author: Caldwell, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court,
    June Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    WILLIAM TILLYER AND OTHERS v. THE VAN CLEVE GLASS COMPANY.

      Evidence — Res Gestae — Agent’s declarations.

    1. In response to complaints by the vendee as to the quality of glass sold and delivered, the vendors paid the expenses of a man to inspect the glass. What is said by this man about the quality of the glass while making the inspection, is part of the res gestae, and admissible against the vendor.

      Sale of goods — Inferior quality — Unsaleable in market.

    2.- The vendor of goods brings an -action for the price of the goods delivered. Vendee counter-claims for breach of warranty as to the quality. In such case, it is competent for the vendee to offer evidence that the-goods could not be sold in the market of .the vendee, as goods of the quality for which he bought them, but only, if at all, as a lower grade. •

      Same — Paying for the goods as received, in lots at different times.

    3. In such case, the goods having been sent at- different times, it is admissible for the vendee to offer evidence to show that drafts accompanying the bills of lading, were paid before the merchandise was received-, for the purpose of affecting any inference as to’waiver of quality, arising from receipt of the merchandise.

      Same — Proof of custom.

    á. Por the same purpose it is admissible for the vendee to show that there was a custom on the part of “manufacturers to shut down their works during the fall, and the custom on the part of the buyers to stock up in the summer, as explaining why a closer examination as to breakage and value was not made -of the goods upon their receipt. > •

      Same — Examination of goods — Not- every box need be examined.

    5. In such an action it'is error to exclude testimony, of witnesses who have examined the glass, as to the percentage of poor glass which they found in the boxes which they examined, and how many panes of broken glass the boxes would average, and as to the grade of the glass as it appeared when inspected by. them. It is not necessary, in such case, for the witnesses to be able to give this testimony as to each box separately.

      Same — Evidence of defeat in packing goods.

    6. One of the claims of the defendant being that there was an improper amount of broken glass in the boxes, it is error to exclude evidence offered by the vendee to show that the boxes had "larger apertures than is customary, and apertures which were improper.

      Same — Evidence of custom — Custom defined.

    7. Evidence of custom is inadmissible to control explicit provision® of the contract, or to control tfoe rules of law as applied to the-terms used in a contract.

      Contract to deliver f. o. b. —Definition.

    8. The words “delivered f. o. b. at Cleveland,” have acquired a hxed legal meaning, and require the vendor to deliver, atClevleand. to-the vendee, the article of'the quality such as he has agreed to sell, and in the proper condition.

      Same — Evidence of opinion as to custom.

    9. Evidence of opinion as to custom, or aá to particular instances, or as to language of price lists or circulars issued by houses engaged in the glass trade, is not admissible for the -purpose of proving-custom.

      Same — Evidence of quality —Manner of manufacturing goods.

    10. When the contract between vendor and vendee expressly provide® that the quality of glass sold shall be second and third, it is not admissible for the vendor to offer evidence to prove how he made the glass, what Kind of coal he used in burning it, and that the purchaser knew how the glass was burned, and that the vendor’s glass was not of the same quality though of the same grade, a® other glass. With such a provision in the contract the glass must be of the grade specified as known in the market.

      Same — Warranty—What will amount to.

    11. A contract for the sale of glass contained this language: “Quality to be second and third.” This is a warranty, and not a mere description of the kind and character of the goods, nor a mere condition precedent.

      Same — Warranty survives acceptance.

    12. Such a warranty survives acceptance,and it'is error to charge the-jury that if the purchaser, in the usual and ordinary course of receiving and handling glass and vending the same, could or did , discover or know that the glass was not of the quality called for by the contract, it could not keep possession and vend th^same without notice to the vendor, and afterwards recover of the vendor because the glass was not of the quality called for by the contarct.

      Same — Notice of bad condition.

    13. In such case, and where the contract piovides that the glass is to-be “delivered f. o. b. at Cleveland”, it is error to charge the jury that after receiving and vending the glass without notice, the purchaser cannot complain of the breakage of the glass if the purchaser, by the use of reasonable diligence, could or d.id know of the breakage, and did not give notice thereof to the vendor.

      Failure to delive. quantity contracted for — What will not excuse. ”
    11. Where the purchaser declines to pay the draft for the last car load, because the glass previously delivered did not comply with the-warranty as to quality, and had an undue amount broken, it is error to charge the jury that, Jfor this reason, the vendor may rightfully decline to deliver the last oar load of glass, and that defendant cannot recover for the failure to deliver such car load, the glass having advanced in price.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J.

The case is sufficiently stated in the opinion.

The parties to this action, on May 6th, 1889, entered into a written contract, as follows:

Tillyer and Company say to the Van Cleve Glass Company:

“We hereby agree to sell to you 5500 boxes window glass, at 80 per cent and 20 per cent, discount from the present price list, said glass to have 20 percent, in first bracket and 20 percent, in the second bracket, balance cf 60 per cent, to be assorted brackets. Quality to be 2nd and 3rd. Terms of sale to be 2 per cent, from bill, and you to accept our draft at one day sight on presentation of bill and bill of lading; you to have privilege of putting in some double at 85 per cent, from list, same terms as above Glass to be shipped fast as can be got ready and delivered, f. o. b. at Cleveland, by 15th day of July, 1889.”

This was accepted by the Van Cleve Glass Company.

The defendant in error delivered to the plaintiffs in error fifty-one hundred and thirty-four boxes at Cleveland, Ohio. Of this number of boxes, thirty-three hundred and ninety-one purported to be second grade glass, which were branded “Quality A,” and fifteen hundred and forty-three boxes to be “Quality 3,” which were branded “Quality JB.” The grade known as “Quality 2” was the same as “Quality A” in the trade; and “B” and Number 8 were known as the same quality in the trade. This glass was shipped in nine or ten different cars, and with the shipping bill of each car. was forwarded a draft on the Van Cleve Glass Company for the price of the amount of glass in the car. .These drafts were all paid but the last one, which the Van Oleve Glass Company refused to pay; and- this suit was brought for the recovery of the amount of that draft.

The answer of the defendant denies each and all averments in the petition after certain words, designated in the answer. It sets out that the plaintiffs are manufacturers of glass; that the defendant is a wholesale dealer in glass. It admits the contract as plead in the petition; and the answer sets out that there are in the glass market of the United States four grades of window glass, which arejknown by different names in the eastern and western markets; the four grades and qualities being called in the eastern market, beginning with the best quality, 1st, 2nd, 3rd and 4th quality; and in the western' market,the grades beginning with AA, A,B,and C. The grade or quality known in the eastern market as “2nd” being known in the western market as “A”; and the grade or quality known in the eastern market as “3” being known in the western market as “B”; and that Tillyer and Company warranted that the quality should be 2nd and 3rd, and that this referred to the grades or qualities mentioned. That the plaintiffs did not deliver to defendant fifty-five hundred boxes of window glass, but only fifty-one hundred and thirty-four boxes; and that the quality sold for the 2nd quality and branded as quality “A,” were not of that quality, but of an inferior grade and quality known as “3” or “B,” or even worse; and that the boxes sold and delivered as quality “3,” and branded as quality “B”, did not contain that, but were of the inferior grade and quality of “4” or “0.” Each of said grades or qualities is of different brand or value from all others; qualities “3” and “4” being of less value than quality“2”; and quality “4” of less value than quality “3”, That by the failure of the plaintiffs' to deliver the qualities specified, which were the qualities ordered of said plaintiffs by said, defendant under this contract,-said defendant was damaged by said plaintiffs in the .sum of $612.32. Neither was the glass properly packed in said boxes, in consequence of which a large amount of said glass, amounting to'ten percent, thereof, when the same was unpacked after delivery to these parties on board the cars at Cleveland, Ohio, was found to be broken, the value of said broken glass amounting to $922.25. Since the making of the contract, the price of glass such as described in the contract has increased in the market by .the si^rn of 23 cents per box, aud by the failure of the plaintiffs tu deliver to defendant the remainder of said fifty-five hundred boxes,defendant has been damaged by plaintiffs in the further sum of $227.18; and that plaintiffs charge defendant with glass as delivered, which was not delivered, .amounting, in an invoice on the 23rd day of May, to the sum of $1.16. That in an invoice on the 6th day of July, 1889, there was missing one box of 22x28 “B” single, amounting to $2.04. Form time to time, as plaintiffs forwarded to defendant their glass, .plaintiffs drew on defendant drafts for the price of said glass, which were paid by the defendant, and'the defendant attaches an Exhibit, “A,” and marks it part of his answer, which shows the debit side and the true statement of the drafts drawn and paid by the defendant, and the discount to which they were entitled on the payments, showing said shortages, and in fact, a complete statement of the entire account as understood by the ■ defendant; and defendant avers that there is due, by reason of the premises, from the plaintiffs to this defendant, the sum of $696.13, with interest thereon from the 15th day of July, 1889.

Numerous errors are assigned here, for which a reversal of the judgment is asked in this court.

