plaintiff from Middlefield, in Geaugá county, Ohio, to East Buffalo, in the state of New York, over the road operated by said receiver, and connecting lines. The only connecting line over which this stock was to be transported was the line of the defendant. The contract, among other things, had the following provisions:

“ That whenever the person or persons accompanying said stock under this contract to take care of the same shall leave the caboose and pass over or along the cars or track of said .carrier, or connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither the said carrier, nor its connecting carriers, shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock to take care of the same under this contract.
“And it is further agreed by said shipper that in consideration of the premises and of the carriage of a person or persons in charge of said stock upon a freight train of said carrier, or its connecting carriers, without charge other than the sum paid or to be paid for the transportation of the live stock in charge of which he is, that the said shipper shall and will indemnify and save harmless said carrier and every connecting carrier, from all claim, liabilities and demands of every kind, nature and description, by reason of personal injury sustained by said person or persons so in charge of said stock, whether the same be caused by the negligence of said carrier or any connecting carrier or any of its or their employes or otherwise.”

The two cars were loaded with live stock at Middlefield on said August 19, and on the morning of August 20, about three o’clock, the train' of which said cars formed a part reached Painesville, on the line of the defendant where the cars were to be taken into a train on the defendant’s road. The plaintiff accompanied these cars and was to go on with them in charge of said live stock to their destination at East Buffalo. The plaintiff went to the station of the defendant and reported his cars as having arrived, and a locomotive engine of the defendant was sent out to switch these two cars onto the defendant’s line of road and connect them with a freight train to go east on its line. To get to that part of the defendant’s line of road where these cars were to be attached to the east-bound train of the defendant a considerable distance had to be traveled, and, at the invitation of the engineer of the locomotive which did the switching, and which was the locomotive which was to haul the train east, the plaintiff rode with the engineer on the engine. This same engineer remained with the engine to take the train east.

When the cars containing the plaintiff’s live stock were properly in the defendant’s train, the engineer stated to the plaintiff that, he must now go back to the caboose of that train to ride. The defendant’s line has a double track. The trains going to the east use the northerly and those going west the southerly track. The plaintiff, upon receiving this notice from the engineer, alighted from the locomotive on the north side, passed around in front of the engine to the south side and there had a conversation with the engineer, the substance of which was that as this train contained some sixty cars it was a long distance to the caboose, and he cautioned the engineer not to start his train until he (the plaintiff) should have time to reach the caboose. To this the engineer replied that if he did start the train he would wait until the plaintiff had nearly reached the caboose and would then start so slowly that he would have no difficulty in getting upon the car.

The distance between the north rail of the southerly track and the south rail ot the northerly track was the usual distance of about seven feet. Between these tracks was a hard, good path for walking and one which those employed about these yards were accustomed to use. On the north side of the north track the condition of the ground was much less favorable for walking, though one could without very great inconvenience walk along on the north side. The plaintiff started west toward the caboose, on the south side of this train, between the two tracks. If freight cars were standing on each track opposite to each other the distance between the cars would be about forty-seven inches. The engineer knew that the plaintiff had taken this pathway between the two tracks for the purpose of reaching the caboose. From the point where this engine stood one could see to the east along the tracks for a long distance. There was no west-bound train coming in sight of the plaintiff when he, started to walk toward the caboose. When he had gone some distance to the west, perhaps half way from the engine to the caboose, a freight train coming from the east at from thirty to thirty-five miles an hour came in sight of the engineer of this east-bound train. The plaintiff, hurrying on to take his place in the caboose, did not look around to see whether anything was coming on the south track. When, however, he had got within three or four cars of the caboose, he heard some unusual noise, and looked over his shoulder and saw the westbound train coming at a distance, as he thinks, of from seventy-five to one hundred feet from him. Of course, this estimate is necessarily somewhat indefinite. At this time the east-bound train, which he was to take, was moving slowly, the engineer having just before started, as he had said to the plaintiff that he would. The plaintiff hurried on toward the caboose, and just before reaching it was struck by a car in the west-bound train and injured. He brought suit against the defendant to recover damages for this injury, charging that such injury was due to the negligence of the defendant in starting its eastbound train while he was in and known to be in a perilous position, where he would be likely to be injured if the train started.

The trial of the case resulted in a verdict for the plaintiff. Motion for a new trial made by the defendant was overruled, and after a remittitur of a part of the damages allowed by the jury, judgment was entered for the plaintiff against the defendant for the balance. The present proceeding is brought for the purpose of reversing that judgment.