Some of these errors assigned pertain to the ruling of the court upon the admission and rejection of testimony. Such of these rulings as we think it necessary to notice, are as follows:

On page 65 of the record the court ruled out what Yarnelfs man said. It appears from the record that when complaint was made by the plaintiffs in error to the defendant' in error in the quality and condition of the glass, the defendant in error sent a person experienced in the glass business, who was in the employ of Yarnell, to inspect the glass in Cleveland, and it appears, from a letter written by defendant in error, that the expenses of Yarnell’s man were paid by the defendant in error. We are of the opinion that the record shows that this man sent to Cleveland was the agent of the defendant in error, and if that is true, what he said while making the inspection is a part of the res gestae, and should have been submitted in evidence.
On page 66, the defendant undertook to show by Mr. Van Cleve that the quality of the glass was such that it could not be sold in the Cleveland market for glass of the grade for which it was bought, but it had to be sold, if sol'd at all, as a lower grade. This evidence should have been admitted by the court.
On page 67 the defendant below undertook to show by proper testimony that the drafts accompanying the bills of lading were paid before the glass was received. This the court excluded. This testimony should have been admitted. It is now claimed that, by the defendant below receiving ' the glass and paying for the same, there was an acceptance of the same under the contract, and that it cannot now be heard to complain. So that it became material for the defendant below to show by proper testimony that it had paid " for the glass, so far as it had paid at all, before it arrived in Cleveland.

It was claimed, in the trial of the case, that by the Van Cleve Glass Company receiving the glass and not' making any complaint of its quality or condition until some time after its being received, there was a waiver of any defect in the glass, as well as a waiver of the broken condition of the same. To rebut this inference, the defendant below undertook to show, on pages 67 and 68 of the record, that there was a custom on the part of the manufacturers to shut down their works during the fall, and a custom on the part of the buyers to stock up in summer; and the court excluded this testimony. If such a custom existed, and if followed up by •evidence on behalf of defendant, as defendant attempted to ■do in this case, that much of this glass, when bought, was bought not to be used for some time’to come, but to have a stock on hand while the factory was closed, and that it had token this glass when purchased, and stored it in a warehouse, and for this reason did not inspect it as soon as it would have done if it was to be at once sold. This evidence should have been admitted,and we think it was error on the part of the court to exclude it.

On pages 81, 172, 219, 220, 136, 11 and- 186, there is alleged to be error in this: the defendant below produced various witnesses who had examined the glass, and who were •called in the case to testify as to its quality, and as to its broken condition. The court refused to allow these witnesses to testify as to the percentage of poor glass in the boxes, and how many panes the boxes would average of broken glass, and refused to allow them to testify as to the grade of the glass as it appeared when inspected by them. It was error for the court to exclude this testimony. It would be quite impossible for parties to count the broken glass in •each box, separately, and to testily in court as to the amount •of glass found broken in each box, separately, in the entire fifty-one hundred boxes.

The defendant below offered testimony to show that the boxes had larger apertures than is customary in shipping ■glass, giving the glass an opportunity to move in the boxes; and defendant further offered testimony to show that these apertures were improper, aud were one cause; if not the principal cause,of so much glass being broken. This testimony was excluded by the court, and the exclusion, was error.

The plaintiffs below undertook to show by testimony that -. there was a custom in the glass trade that the buyer should ■ stand the loss of breakage. This evidence was objected to by the defendant below, because the contract, at it claimed, was definite and specific in its language, wherein it states that the glass is to be delivered f. o. b. at Cleveland, and that this language means that the glass is to be delivered, is contracted to be delivered, in Cleveland; and that the law applicable to such a contract requires the seller to deliver to the purchaser at Cleveland good merchantable glass, both as to quality and as to condition. The plaintiffs below, ■ in proving this custom, offered testimony of the custom of certain sellers by introducing their circulars, showing that in their circular- they require the purchaser to stand the breakage, This testimony was admitted, and these circulars read to the jury. The plaintiffs below also introduced testimony which was admitted by the court, as to what the custom is when there is no contract; and also what the custom is where there is a contract. If the language in the contract “Delivered f. o. b. at Cleveland” imposes upon the defendant in error a legal obligation to deliver glass in merchantable condition at Cleveland, then the custom cannot be introduced to change the rule of law. Custom is a species of hear-say testimony,and in its most extended sense means a rule of action which extends back beyond the recollection of living witnesses, and as in this sense, put upon the same basis as hear-say testimony in regard to other ancient matters that have their beginning beyond the recollection of living witnesses; but custom, as applied to contracts, is not of this extended and ancient character, but pertains only to the explaining what parties meant by a contract where it is left uncertain by them. If the contract, in its terms, is definite and certain, custom cannot be introduced to explain what needs no explanation. If the law of the case is clear and definite as determined by the courts, then custom cannot be introduced to change the law governing the contract. After any rule of action, or phrase or terms used in the contract has been repeatedly adjudicated by the courts, it no longer remains a custom, but becomes settled law. There was a time in the trade when “Delivered f. o. b. at Cleveland” would probably need explanation. That explanation could be had by showing how dealers interpreted the phrase. After repeated interpretation of this phrase, it then becomes law, and we suppose that the expression “Delivered f. o. b. at Cleveland” needs no longer an explanation of custom to understand it, but it has passed into the second stage where it has, by repeated adjudication of the courts, become a rule of law; and as we understand the rule, it is that the seller, where he agrees in his contract to deliver f. o. b. at the place of business of the purchaser, must deliver at that place, to him, the article in quality such as he has agreed to sell, and in proper condition; and yet, we are not prepared to say but that in a case like this, where glass is shipped, a custom may not grow up among dealers in that article, by which, instead of the shipper standing the entire loss, the purchaser shall stand a part of the entire loss. Glass is different from most articles that are shipped, because it is so easily broken. If this custom is shown by the testimony to exist in the glass trade, as well known to both seller and buyer, we cannot say it was not proper for the court to treat them under this contract as dealing with reference to that custom; hence, we think that testimony to prove a custom of this character would be properly admitted in evidence. Only witnesses who are experienced in the trade, can testify to the custom existing in that trade; and their testimony is not to be given as a matter of opinion, but as a matter of fact; and by a matter of fact, we do not mean that individual instances can be testified to. Individual instances cannot be used to establish a general rule; and so far as circulars were introduced and read to the jury, we think that testimony was incompetent, and it is not the proper way in which to prove a general custom.

Mr. Tillyer was permitted to testify as to how he made his glass; what kind of coal he used in burning it, and that Van Cleve knew how the glass was burned, and that he, Van Cleve, knew that such glass was not of the same quality, though of the same grade,as the other glass. This evidence was not properly admitted. The glass was sold to be No. 2 and' 3, as known in the market, and it was the obligation of the seller to furnish that grade as known in the market.

One principal controversy in this case is as to whether “Quality to be 2nd and 3rd,” is a warranty, or only a description of the kind and character of the goods, and merely a condition precedent. To constitute a warranty, no particular form of words is necessary in the sale of personal property; and while a mere expression of opinion is not sufficient to constitute a warranty, any clear, positive affirmation by the vendor, made during the negotiations, will be construed as an express warranty. An affirmation at the time of the sale js sufficient, provided the affirmant really intended to warrant — not simply to express an opinion. An honest expression of opinion does not amount to a warranty. Affirmations by a vendor upon which' he intends the vendee to rely, and upon which the vendee does rely, are warranties.

We are of the opinion that when Tillyer and Company agreed to sell No. 2 and 3 glass, that they warranted the glass to be of that quality as known to the trade; and that the purchaser expected to receive that class and grade of glass.

Various exceptions were taken to the charge of the court below. We will not undertake to notice all of them,but the court charged, among other things:

“Should you be satisfied that the defendant had an opportunity to, and by the use of ordinary care could have discovered the breakage that is now claimed, or did discover the same, and then went on, without notice to the plaintiffs at the time of such discovery, or opportunity to discover, the defendant cannot now be heard to complain of the breakage, though you should find that the plaintiffs, under the contract, were to stand the loss of the breakage in excess of two per cent. I further say to you, that if the defendant, in the usual course of receiving and handling glass, and vending the same, in the quantities called for by the contract and furnished by the defendant, and by the'use could or did, by such use and customary handling of the same, discover or know that the glass was not of the quality called for by the contract, it cannot keep possession of and vend the same without notice to the plaintiffs, and the defendant could not now be heard to say that the glass was not of the quality called for by the contract; and for that reason no recovery could be had against the plaintiffs in this action,

We have already held that the language used in this contract, as to the quality of the glass, is a warranty.

This last part of the charge, as read, raised the question whether a purchaser, when he buys goods with an express warranty as to the quality, and receives the goods and uses the same, can, when sued for the price, recoup damages he has suffered, by reason of the goods not being of the quality warranted.

The defendant in error claims that ‘!caveat emptor1' applies to this contract; that in the first place there was no warranty, and that if there was a warranty, it does not survive the acceptance of the goods.

Story on Sales, Secs. 359 and 365, says:

“The tendency of all modern cases on warranty, is to enlarge the responsibility of the seller, to construe every affirmation by him to be a warranty, and frequently to imply a warranty on his part from acts and circumstances whenever they were relied upon by the buyer. The maxim of caveat emptor seems gradually to be restricted in its operation, and limited in its dominion, and be set with the circumvallations of the modern doctrine of implied warranty until it can no longer claim tbe empire over the law of sales, and is but a shadow of itself. Gradually the old common law .rule of caveat emptor has been losing ground, and the law has been tending toward the doctrine of the Roman law, which is its antipode — caveat venditor — until it now occupies a middle ground between the two, by requiring the strictest good faith on the part of the seller in all that he says and does, and throwing on the buyer the. responsibility for any foolish mistakes or wrong conclusions which may result from his trusting his own judgment.”

If there is no warranty, then caveat emptor applies. And the rule as is followed by all recent decisions, with the exception of one or two states, New York and Wisconsin, is that the doctrine of caveat emptor has no place in the contract where there is an express warranty. And the court have quite wisely held that in contracts of this kind the warranty survives the acceptance of the goods, and this doctrine seems to be a corollary of the rule just stated.

The charge of the court is that if these goods were received and used after the purchaser saw or had opportunity to see and know the condition of the goods, that he cannot now be heard to complain. We are of the opinion that the rule of law, as given by the court, is wrong. The same rule was given by the court in regard to breakage, and'is, we think, error.

These errors in the charge were also calculated to mislead the jury into thinking that, under the charge of the court, if it found that the plaintiffs had received these goods when they were not in proper condition, it must refuse plaintiffs' in error any damages on account of the glass not shipped, and this was error.

Other errors are assigned to the charge on legal questions involved, but they have been fully discussed in what has been said upon the ruling of the court upon the admission and rejection of evidence. For these errors, on the part of the court below, the case is reversed and remanded for a new trial.

White, Johnson, McCaslin & Connor, for Plaintiffs in error.

Blondín & Bice, for Defendant in error.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    (Third Circuit — Crawford Co., O., Circuit Court,
    Sep. Term, 1896.)
    Before Day, Price and Rohn, J J.

    THE PENNSYLVANIA COMPANY v. ADAM ROSSMAN.

      Charge of court — More definiteness must he ashed of court at time of delivery.—

    1. A judgment will not be reversed on error, on the ground only that the charge of the court to the j ury is too general and not sufficiently precise and specific, unless the court, at the time the charge is given, is properly requested to be more specific and particular, and declines to be so.

      Locomotive setting fire — Evidence must be specific as to time and place.—

    In an action against a railroad company to recover the value of a building and other property which was burned, and is alleged to have been set on fire by sparks and cinders from one of defendant’s engines, which passed shortly before the fire was discovered, and is claimed to have been carelessly managed and unprovided with proper appliances for preventing the escape of sparks and cinders, evidence that 'other engines of the company, on other occasions, emitted sparks and coals, is incompetent unless limited and confined to a time and place not remote from the fire.

      Same — Evidence—What necessary. —
    3. Such evidence is inadmissible at any time, for any purpose, until the plaintiff has first given evidence tending.to exclude the probability that the fire was communicated by any other means.
    Error to the Court of Common Pleas of Crawford county.
   Day, J.

The action in the common pleas was by Rossman against the Pennsylvania Company to recover the value of a barn and contents, corn crib and buggy shed, buggy and other property, destroyed by fire through the alleged negligence-of the railroad company in omitting to use proper appliances to prevent the emission of sparks from its locomotives passing over its road, by reason of which negligence sparks-escaped from one of its locomotives, on the 19th of October, 1894, set fire to the said barn and other property, and destroyed it. Issue was joined on the claim of Rossman that, his property was destroyed by the neglect and fault of the-railroad company, and tried to a jury, resulting in a verdict and judgment in favor of Rossman, the court overruling a-motion for new trial before judgment was entered. All the-evidence had and the charge of the court to the jury is brought before us by a proper bill of exceptions, and the railroad company prosecuted error, seeking a reversal of the-judgment and a new trial because of prejudicial errors said-to be apparent on the face of the record.

The errors assigned are: 1. In charging the jury. 2. In admitting evidence to the jury over the objection of plaintiff in error. 3. In not sustaining motion for new trial on the grounds that the verdict is not supported by-sufficient evidence,and is against the weight of evidence,and contrary to law.

1. The criticism made of the court’s charge to the jury was that it did not specifically and with- sufficient particularity instruct the jury as to how, in reaching a proper conclusion, it should estimate and regard certain evidence that' was admitted. We understand counsel does not insist on this assignment of error, but abandons it. That is proper. Of course,it is the plain duty of a court, in charging a jury,, to fully cover the case on trial in all its material phases and aspects, and give to the jury, in understandable English, such precise and definite instructions, as to the rules of law applicable and governing, that will make the jurors as-intelligent as may be on the subject, and so aid them to a¡ just and proper conclusion. But the court is not open to criticism, and its judgment will not be reversed merely because its instructions to the jury are somewhat general and not so precise and specific as counsel on either side might wish; or at all, on that ground, unless the court is first requested to be more definite and precise in its statements, and declines to be so, If the charge is defective in the respect indicated, it is likely that the court, upon its attention being directed to the matter, would have remedied the omission. 2. During the trial evidence was permitted to go to the jury, as competent, tending to show that at different times and places engines of the railroad company, other than the one which it is claimed communicated the fire, emitted sparks which were carried long distances by the wind. This appears on pages 8, 9, 17, 33, 34, 35 and 36 of the bill of exceptions. In each instance objection was made to the competency of such evidence, but the objection was overruled and the testimony admitted, to which ruling exception was taken and noted. So far as we are advised the question here raised is new in Ohio. This species or class of testimony has not, to our knowledge, been held pertinent or competent by any reviewing or higher court of this state, Outside of this state, however, whenever the question has been raised and considered, the current weight of authority is to the effect that,to an extent, it is competent and admissible under certain conditions and circumstances as tending to throw light and establish the possibility and consequent probability that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company. It is not considered as first class, or of prime value, as evidence; is only admissible within very narrow limits, and not at all until the plaintiff has first given evidence tending to exclude the probability. that the fire was communicated by any other means.

The rule obtaining is fairly defined and expressed in the case of Sheldon v. Hudson River Railroad Company, 14 N. Y. 218, as follows:

“In an action against a railroad company to recover the value of a building which was burned, and which is alleged to have been set on fire by sparks from one of the defendant’s engines, which passed shortly before the fire was discovered, and is claimed to have been carelessly managed and unskillfully constructed, evidence that engines of the company passing near that place on other occasions shortly before emitted sparks and coals, is competent, after the plaintiff has given evidence tending to exclude the probability that fire was communicated by any other means.”

To the same effect is the bolding in the case of the Grand Trunk Railway Company v. Richardson, 91 U. S., 362; where it is said:

“Evidence that at various times during the summer, before the fire occurred, some of the company’s locomotives scattered fire when going past a mill that was burned, is inadmissible. ”

It will be observed that such facts are held admissible when they occurred shortly before the fire, or during the summer, before the fire occurred; and, on occasions when locomotives were passing on the railroad track" near the place of the fire. From this it would appear that such facts occurring at a time and place remote from the fire, or at an indefinite time or place, would not be admissible. Such testimony then, is, and becomes, admissible and competent for any purpose, only when it is limited in time and place to near the time and place of the fire. As limited by the rule stated it is probable such evidence is admissible, and to the extent indicated by the New York court, the rule may, with propriety, be held applicable in this state. Considering the rule in this way, then, was the evidence admitted over the objection of plaintiff in error admissible?

On page 16 of tbe bill the question propounded to the witness was:

“Have you noticed sparks fly in the day time, or at any time, from engines on that road, with reference to seeing how far they flew?” Page 19: “What do you say to that as to whether you saw sparks fly from an engine as long a distance as from that track to your barn?” Answer: “Yes sir; I have.” On page 24: “Did you ever notice sparks flying when wind was from the south, as far as the barn?” Answer: “Yes, further than that; they flew, lots of times, to the woods and grass, and the grass was afire lots of times, and we put it out.” Page 34: “Tell the jury whether you have observed, at night, the distance to which sparks would be carried?” Answer: “Oh, yes; I have frequently seen them thrown out of locomotives at night.” Question: “Have you observed the distance they were carried in as strong wind as of that day ?” Answer: “Yes, I have seen them carried a good w'ays.” Question: “To what distance?” Answer: Well, I have seen them carried as far as the barn is from the railroad. I’ve seen — I’ve known them thrown in clearings in dry times.”

All the questions propounded on that subject, and the answers made, were of this character- — vague, indefinite and very general. Time and place not specified; net limited to a time shortly before the fire, during the season or summer before the fire, or, within the last decade, or to a place near the scene of the burning, or on the defendant’s road, even; but taking in, in their purview, all times, all localities and all railroads. This testimony, if testimony it is, is believed to be too attenuated and far away to possess any appreciable value or weight. We are of opinion that it was too remote, and because of its remoteness it was incompetent and inadmissible.

3. This class of evidence is out of question, and the plaintiff’s case is not made out, but is left in such condition that the verdict rendered is not supported by sufficient evidence,and is clearly not warranted by the evidence adduced. It should have been set aside, on motion for that purpose, and a new trial granted.

Wheeler & Brice, for Plaintiff in error.

Finley, Beer & Bennett, for Defendant in error.