On the part of the defendant it is urged that it was not an act of negligence on its part to start its train as it did, and that, even if that were negligent, the plaintiff contributed by his own negligence to the injury which he received in not keeping a lookout for trains on the southerly track, and that it was negligence on his part not to have gotten out of the way of the westbound train 'after he saw it.

The question of the relative duties of the plaintiff and the defendant depends largely upon the relation which at the time they sustained to each other.

It is conceded by the defendant that if the plaintiff was then a passenger upon its road its duties would be very different from what they would be were he but a licensee, which, it is urged, that he was at that time, and in support of this contention attention is called to the language of the contract, in which it is provided that “ whenever the person or persons accompanying said stock under this contract, to take care of the same shall leave the caboose and pass over or along the cars or track of said carrier, or ot connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause,” etc.

Whether this clause of the contract could in ,any-wise affect the right of the plaintiff to recover if this accident had happened at some point on the defendant’s line where the plaintiff had alighted from the caboose and gone along the track to look after his stock, or not, we think it does not affect his right to recover, under the circumstances of this case. The plaintiff had not yet reached the caboose, where he was to ride. He was on bis way to get on board of the train, and, as we think, was entitled to the rights of any passenger of the railroad company.

In the case of Cleveland, P. & A. Ry. Co. v. Curran, 19 Ohio St. 1 [2 Am. Dec. 362], it is held that one traveling on what is designated a “ drover’s pass ” and which, together with the contract for the transportation of live stock, constituted together the contract between the Shipper and the railroad company, was a passenger of the railroad company both in going with his stock and in returning on another train. And in the same case it is held that a provision in the contract between the shipper and the railroad company which is, if ijot in exactly the same words surely in substance the same as the last clause heretofore quoted from the contract in this case, is void as against public policy. This last doctrine has been repeatedly affirmed by our Supreme Court. See Union Express Co. v. Graham, 26 Ohio St. 595; Cincinnati, H. & D. Ry. Co. v. Pontius, 19 Ohio St. 221 [2 Am. Rep. 391]; United States Exp. Co. v. Backman, 28 Ohio St. 144; Telegraph Co. v. Griswold, 37 Ohio St. 301 [41 Am. Rep. 500].

In the case of Chicago & A. Ry. Co. v. Winters, 51 N. E. Rep. 901 [175 Ill. 293], it is said, in the second clause of the syllabus:

“ The relation of carrier and.passenger still éxists when a passenger is obliged to alight from a car to go to another car, to be carried by the carrier to his destination.”

And the third clatfse reads:

“ A stockman traveling with the consent of the railroad company on a freight train, in charge of stock carried by the company for him, is a passenger.”

Unless, then, in this case the defendant exercised that care for the protection of the plaintiff which it owed to its passengers, it was negligent, and, under proper instructions, it was a question for the jury to determine whether it did exercise such care.

In the case to which attention has last been called, the fourth clause of the syllabus reads:

“ Where a train has reached a point where the passenger may lawfully leave it, and no direction is given him to alight on the side of the train where there is no danger, but he is permitted to alight on the side where there is danger, it is for the jury whether reasonable care for the safety of the passenger has been used by the railroad company.”

Attention is called to the case of Railroad Co. v. Perry, 58 Ga. 461. In this case, the plaintiff had purchased a ticket from the railroad company, at Macon, entitling him to ride on the train of the railroad company to Savannah, both in the state of Georgia. He, after having purchased the ticket, fell into conversation with a friend in the car shed, near the ticket office. The train, at its proper time, started out without his observing the signals. Noticing that the train had started, however, he started in pursuit, being very near to the tram. An engine standing on a track which led onto the tracks on which the train was, had waited for the train to pull out and then started up, as it had a right to do, and the plaintiff came in contact with that engine and was injured. The court say, on page 468, in the fifth subdivision of the opinion:

“ It is for the jury to say whether the danger of pursuing and boarding a train when in motion was, under the circumstances, so apparent as to make it the duty of the passenger not to undertake it, or to desist from the attempt before he was injured.”