We find error in the respect indicated, for which the judgment is reversed. The motion for new trial is allowed, and a new trial granted.


author: Burrows, J.

text:
    (Eighth Circuit, Lorain Co., O., Circuit Court,
    November Term, 1896.)
    Before Caldwell, Hale and Burrows, JJ.
    (Judge Burrows, of the Seventh Circuit, taking the place of Judge-Marvin.)
    JAMES GAWN v. STATE OF OHIO.
    I. Threats made by defendant.

    If, after the commission of an offense, threats are made by the defendant against the prosecuting attorney of the county, evidence-of such alleged threats is not admissible, unless it appears that they were made under such circumstances and are of such character as to manifest a consciousness of guilt.
    II. Burden of proof as to Alibi.

    1. Where proof of the presence of the defendant, at the time andi place of the commission of an offense, is requisite to sustain a conviction, a charge to the jury, which in terms or by implication, puts upon the defendant the burden of showing that he was-not present at such time and place, is misleading and erroneous.
    2. It is also error, in such case, to charge the jury that an alibi is a defense set up by the defendant, which can only be satisfactorily maintained by proof which renders it impossible that he-could have committed the act.
    III. Misconduct of Prosecuting Attorney.

    1. When the natural and probable effect of an improper' address to-the jury by the prosecuting attorney, is to create an unjust prejudice against the defendant, and secure a decision influenced by the prejudice so created, a new trial should be granted.
    2. The neglect of counsel for defendant to make objection to such misconduct at the time, will not preclude its consideration upon a motion for a new trial, where its prejudicial effect could not have been prevented thereby.
    Error to the Court of Common Pleas of Lorain county,.
   Burrows, J.

The plaintiff in error was convicted in the court below of the crime of arson. The indictment alleged that he set fire to, and attempted to burn, school house No, 6, in Amherst township, on 6th day of October, 1895; and in the second count alleges that he set fire to and burned down this building on the 10th day of the same month. His. motion for a new trial was overruled, and a bill of exceptions taken embodying all the evidence and proceedings.

It is now claimed that this judgment of conviction should be reversed for errors assigned upon the record.

1. Objection was made to the introduction of any evidence on the part of the State on the ground that the indictment did not charge an offense. That there was a fatal misnomer or misdescription as to the ownership of the property. That there was and could be no such body corporate as “The Board of Education of Amherst township,” but that the only legal designation of that body was “The Board of Education of the Township District of Amherst.”

What merit, if any, there might be in this contention, in the absence of any statutory direction, it is unnecessary to inquire. The statute of this state, section 7216, makes such defect unimportant, “unless the court before which the trial is had, finds that such variance is material to the merits of the case, or may be prejudicial to the defendant.”

The trial court did not find such variance material, or that the defendant might be prejudiced thereby.

We are of the opinion that the ruling of the court in this regard, was correct.

2. The State was permitted to put in evidence the fact that certain tin cans, which had the smell of coal oil about them, and which had been used, presumably, in starting the fire on the night of the 6th of October, were found in and around the building on the morning of October 7.

It was and is contended that this was incompetent, inasmuch as the State had not shown, and did not propose to show, that the prisoner' owned the cans, or ever had any connection with them.

After all of the evidence was submitted, the court was requested to instruct the jury to disregard this evidence unless it was first found it was established that the defendant was in some way connected with the ownership or possession of these cans.

We think there was no error in the admission of this evidence, or in the refusal of the request.

The burden rested upon the State to prove that this fire was of incendiary origin;- that this building was set on fire intentionally with the malicious purpose to destroy it; and in our opinion, this evidence was proper and persuasive in the determination of that question.

8. Evidence was given by the State that the accused made certain declarations to the sheriff tending to show that he entertained hostile feelings towards the prosecuting attorney.

The indictment in this case was found at the May term, 1896, and these declarations were made during the preceding February term.

Prior thereto there were rumors afloat imputing to the accused the destruction of this building, and he had employed a detective from Cleveland to assist him in ascertaining who had put such rumors in circulation, with the view of prosecuting civil actions for slander. The detective obtained statements and affidavits from different parties, and visited the prosecuting attorney, and by false pretense obtained from his office some tin cans and other articles that had been left there by persons who suspected the accused of this crime.

At the February term, 1896, the conduct of the detective was investigated before the grand jury, and a subpoena duces tecum was served upon the accused, requiring him to attend as a witness, and bring with him the said articles obtained by the detective, as well as the statements and affidavits taken by him. It was during these proceedings before the grand jdry, or soon thereafter, and in relation thereto, that the declarations were made.

The sheriff testified to two conversations. The material part of the first, which was excepted to, is as follows:

“Q. What did he say at the time, if anything, about the porsecuting attorney?”
“Objected to.”
“The Court — If it has reference to this case nowon trial, he may state it; if it has reference to some other matter, I do not think it is competent.”
“Mr. Thomas — It has reference to this matter.”
“A. Is it necessary to use the language?”
“Q. Yes, sir.” •
“Exception by defendant.”
“A. Must I use the exact language?”
“Q. Yes, sir. A. He said: ‘If the son-of-a-bitch of a prosecutor does not keep his hands off from me, I will land him in the penitentiary.’ ”

The material part of the second conversation excepted to is as follows:

“Q. I will ask you where that conversation was?” A. “On the other side of this room.”-
“Q. What did he say at that time?”
“Objected to by defendant.”
“The Court — If it is in the line I have indicated, he may answer.”
.“Mr, Thomas — It is.”
‘ ‘ Exception by defendant. ’ ’
“A. I do not think I can recollect the entire conversation. It was in relation to the arrest that had been made of a party in Cleveland. Without trying to use his exact words, because I do not recollect them exactly, the turn of the conversation was, that the prosecutor and the sheriff had used unfair methods toward him in securing his witnesses; they had tampered with him; and in some other conversation, that the prosecutor would find himself in a tight fix before he got through with this, if he did not look out.”

The motion of the defendant to exclude this answer was-' overruled, and exception taken.

This evidence was made to play a somewhat important part in the cass. In his address to the jury the prosecuting attorney assumed that the accused was attempting, by these alleged threats, to intimidate the public prosecutor, and thereby prevent a prosecution of this case. The jury was told that the prosecuting attorney had fearlessly discharged his public duties in this matter, and would continue to do so, regardless of personal consequences.

It is important to determine the precise ground upon which the admissibility of this class of evidence can be placed.

The only ground, as we believe, upon which it can stand is, that the declarations were of such character, and made-under such circumstances, as to indicate a consciousness of guilt in the mind of the accused, as to the charge under investigation. If a person suspected of crime undertakes to obstruct a full investigation as to his guilt by the destruction of evidence, or attempts by intimination to deter the public prosecutor from doing his full duty in the matter, the inference naturally arises that such conduct is to be attributed to a consciousness of guilt.

When we look to the circumstances under which these declarations were made, we find that no prosecution was then pending, and that the accused did not then anticipate that he was to be prosecuted; but, on the contrary, was making vigorous and perhaps unfortunate efforts to hunt down the rumors against him, with a view of having a public investigation as to their truth or falsity.

It does not appear that the prosecuting attorney had theretofore taken any active interest against the accused; but it does appear that he had, just prior to the making of these alleged threats, been attempting to procure an indictment against the detective, and for that purpose had caused the accused to bring before the grand jury the articles and documents procured by the detective.

It would seem to be reasonably certain from these circumstances, as well as from the testimony of the sheriff, that the hostility expressed by the accused towards the prosecuting attorney arose solely out of this attempt to indict the detective and the means used to accomplish that purpose; and that the accused did not contemplate by these threats any obstruction of a prosecution against himself.

We are, therefore, of the opinion that the evidence did not tend to show consciousness of guilt, and was incompetent, and its admisison prejudicial error.

4. Exception is also taken to the charge of the court upon the question of alibi. The charge is as follows:

“Now, gentlemen of the jury, the defendant in this case, besides denying all the allegations of the indictment herein, says, that even though you find from the evidence that a crime was committed, as charged in the indictment, that he did not commit it.
“The defendant, besides denying the commission of the offepse, says that at the time the building is alleged to have been set on fire, he was at another and different place.
“This defense, in law, is termed an alibi. I will now explain to you what is meant by an alibi, and instruct you upon the law in relation to the same.
“Alibi is a Latin word, signifying elsewhere, and in law means a defense interposed by the defendant by which he seeks to prove that at the time of the commission of the offense he was at some other place than where it was committed,
“It is obviously essential to the satisfactory proof of an alibi that it cover the whole of the time of the transaction in question, or so much thereof as to render it impossible that the defendant could have committed the act.
“An alibi is a legitimate and proper defense to make, and if satisfactorily made, is conclusive.
“It would be proper for you to consider, in determining this case, whether the parties who have testified to seeing the defendant in his office on the night of October 10, 1895,. have fixed such a time as to preclude all possibility or probability of the defendant being at the place of the alleged burning of the building.”

This charge is, in our opinion, misleading and erroneous-It is not in conformity with the decision of the Supreme' Court in Walters v. The State, 89 Ohio St. 215. In that case the trial judge charged the jury, in substance, that the defendant had interposed the defense of alibi, but was not required to establish the same by proof beyond reasonable doubt, but only by a preponderance of the evidence, to entitle him to an acquittal.

Okey, Judge, in reviewing this charge, at page 217, says:

“We hold this charge to be erroneous. It is, in effect, that evidence tending to show such alibi is not to be considered in favor of the defendant unless it outweighs all of the evidence in opposition to it. We think it was the duty of the trial judge to have said to the jury that they must consider all of the evidence in the case, including that relating to the alibi, and determine from the whole evidence whether it was shown beyond reasonable doubt that the defendant had committed the crime with which he was charged. The burden of proof was not changed when the defendant undertook to prove an alibi, and if, by reason of the evidence in relation to such alibi, the jury should doubt the defendant’s guilt, he would be entitled to an acquittal, although the jury might not be able to say that the alibi was fully proved,”

In like manner, and with greater clearness, the instructions in this case put upon the accused the burden of proving the alibi, and inferentially, at least, deprived him of all benefit arising from such proof unless this alleged defense was fully and incontestably established.

The jury is instructed that the defendant interpose this defense, and seeks thereby to prove that he was at some other place than the place of the crime at the time it was committed; that it is a proper defense to make, and when satisfactorily made, is conclusive; and that it is essential, to the satisfactory proof of such defense, that -it cover-the whole time of the transaction in question, or so much thereof as to render it impossible that the- defendant could have committed the act.

The court proceeded to make more specific application of the same rule when he charged the jury, to consider whether the parties who testified to seeing the defendant in his office on the night of October 10, 1895, fixed such a time as to preclude all possibility or probability of the defendant’s being at the place of the crime at the time it was committed.

These instructions gave the accused the benefit of such defense when it was proved satisfactorily or conclusively; and left the jury to infer that when it was not so proved the defense failed, and that the evidence tending to establish it was to be disregarded.'

The theory of the State was that the accused set these fires with his own hand; no other suggestion is found in the record. It was, therefore, necessary for the State to prove, as part of its case, that the defendant was at the building at the time it was fired.

His whereabouts was not a matter of defense, and any proof of the accused that be was elsewhere, at the time, was competent and appropriate to weaken or destroy the force of the proof which the State was bound to bring forward to sustain its case.

The defendant, in a criminal case, is not required to prove-his innocence; but he would be so required, if, as in this case, when the main issue in dispute was whether he was present at the crime, he was compelled to maintain that he was not, by proof so conclusive as to render his presence improbable and impossible.

Though it may be said, with fair show of reason, that when the whole charge was considered, it did not necessarily deprive the defendnat of that benefit of any doubt which might be produced by his evidence of an alibi, yet we are unable to rid our minds of the conviction that its tendency and effect were decidedly in that direction.

5. The misconduct of the jury is also assigned as error. The affidavits presented by the defendant in support of his motion for a new trial show that the juror Oooley discussed the merits of the case pretty freely during the progress of the trial. That he stated, among other things, to one affiant, that the State was making a strong case, and to another that the State had made a strong case, and that the defendant was making a strong case. Had these facts been admitted, a new trial must necessarily have been granted; but the juror not only denied this by his affidavit, but other affidavits were presented by the State tending to corroborate the'denial of the juror.

The only doubt about the question grows out of the admission of the juror himself in his affidavit, that he only said, “That the State was trying the case very close, and the defendant was trying it very close.” This comes very close to being an expression of “an opinion upon the subject of the trial;” but, in consideration of this conflict of evidence and the impartial character of the admitted statement of the juror, we are unable to say that the motion for a new trial on this ground was improperly overruled.

6. Again, it is claimed that there was misconduct of. the prosecuting attorney and his assistant “by which the defendant was prevented from having a fair trial.”

In support of the motion for a new trial on this ground; the affidavit of a stenographer is presented, setting out and verifying what is claimed to be a verbatim report of a large, portion of the address of the prosecuting attorney to the jury. It appears from this report that the prosecuting attorney bore testimony against the defendant most vigorously; that he repeatedly addressed his remarks tc the prisoner and denounced him in no uncertain terms, saying to him: “You are a thief,” “You set fire to that building,” “You are a guilty man.” That in conclusion he said to the jury: ■ “Gentlemen, I have never seen a clearer case of circumstancial evidence, and if this man were a tramp, it would be sufficient to hang him. It is as clear a case of circumstances as you will ever find if you sit upon the jury from now until the crack of doom. ”

Affidavits were also presented showing that the attorney assisting in the prosecution, closed his address with substantially his statement:

“Gentlemen, I want to say to you, if you let this man go acquit, then he will proceed to extract blood money from these witnesses to carry on these suits.”

It was in evidence that suits for slander were then pending or in contemplation against some of the witnesses for the State.

■ If we were to dispose of this matter upon the proof made by the defendant, and that only, we should be disposed to hold that such conduct on the part of the prosecuting officers was prejudicial error. That its natural, if not necessary effect, was to excite passion and prejudice and lead to a decision influenced by the prejudice so created, rather than one arrived at solely upon a careful and unbiased consideration of the real facts in evidence.

Many of the remarks were not objected to when made, nor was the court asked to take any action in relation to them. This, we believe, is not always essential. When improper remarks are made to the jury, and it is apparent that an objection thereto would afford no redress, but only aggravate their injurious effect, the absence of objection at the time, under such circumstances, ought not to preclude their consideration upon a motion for a new trial.

Counsel for the State contend, however, that the affidavits offered by them, tend to disprove their alleged misconduct.

The prosecuting attorney, in his affidavit, says that the remarks attributed to him, were materially qualified and modified, in that portion of his address not reported by the stenographer; while his assistant, in his affidavit, makes a technical denial of having used substantially the language imputed to him.

In view of this possible dispute and uncertainty as to the facts, and especially in consideration of the full knowledge thereof possessed by the trial court, the overruling of the motion for a new trial on this ground, is held not to be manifestly erroneous by the majority of the court,

7. It is also contended that the verdict is not supported by sufficient evidence. This assignment of error has commanded the serious attention of counsel and the court. It has been fully and ably argued, and we have given much time to its consideration. While the record is voluminous, there are, after all, only a few decisive facts relied upon by either party. .

The larger part of this large record is devoted to evidence of declarations and conduct of the accused, covering a wide range of transactions,both before and after the building was burned, the main bearing of which was to show that the defendant would be benefited by its destruction, and therefore had a motive for destroying it. He was an architect, and had, theretofore, furnished plans and estimates for school houses in this township, The profit to him in each case, as estimated, was about fifty dollars.

School house No. 6 was antiquated, and not up to the requirements of the times It was a matter of frequent remark in this sub-district, that its destruction would be a public blessing; and such remarks had been made in the hearing of the defendant.

After its destruction the defendant immediately applied for the job of furnishing plans and estimates for a new building. He persistently pursued the different members of the board of education, and urged the immediate erection of a new school house, and furnished arguments and statements, verbal and written, showing the economy of speedy action.

Afterwards, while a room in a private dwelling was being «sed for a school room, he officiously undertook to show its inappropriateness for this purpose, and brought the matter to the attention of the state board of health.

All this was done, apparently, for the purpose of compelling the board of education to build a new school house at once. His officiousness was encouraged by certain parties who suspected him of burning the old school house. When he learned that he was suspected of this crime, he directed all his energies to the removal of such suspicion. He employed an alleged detective to ferret out the authors of his disgrace, while he undertook to remove such suspicion by arguments, explanations and denunciations.

The history of all these conversations and transactions is brought into this record to show motive.

The proper part that evidence of motive may be made to play, in a criminal trial, is to remove the uncertainty arising from the want of such evidence. Its importance for this purpose is unquestioned; especially, when, as in this case, the State must rely upon circumstantial evidence alone; but it cannot be used as affirmative proof that this building was set on fire by the defendant.

Because of the assumption that all responsible human action is voluntary, and is caused and guided by self-interest, the question of motive necessarily forces itself upon the mind in the investigation of every alleged criminal act.

It is only, however, when such act is established by other evidence, that the question of motive can be applied to give corroboration and assurance to the conclusions drawn from other evidential facts.

We must, then, turn our attention to the consideration of the material evidentiary facts of the case.

It is fully established that on the 6th day of October, the-defendant was familiar with the school house, and knew, or might have known, that there was no fastening on the southwest window; that this window was opened and the fire set in that part of the building; that numerous tracks of a three-quarter buggy, drawn by a horse having á small foot, and wearing plate shoes, were found on the following, morning in the road near the school house, indicating that the horse had been turned partially out of the traveled part of the road opposite this window; that these tracks were-similar to those made by the defendant’s buggy, and that his horse had small feet and wore plate shoes at the time.

Evidence was given tending to show that the defendant was seen and identified near the school house, at about the hour of nine o’clock on this evening, driving to the south, at a rapid pace, and that a light was discovered in the school house at about this time, or soon thereafter.

As to the transaction on the evening of October 10th, it is proved that the school house was discovered to be on fire at twenty minutes past ten o’clock, sun time; that the tracks-of a horse and buggy, similar to those found on the morning' of the 7th, were discovered in the road, coming towards the school house from the south, and then going west. Evidence was given tending to show that the horse and buggy of the-defendant were absent from the livery stable, where they were kept, during all of this evening, and that the defendant did not return until ten o’clock, or after.