In the present case, we think the facts are not such as would warrant a court in saying, as matter of law, either that the defendant was without negligence in starting its train, or that the plaintiff was guilty of such contributory negligence as to bar a recovery. Without doubt, the danger to the plaintiff in being between the two trains was greatly increased by the starting of the east-bound train. Had that train remained standing, with the space of forty-seven inches between its cars and those of a swiftly moving train going west, it would have enabled him to lean against or hold onto' the cars of the north train, and so avoid danger. There can be no doubt that the engineer of this train on the north track knew before he started his train that the other train was coming rapidly from the east. He knew also that the plaintiff had started down the pathway between the two tracks, on his way to the caboose, and must havé known that if the west-bound train passed him while he was thus between the tracks and while, his own train was in motion, he would be in a highly dangerous position. Pefhaps he might have thrown himself upon the ground and thereby have escaped injury. It is possible that after he knew of the approach of the westbound train he could have crossed the .southerly track and got out of the way of danger, yet this last is very doubtful, and it is not probable that a cautious mau would have risked it and it is very doubtful whether, in the very short space of time in which the plaintiff must have determined what to do', it would have occurred to the average prudent man to throw himself upon the ground.

The duty of' a railroad company to its passengers requires a very high degree of care on the part of the company.

In the case of Wabash Ry. Co. v. Skiles, 64 Ohio St. 458 [60 N. E. Rep. 576], Judge Davis, in his opinion, at page 471, uses this language:

“ It has been laid down as the law that passengers who are required to cross railroád tracks in getting upon or alighting from trains, have tlie right, from the nature of their contract, to expect a safe place for that purpose and may govern themselves accordingly.”

Attention is called to the case of Baltimore & O. Ry. Co. v. State, 32 Atl. Rep. 201 [81 Md. 371], a case decided in the court of appeals of Maryland in 1895. In this case, the party injured was not a passenger, but had alighted from one train and was taking the usual course to the ticket office of the B. & O. Railroad Company, to purchase a ticket from East Brunswick to Washington. This language is used, on page 203, in the opinion:

“ He took the same route to the ticket office as that pursued by other passengers and certain employes of the appellant. He was not required, under the circumstances of this case, when he reached the track, to ‘ stop, look and listen.’ This rule is not one of universal appli* cation, except in cases when it is applied to public road crossings.”

In the case of Railroad Co. v. State, 63 Md. 135, the party injured had purchased a ticket at the station, and, in order to take her train she was required to cross the railroad track to reach a platform on the opposite side of the track from that on which was the station or ticket office. She had not yet.got upon any car of the company, but it was held that she was a passenger, entitled to all the protection of a passenger, and further, it was said, on page 144, in the opinion:

“ If she had purchased a ticket and was crossing the track by and under the direction of the ticket agent, for the purpose of taking the train, she is to be considered as a passenger, and as such entitled to the rights and protection of a passenger, and it was the duty of the agent) so far as human care and prudence could, to guard against exposing her to danger.”

Under the authorities to which attention has been called, and many others to the same effect, we think it cleár that the defendant was not entitled to a direction to have a verdict returned for it; and this disposes of the first exception taken to the refusal of the court to charge as requested by the defendant.

Exception is taken to the refusal of the court to charge a considerable number of requests made by the defendant. The first of these, which was that the jury be directed to return a verdict for the defendant, was, as has already been said, properly refused.

The second request reads:

“ If the court refuse defendant’s first request to charge, then defendant requests the court to charge the jury that under the circumstances of this case, plaintiff, while passing over and along the tracks of defendant, was not a passenger; and that in the conduct and management of its road and trains it was not bound to anticipate plaintiff’s presence, at the place mentioned in the petition, nor to modify its usual and customary methods of maintaining and operating its railroad on account of his presence in that place.”

What has already been said in this opinion necessarily results in holding that this request was properly refused.

Complaint is further made that the court refused to give in charge the fifth request of the defendant. That request reads:

“ If the court refuse defendant’s first request to charge, then defendant requests the court to charge the jury that if they find that plaintiff made a' contract by the terms of which he was permitted to ride upon the freight train of defendant, in charge of his stock, upon certain conditions, among which were the following:
“1 That whenever the person or persons accompanying said stock under this contract, to take care of the same, shall leave the caboose and pass over or along the cars, or track of said carrier, or of connecting carriers, they shall do so at their own sole risk of personal injury, from whatever cause, and neither the said carrier, nor its connecting carriers, shall be required to stop or start their trains or caboose cars at or from the depots or platforms, or to furnish lights for the accommodation or safety of the persons accompanying said stock, to take care of the same under this contract.’ And if you shall further find that plaintiff was ip fact passing over or along defendant’s track, at the time of the injury complained of, he did so at his own risk of personal injury from whatever cause. And defendant owed him no duty except after becoming aware of his dangerous position to refrain from wantonly or wilfully injuring him.”