'On the part of the defendant it is shown that up to the-time of the making of this charge he had sustained a good reputation for honesty and integrity; that upon the night of October 10th, he was transacting business with various parties, at his office in the city of Elyria until the hour of' 9:30, sun time; evidence was also given that this school house was located west of the city of Elyria, and three miles-from his office. Evidence was also given on his part tending' to show that he was at home, in the city of Elyria, all of the evening of October 6th, and that he remained in his office on the evening of October.10th, till ten o’clock, sun time.

This,, in brief, is the whole case. The force of some-of these circumstances is weakened, if not wholly destroyed, by other undisputed facts. The tracks of a three-quarter buggy was a circumstance of little, if any, probative force against the accused, as many vehicles of that kind were shown to have been in use at that time in that vicinity. It is also a conceded fact that the defendant passed this school house with his horse and buggy late on that afternoon of October 6th.

There was a like infirmity of inconclusiveness as to the tracks of the horse, There was nothing uncommon about the shoes of the horse, in size or otherwise.

These circumstances lack the essential elements required to make them incriminative. They are perhaps consistent with guilt, but are in no wise incompatible with innocence.

If the defendant visited this neighborhood at about the time the fire was set, on the evening of the 6th,his presence there, in connection with his testimony, that he was then in Elyria, would raise a strong presumption ofl’guilt.

The witness, Ann Refering, says that she heard the sound of a rapidly approaching carriage, while she was on her way borne from a neighbor’s, at about nine o’clock of that evening, and stepped aside till the carriage'"passed; that the top of the carriage was down, and that the speed of the horse 'was somewhat slackened as it passed; that she recognized the defendant and the rig, and also observed that he had on a dark suit of clothes and a dark stiff hat.

The jury must have given full credence to this story, as it is the only testimony which could have convinced them that the defendant was guilty of this charge.

We think her testimony was not entitled to full credit. It was a dark night, so dark that she did not see the carriage till it was close upon her, and learned it from the noise of its approach. Her daughter, who was with her at the time, says that she could not tell who was in the carriage because it was so dark.

That any one could tell the color of clothes under such circumstances is impossible. At best, it could only have been the opinion or conjecture of the witness, Ann Refering, that she saw the defendant on that night; and when she first began to entertain that opinion is left in uncertainty by the record.

The material circumstances to sustain the charge made on the 10th of October, is the alleged fact that the defendant's horse and buggy were taken out of the livery barn early in the evening and not returned by the defendant till ten o’clock, or somewhat later. This claim is supported by the testimony of two witnesses. The witness, Bivens, the owner of the stable, says he was about there until about nine o’clock, and that the horse had not been brought in at that time. Upon cross-examination he admits that there was nothing to call his attention especially to this matter at the time, and we are satisfied that it was, with him, only a matter of the most shadowy impression. Indeed, the record discloses the fact, that some days after the 10th, he inquired of Worden, the man in charge of the stable, whether “Gawn’s horse was out late that night.”

The witness, Worden, was working at this stable; and he says it was ten o’clock, or later, before the horse was brought in. He also says that there was nothing about this circumstance to attract his attention at the time, and that he only fixed the date by figuring back some time afterwards, He was unable to fix other times when this horse, or the horses, were out during an evening, as it was a matter of common occurrence, and of no consequence.

F. G. Johnson, Judge Blandin and H. H. Reddington for Plaintiff in Error.

F. F. Thomas, Prosecuting Attorney, and A. R. Webber, for Defendant in Error.

The time when the fire was discovered, on the 10th, by the witness Osman, is fixed with as much certainty as any other fact in the case, as being at 10:20 P. M., sun time. He testifies that he then went to the school house, some quarter of a mile away, and found a small fire in the front part of the building. That there was nothing to indicate how long it had been in progress, and that it was burning very slowly at that time.

It may be possible that the defendant could have left his office at 9:30 sun time, and have traveled by some indirect route so as to have approached this building from the south, have set this fire, and then have gone west, and yet. have returned to the livery stable at ten o’clock or soon thereafter; but in the light afforded by this record, it is extremely improbable.

We are fully convinced that the verdict was not warranted by the evidence;

All assignments of error not commented upon, are overruled. The judgment in this case is reversed, and the cause remanded for further proceedings.


author: Summers, J.

text:
    (Second Circuit — Clark Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Shearer, Summers and Wilson, JJ.
    COLLETT, Treasurer, v. The SPRINGFIELD SAVINGS SOCIETY.

      Taxation of Savings Socities. organized under the act of April 16, 1867.

    1. Section 2759b, of the Revised Statutes, regulating returns for taxation of savings societies, incorporated under the act of April 16, 1867, is not repugnant to either section 2, or section 3, of article 12, of the constitution.

      2. The deposits in such societies are the property of the depositors; the societies are merely incorporated agencies for the depositors as principals, to receive, loan and invest the savings of the latter.
    3. The depositors are required to return and pay taxes upon the value of their interests in the society, and the society to return and pay taxes upon the remainder of the property not the reciprocal of such interests. The surplus, undivided profits, real estate and furniture do not add to the taxable value of the depositors’ interests, and a complete taxation of all the taxable property is effected by requiring the depositors to pay upon the value of their interests and the society to pay upon the surplus, undivided profits, real estate and furniture.
    Error to the Court of Common Pleas of Clark county.
    October 14, 1892, the plaintiff brought suit in the court of common pleas of Clark county to recover from the defendant taxes and penalty, amounting to $65,884.72 for the years 1887 to 1891, both inclusive; and, on March 4, 1893, brought suit to recover from the defendant taxes and penalty amounting to $20,483.19 for the year 1892.
    Answers and replies were filed. The cases were consolidated and tried to the court, a jury being waived.
    The court stated its conclusions of fact separately from its conclusions of law, and upon the issues joined found in favor of the defendant, and adjudged that the petitions be dismissed.
    The plaintiff excepted to the conclusions of fact and to the conclusions of law, and filed a motion fora modification of certain of the conclusions of fact,and' for a new trial. This motion was overruled, and plaintiff prosecutes error to this court, assigning as grounds therefor, error in the admission and rejection of testimony; error in certain of the conclusions of fact, in certain of the conclusions of law, and in the judgment.
    The Springfield Savings Society was incorporated and carried on its business under an act entitled “An act to incorporate Savings Societies, ” passed April 16, 1867, 64 Ohio Laws, 184.
   Summers, J.

Counsel for defendant claims that until 1879 the defendant was not required to make any return for taxation of the property held by it, but that the depositors were the real owners of the property,and are now, and always have been, required to return their interests for taxation; that in 1879, by an amendment of what is now section 2734 of the Revised Statutes, (76 Ohio Laws, 28), the society was required to return and pay taxes upon the surplus; and that so the matter stood until April 16, 1890, when section 2759b was enacted, and that since that date the defendant has been required to make the return provided by section 2759b; that the society is merely the incorporated agent or trustee of the depositors; that the depositors were, and are, taxed upon their deposits, and the society upon the surplus, and that thus a complete taxation of the entire property is effected, and that this result, and not double taxation, is what the legislature intended, and all that the constitution requires.

Counsel for plaintiff claim that the defendant is now, and always has been, required to list its property in the same manner as an unincorporated bank; that the society in its corporate capacity is the owner of the property; that the deposits are debts owing by the society to its depositors; that under the constitution and laws of this state debts cannot be deducted from cash and bonds, and that Treasurer v. Bank, 47 Ohio St. 503, holding that section 2759, in so far as it provides for the deduction by unincorporated banRs of debts from cash and bonds, contravenes section 2, of article 12, of the constitution, is decisive-of this case.

The defendant, for each of the years in controversy, returned and paid taxes upon its furniture, real estate, and surplus, less that part of the surplus invested in United States bonds,and the court, in onb of its conclusions of fact, finds that in each of said years 1887 to 1892,both inclusive, said savings society paid taxes on a larger amount than it would be required to pay taxes upon, by the letter of section 2759 of the Revised Statutes.

The findings of fact, sustained by the evidence, will warrant no other conclusion of law than that the return for each of the years iu controversy, prior to the year 1892, was not false; so that only the return for 1892 is involved, and the principal question is, does section 2759b of the Revised 'Statutes, in so far as it directs the auditor, in ascertaining the amount to place on the tax duplicate in the name of societies organized under the law of 1867, to deduct the sixth item, the deposits, from the third and fourth items, cash and stocks and bonds, conflict with any provision of the constitution?

Or, to state it in a different form, do the deposits held and controlled by the defendant, The Springfield Savings Society, belong to it, or do they belong to the depositors, and are they held and controlled by the society as the incorporated agent or trustee of the depositors, and for their sole use and benefit? Do the interests of the depositors for the purposes of taxation represent the deposits and the property in which they are invested, and are the depositors taxed upon their interests, and the society upon the remainder of the property not represented by such interests?

“The relation of bank and general depositor is simply the ordinary one of debtor and creditor, not of agent and principal, or trustee and cestui que trust.’’ Spear, J., in Railroad Co. v. Bank, 54 Ohio St. 60, 71. Bank v. Brewing Co., 50 Ohio St. 151; Covert v. Rhodes, 48 Ohio St. 66, 71; Treasurer v. Bank, 47 Ohio St. 503, 522.

But that the relation of savings societies, such asRefendant, and depositor is that of agent and principal, is settled by an unbroken current of authority. Ridenour v. Mayo, 40 Ohio St. 9; Morse on Banks and Banking, sec. 3; Grant on Banking, 614; Commonwealth v. People’s etc., Bank, 5 Allen, 428, 434; In re Newark Savings Inst., 28 N. J. Eq., 552; Cogswell v. Bank, 59 N. H. 43; Osborn v. Byrnes, 43 Conn., 155; Huntington v. Savings Bank, 96 U. S. 388, 394; Stockton v. Bank, 32 N. J. Eq., 163, 165; Hannon v. Williams, 34 N. J. Eq., 255, 258; Mechanics’ Bank v. Granger, 17 R. I. 77; Lewis v. Lynn Savings Inst, 148 Mass., 235; Ward v. Johnson, 95 Ill., 215.

Such societies were authorized, because their objects are conducive to the public good. These are to induce persons of small means, who have not sufficient money to make a loan, or sufficient experience to invest it, to husband their resources by providing a safe agency for receiving and loaning their money, wholly and solely for their benefit.

In some respects the relations between such societies and their depositors are hardly distinguishable from those between corporations and their stockholders. The property of the former is held in trust for its depositors. That of the latter for its creditors and stockholders. Upton v. Tribilcock, 91 U. S. 45, 48. The capital of the latter cannot be withdrawn until the winding up of the company, and the stockholders are given certificates as evidence of their interests in the company. The society can have no capital or anything with which to cany on business other than the deposits; and, in order that it may induce people to entrust their money to its care and so accomplish the objects of its creation, it is necessary that the depositor may,'from time to time, put in whatever he can spare, with the assurance that he can, at any time, upon short notice, draw out the whole or any part, as his desires may prompt or necessities require, without awaiting the winding up of the institution, or relying upon the uncertainties of finding a purchaser for his interest. And so the law provides that he may withdraw his deposits upon thirty days’ notice, and that an account shall be given him in a book, or otherwise, of the sum deposited, which shall be the evidence of his property in such society.

In Jones v. Davis, 85 Ohio St. 474, it was determined that for the purposes of taxation, the capital stock of the corporation is represented by whatever it is invested in, and that when the corporation is required to list its personal property for taxation, the owner of shares of its capital stock is not required to list his shares for taxation.

Judge Cooley, speaking of what is meant by duplicate taxation in its proper sense, and “which would render it wholly inadmissible under any constitution requiring equality and uniformity in taxation,” and then giving instances of such duplicate taxation, says:

“The same may be said of a tax on the property of the corporation, and also on the capital which is invested in the property; if the latter is taxed as property, this also is duplicate taxation, and as much unequal as would be the taxation 'of a farmer’s stock by value when on the same basis it is taxed as a part of his general property. When, for instance, the money paid in as capital of a manufacturing corporation has beer; invested in buildings and machinery, these are what then represent the capital, and to tax the capital as valuable property distinct from that which then represents it, would be to tax a mere shadow; it would be to make the shadow stand for the substance in order that it might be taxed, when the substance itself is taxed, directly under its own proper designation.”

And in a foot note he says:

“That the capital of a corporation is represented by the property in which it has been invested can hardly require the citation of authorities, but the following may be referred to” — citing twenty-six cases from twelve different states. Cooley on Taxation, 225.

Now, it is evident that the depositors’ property in such society and the deposits, or that in which they are invested, are for the purpose of taxation just as clearly reciprocals as are stockholders’ shares of stock and the capital stock or ---:-- that in which it is invested; and if the depositors are taxed upon the reciprocal of the deposits or that in which they are invested, and the society is taxed upon the real estat-e, furniture, surplus and undivided profits, the whole property is taxed, and not only is no provision of the constitution violated, but, perhaps, all is exacted that' the constitution will permit.

In Exchange Bank of Columbus v. Hines, 3 Ohio St., 1, 15, Bartley, C. J., says:

“Uniformity in taxation im plies equality in the burden of taxation.”

And, on page 43, Thurman, J,, says:

“In regard to taxation, equality is the great idea of the constitution. Inequality was the pre-existing evil. Equality is the remedy. ”

And, on page 45, speaking of section three, of article twelve of the constitution, he says:

“Eor this same section of the constitution declares that the objects of taxation belonging to banks and bankers shall be taxed, so that all property employed in banking shall always bear a burden of taxation equal to that imposed on the property of individuals. The burden is to be not less, not greater, but equal.”
“ It is a fundamental maxim in taxation that the same property shall not be subject to a double tax by the same party, either directly or indirectly; and where it is once decided that any class of property is liable to be taxed under one provision of the statutes, it has been held to follow, as a legal conclusion, that the legislature could not have intended that the same property should be subject to another tax, though there may be general words in the law which would seem to imply that it may be taxed a second time. This is a sound and very just rule of construction, and it has been applied in many cases where, at first reading of the law, a double taxation might seem to have been intended. ” Cooley on Taxation, 227.

The power of taxátion is included in the legislative power, and under this power, subject to the limitations of section 2 of article 12, that “Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money,” and other limitations of the constitution, all our laws defining the different subjects of taxation, providing for the listing, valuing and taxing of property and for the collection of taxes, have been passed, and subject to these limitations the legislature is the sole judge of the mode and manner of and the agencies which shall be employed in its exercise. And in the exercise of this power the legislature may tax property in the possession or under the control of an agent in the name of such agent, or in the name of the owner, or partly in the name of each, subject to the constitutional mandate that all the property must be taxed, and according to its true value in money.

It only remains, then, to determine whether the depositors ■ are required to return for taxation their “property” in these societies.

Section 2730 consists of definitions, and some of them-are as follows:

“The term ‘money’ or ‘moneys,’ shall be held to mean * * * every deposit which the person owning, holding in trust, or having the beneficial interest therein, is entitled to withdraw in money on demand; the term ‘credits’ shall be held to mean the excess of the sum of all legal claims and demands, * * * including deposits in banks or with persons in or out of this state, other than such as are held to be money, as hereinbefore defined.” * * * *
“Also personal property shall be held to mean and include, first, every tangible thing being the subject of ownership, whether animate or inanimate, other than money, * * * second, the capital stock, undivided profits, and other means not forming part of the capital stock of ery company, whether incorporated or unincorporated, and every share, portion, or interest in such stock, profits or means, by whatsoever name the same may be designated. ”

That is to say personal property shall be held to mean and include every interest in the capital stock, undivided profits, and all other mean» not forming part of the capital stock, by whatsoever name the same may be designated, of every company, whether incorporated or unincorporated.

Section 2731 provides that:

“All property, whether real or personal, in this state * * * and all moneys, credits, investments in bonds, stocks, or otherwise, of persons residing in this state, shall be subject to taxation, except only such as may be expressly exempt therefrom.”

Section 2735 prescribes where, and section 2736 as.of what day, personal property is to be listed, and section 2737 what the list or statement shall contain, and some of the specifications are as follows:

“Seventh — The total value of all articles of personal property, not included in the preceding or succeeding classes.
“Thirteenth — Moneys on hand or on deposit, subject to order.
“Fourteenth — The amount of credits as hereinbefore defined.
“Fifteenth — The amount of all moneys invested in bonds, stocks, joint stock companies, annuities, or otherwise.”

Section 2739 lays down the rule for valuing personal property:

“At its usual selling price or at such price as it is believed could bo obtained therefor, in money; investments in bonds, stocks, joint stock companies, or otherwise, shall be valued at the true value, thereof, in money; money, whether in possession or on deposit, shall be entered on the statement at the full amount thereof, * * * and every credit for a sum certain, * * * shall be valued at the full amount of the sum so payable.”
“Section 2746: Personal property of every description, moneys and credits, investments in bonds, stocks, joint stock companies, or otherwise, shall be listed in the name of the person who was the owner thereof on the day preceding the second Monday of April, in each year: but no person shall be required to list for taxation any share or shares of the capital stock of any company, the capital stock of which is taxed in the name of such company.”

These laws were enacted with a view to a compliance with the constitutional mandate that:

“Laws shall be passed, taxing by a uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money.”

And, whether or not the interests or“property” of depositors, in savings societies organized under the law of 1867, might be held to be a deposit, which the owner is entitled to withdraw in money on demand,and therefore comprised in the term “money, ”or a deposit which the owner is not entitled to withdraw in money on demand,and therefore embraced in the term “credit,” there can be no doubt that that part of the definition of personal property in section 2730, already given, to-wit: “Personal property shall be held to mean and include every interest in the capital stock,undivided profits, and all other means not forming «part of the capital stock, by whatsoever name the same may be designated, of every company, whether incorporated or unincorporated, ”is sufficiently comprehensive to include the interests of such depositors, and that they must be returned under the fifteenth item of section 2737. If not, then certainly under the seventh item of that section.

It will be noticed that the subjects of taxation mentioned in the first clause of sec. 2, art. 12, of the constitution are “moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise.”

Section 2730 defines “moneys,” “credits,” “investments in bonds,” and “investments in stocks,” and that part of the definition of personal property already given is an attempt to define the remaining subjects of taxation mentioned in the first clause of sec. 2, art. 12, to-wit:

“Investments in * * joint stock companies, or otherwise. ’ ’
“The true meaning or construction of these provisions may be discovered in the reasonable and proper assumption that the legislature intended to provide for the imposition of taxes in accord with the declared meaning of the constitution. ’’ McIlvaine, J., in Payne v. Watterson, 37 Ohio St. 121, 125.