There was no error in refusing this request. The views of the court in regard to it are expressed in what has already been said in this opinion. *

Requests seven, eight and nine each bear upon the question of the care which the plaintiff was bound to exercise, and put upon him the same care which would have been required of him had he been a licensee of the defendant instead of a passenger. Holding, as we do, that he was a passenger of the railroad company, the court properly refused these requests.

The eleventh request reads:

“If the court refuse defendant’s first request to charge, then defendant requests the court to charge the jury that if you shall find that plaintiff saw or heard the train coming on the south main track in time to have stepped across it and from the space between the main tracks, but tried to get to the caboose in advance of the on-coming train, then he assumed the hazards and perils of such a course and he cannot recover from defendant any damages he may have sustained by reason of his action.”

This request was properly refused. In the main, it states a proposition which should have been given, but if this had been given it would have put upon the plaintiff the obligation of determining whether he could pass to the south and across the south track to a distance far enough from the track to be safe after he knew of the coming of the train. It is certain that the time after the plaintiff knew of this coming train and the time it reached him was very brief. To say that he must have determined at once that he could get across, and if, as a matter of fact, he could, although to all appearances it was very doubtful whether he could, would be to require more of this man than can be expected of an ordinarily prudent man. If he could have thus got across, and if it was so plain that he could have thus got across that a prudent man would have risked it, then it might well be required that he should have thus got across; but in a case where it is so doubtful whether he could have made it to say that if he possibly could he must have done it is to require more prompt judgment than the law requires of the ordinarily prudent man.

The twelfth request reads:

“ If the court refuse defendant’s first request to charge, then defendant requests the court to charge the jury that it is no excuse for the plaintiff that he was afraid that he might lose the train on which he was about to go and that the fact that the train on the north track was moving and he was apprehensive that if he stepped across the south track and from between the main tracks, he might lose his train, this would not justify him in remaining in such a perilous place.”

We think there would have been no error in giving this request and it would not probably have misled the jury, yet perhaps it is putting it stronger than it should be to say that the facts suggested would be no excuse for the plaintiff, though certainly it is true that they would not justify the plaintiff for remaining in a perilous place. The court, however, charged the jury on the subject of this request, and, as we think, fully covered the proposition and correctly stated the law to the jury. On pages 154 and 155 of the record this language is used in the charge:

“ I say to you further that though you may find the company was negligent in directing or permitting, with its knowledge, if you find it had the knowledge, the plaintiff to walk between the tracks in going to the caboose, and that he was thus put in a place of danger, it would yet be the duty of the plaintiff, upon discovering that he was in a place of danger, to exercise ordinary care to prevent injury to himself; and if the plaintiff (after the discovery that he was in a place of danger) failed to go to a place of safety, if there was reasonable opportunity to find a place of safety, this would be such contributory negligence as would defeat his recovery.”

Complaint is made to the charge of the court, and especially to this language used in the charge :

“ It is contended by plaintiff that even though it might have been a safer course to have gone on the outside of the tracks instead of between the tracks to reach the caboose, that the defendant, through its agents, knew in ample time of the imminent danger of plaintiff to have obviated the danger and injury to plaintiff. In this connection I say to you that, though the plaintiff may have put himself ill a place of danger negligently, yet if the defendants through its servants and agents apprehended, in time, the dangerous position of plaintiff, by the exercise of ordinary care, to have prevented the same, it was the duty of the company through itó agents so to do, and that if the company by the exercise of ordinary care, after such discovery, could have saved plaintiff from the injury, then the failure of the company in this respect would be the proximate cause of the injury, and the negligence of the plaintiff would not, under such circumstances, bar this right to recover.”

If this language was so used as to be understood by the jury as meaning that though the negligence of the plaintiff continued up to the instant of his injury, still he might recover if the defendant was negligent, it would have been erroneous, but taken in connection with the language immediately following, which is that heretofore quoted from the charge, and together, the law is 'stated as we hold it to be. The court distinctly stated that if the plaintiff, when he knew of his danger, failed to exercise proper care to save himself, he could not recover. We find nothing in the charge of the court as given, or in the refusal of the court to charge as requested, or in the facts of the case, to justify a reversal, and the judgment of the court of common pleas is affirmed.