These words of the constitution which embrace the interests of these depositors, are found in section 2731, requiring such interests to be taxed unless expressly exempt; in section 2737, requiring such interests to be listed; in section 2739, requiring them to be valued at the true value thereof, in money; and in section 2746, requiring them to be listed in the name of the person who was the owner on the day preceding the second Monday of April.

The interests of such depositors are nowhere exempt from taxation, and they would not be exempt even if they had been specified along with shares of capital stock in section 2746, because the capital stock of savings societies organized under the law of 1867, is not taxed in the name of the societies.

In The People v. National Gold Bank, 51 Cal. 508, 510, the court say

“The provisions of the thirteenth section, that the owner or holder of stock in any company, etc., the entire capital of which is assessed or invested in property which is assessed, shall not be assessed for his stock, is, in effect, a provision that when the capital is not so assessed, the stock shall be assessed to the owner thereof. U

In this state'it is not necessary to resort to construction. The decisions of other states may be of little assistance, because of different constitutional and statutory provisions, but attention is called to the following: In Augusta Savings Bank v. Augusta, 56 Me., 176, 178, Danforth, J., says:

“The property taxed is the capital of the bank, and, as such, is made up exclusively of the deposits. The deposits are but the parts, the capital the whole, composed of these parts, and, for the purpose of taxation, are one and the same thing, The depositors are taxable for their deposits in the several towns in which they reside, and the capital made up of these deposits can not be again taxed to the corporation. ”

In Worcester County Institution for Savings v. The City of Worcester, 10 Cush. 128, 129, the question was whether the savings institution was taxable on bank stock in which it had invested deposits, the depositors being taxed on their deposits. It was held the institution was not taxable on the stock. Metcalf, J., says:

“This case is not distinguishable from that of banks and manufacturing corporations, in which the stockholders-, and not the corporations, are taxable for the stock, with the single' exception of the machinery employed in the manufactures. ”

The State v. Sterling, Pres’t of Savings Bank, 20 Md, 502, 518, where the property was 'taxed to the bank, and not to the depositors, the questions were whether the bank could deduct for that portion of the property invested in non-taxable bonds, and also could deduct the $50.00 exemption allowed by law to each depositor, and the $15,000 exemption allowed each charitable organization, Cockran, J., says:

“Standing thus by legislative intendment as reciprocal representatives of each other, a tax on either of necessity becomes a tax on the other, and upon the same principle the exemption of either, from that liability, would operate as an exemption of the other,” and the deductions were allowed.

In Savings Bank v. Nashua, 46 N H., 389, it was h¿Id that the bank was not taxable on bank stock in which it had invested, the depositors being taxed on their deposits. See, also, People ex rel. v. Badlam, 57 Cal. 594; Beery v. Windham, 59 N. H. 288, 289; Savings Inst. v. Gardner, 4 R. I., 484; Rutland Savings Bank v. Rutland, 52 Vt. 461.

But it may be asked: First, why does not a return by the depositors of their interests at their true value in money accomplish a complete taxation of the property?

Second, why can not the property be taxed wholly in the name of the society?

These questions are pertinent only in so far as they may aid in arriving at the legislative intention. Because, if it be determined that the legislature has provided for taxing the property partly to each, that is a matter entirely within its discretion, if the whole property is taxed.

In answer to the first it may be said, that a complete taxation of the property can not be so effected, because, by reason of the peculiar character of such a society, .the value of a depositor’s interest, so long as the society continues doing business, can never rise above par, and, therefore, for the purpose of taxation, does not represent the furniture, real estate, surplus, and undivided profits.

This is so because the depositor has no occasion to sell his interest, the law providing that he *may withdraw his deposit, and no one would give a depositor more than par, because on depositing an equal amount the law gives such person an Ínteres! just as valuable. The real estate and furniture are for the purpose of transacting the business of the society, and the latter depositors would receive from them and from the surplus just as much benefit as the former. The surplus, the law provides, is to be accumulated and held to insure the depositors against loss from a depreciation of investments, and it adds no more to the taxable value of a depositor’s “property” in the society than does other insurance to the taxable value of the property it covers.

In answer to the second question, counsel suggest that it is not practicable,and that it would require the society to withhold from one set of depositors a part of their deposits, ■or the profits thereon, with which to pay taxes on the deposits of another set. So far as it is a question of power, no reason is apparent why the legislature may not tax the ■property wholly in the name of the societies; but in the ■exercise of the power it might be found difficult, if not impossible, to devise a plan which, while practicable in effecting taxation of the whole property, might not at the same time operate to deprive some persons, and those the most •deserving, of the one hundred dollars exemption to which, •by law, under the constitution, all persons are justly entitled.

It is not assumed that all of the foregoing considerations were present in the mind of the legislature. But, whether the result of chance, or design, it would be difficult to devise a better mode for the taxation of this property, or one more just.

In Treasurer v. Bank, 47 Ohio St. 503, the claim was not made, and could not have been made successfully, that the deposits were not the property of the bank. The claim was that section 2759 simply prescribed ihe mode for ascertaining the value of the bank’s property employed in banking, and to sustain that claim it would have been necessary, not only to overrule The Exchange Bank of Columbus v. Hine, 3 Ohio St. 1, but to go beyond the position occupied by Judge Ranney in that case, for he did not claim that debts should be deducted from cash and investments in bonds and stock. But, necessarily, for every dollar of property held by the bank as deposits, a dollar of debts exists from the bank to the depositor; so that when the court in Treasurer v. Bank, supra, had determined that the value of the bank’s property could not be determined by a mode which in effect exempted part of the property from taxation,it was necessary, inasmuch as debts can be deducted in ascertaining the value of credits, to go still farther and determine whether the effect of section 2759 was to exempt part of the property of the bank from taxation by providing for a deduction of debts from cash and bonds, as well as from the sum of all legal claims and demands. The debts exceeded the sum of all the bank’s legal claims and demands, so that an application of the provisions of the section would have exempted the bank’s cash and investments in bonds and stock from taxation to the extent of the excess of the debts over the sum of the legal claims and demands; and the court therefore held the section unconstitutional in so far as it authorizes the deduction of debts from anything but what goes to make up credits.

The legislature, when it passed the act of 1867, providing for the taxation of bank shares and bankers, and which directed the deduction of deposits, assumed that the deposits belonged to the depositors, inasmuch as they were taxed upon them, and that deducting them would leave the bank to pay upon its capital, Other banks were not taxed upon deposits, nor did the shareholders in such banks pay taxes upon deposits in paying taxes upon the value of their shares. The value of such shares is determined by the solvency of the bank, the amount of its surplus and its earnings. The legislature did not regard the deposits as 'debts. A deduction from property liable to taxation is no-" where authorized by reason of debts. “Credits” is a subject of taxation, and by section 2730, the term is defined to mean, in brief, the excess of the sum of all legal claims and demands, due to the person liable to pay taxes thereon, when added together, over and above the sum of legal bona fide debts owing by such person. Debts are considered only in determining credits. Even™such deduction, ever since the decision of Exchange Bank of Columbus v. Hine, 3 Ohio St. 1, was known to be|of doubtful constitutional validity, and never since that decision has it been claimed that debts can be deducted from|anything but the sum of all legal claims and demands.

The legislature was mistaken as to^the relations existing between an unincorporated bank”and its general depositors. The deposits belonged to the bank, and could not, therefore, be deducted from the sum of its holdings ^determining the amount upon which the bank was to be taxed,[nor[could they be deducted as debts from cash and stocks and bonds. As to the ownership of the deposits, the capital, of[a savings society organized under the act of 1867, the legislature was not mistaken.

And the fact, if^it be a[fact, that a depositor may,¡[upon demand, the expiration of notice and refusal of the society to pay him the amount of his deposit, the society being solvent, sue the society for the amount of his deposit as for a debt, can not in any way affect the ownershipjjof the property of the society by its depositors. The right to withdraw, as has been already pointed out, being necessary in order to obtain depositors, is expressly given- by the act of^ the legislature, and provided for by the rules, regulations^- and by-laws of the society, to which every depositor is required by law to assent.

Section 2759b requires a return^of all the property, and the society to pay taxes upon all of it that is taxable excepting so much of it as is represented by the deposits, and the depositors being required to return and pay taxes^upon the value of their interests, which, for the purpose of taxation, are the reciprocals of the^deposits, a complete taxation of the whole property is effected, and no provision of the constitution is violated.

’ The defendant did not make a return for the year 1892, in accordance with the provisions of section 2759b, but the court of common pleas found, as a conclusion of fact, and the conclusion is sustained by the evidence, that the amount returned for that year by the defendant, and upon which it paid taxes, was in excess of the amount upon which it was required to pay, as ascertained by that section.

Chase Stewart, W. A. Scott and N. JS. Warwick, for Plaintiff.

Bowman & Boioman and Oscar T. Martin, for Defendant.

The returns for the preceding years were not false. There are no errors prejudicial to the plaintiff in error apparent in the record, and the judgment of the court of common pleas is affirmed.