text:
    Smith v. Smith et al.

      Post nuptial agreement — Release by each party of all interest in property of other — Husband died intestate and without issue— Widow may inherit property of husband.

    A husband and wife made and entered into an agreement of separation, whereby the husband conveyed to the wife certain real estate, paid her $500.00 in money and allowed her to remove her own furniture, and both then stipulated, that “ each party releases any and all claim, right, title or interest, either vested or contingent in or to any property, present or future acquired, belonging to the other.’ ’ The wife survived the husband, who died intestate and without issue, leaving certain real estate, subject to descent as non-ancestral property under the provisions of section 4159, • Revised Statutes. Held: That the effect of the language was to give to the husband of the wife the full dominion of his own property, with power to dispose of it by will or otherwise, without the assent of the wife during her life, but did not affect her right to inherit from him as his widow any property of which he died seized.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Athens county.

      Wood & Wood and Grosvenor, Jones & Worstell, for plaintiff in error.
    Upon the death of Charles D. Smith, the estate left by him, subject to the payment of his debts, immediately passed, either by will to a devisee or devisees, or by descent to his heir or heirs. It could pass in no other way. Crane v. Doty, 1 Ohio St., 279; Bane v. Wick, 14 Ohio St., 505; Gano v. Fisk, 43 Ohio St., 462.
    Upon the death of Charles D. Smith all dominion over his property passed to the law, and the law accepted the dominion and sent it in its own way, absolutely irrespective of any plan or wish of Mr. Smith, or of any other person. Even had Mr. Smith made a will declaring that his wife should have none of his estate but not otherwise disposing of it, that will would not have prevented the widow’s taking the estate as heir. Crane v. Doty, 1 Ohio St., 282; 1 Jarman on Wills 5th Am. Ed., 619; Needles Exrs. v. Needles et al., 7 Ohio St., 432; Gibson et al. v. McNeeley et al., 11 Ohio St., 131; 4 Kent’s Com., 525; Tiedeman on Real Property, pp. 508, 663.
    The party to whom the law passes property by descent, must take it, whether he wishes to do so or not. Bingham on Descent, page 2; 3 Washburn on Real property, 4th ed., p. 6.
    The law favors the vesting of estates. Linton v. Laycock, 33 Ohio St., 128; Bolton v. Bank, 50 Ohio St., 293.
    And since our statutes of descent are so framed as to cover all possible cases, in determining questions of descent, only t'he statutes are to be considered. Penn et al. v. Cox et al., 16 Ohio, 30; Drake et al. v. Rogers, 13 Ohio St., 21; Sheffield v. Lovering, 12 Mass., 490. Charles D. Smith, having died childless and intestate, the law seized his estate and passed it to Lizzie Smith his widow. Revised Statutes, section 4159; Patterson v. Lamson, 45 Ohio St., 77. The fee also vested in her. Stemble et al. v. Martin et al., etc., 50 Ohio St., 495; 1 Johns Chancery, N. Y., 417; Armington et al. v. Armington et al., 28 Ind., 74; Foster’s Appeal, 74 Pa. St., 371.
    The claim of the defendants in error to the estate of Charles D. Smith must, be based entirely on the contract of July 8,1891. Does this contract bar Lizzie Smith from taking the property as his sole heir, under section 4159, Revised Statutes?

      The property in controversy was owned by Mr. Smith at the time the contract was made. The phrase “future acquired” then necessarily related to property that might thereafter be acquired by either party. The contract does not purport to release any “future acquired” rights that either might thereafter acquire in the property of the other by reason of deed, will, descent or otherwise.
    Even if the contract had undertaken to convey or release to Mr. Smith or to any one else the interest that Mrs. Smith might inherit as his heir, it would have been entirely inoperative and void either as a sale or release. Shephard’s Touch, 322, 328.
    So that if Mrs. Smith had intended to either convey or release her hope of succession as heir to her husband’s estate, she could not have done so. Revised Statutes, section 3113; Hart v. Gregg, 32 Ohio St., 502; 4 Kent Com., p. 262 and note (a) same page; Jeffers v. Lamson, 10 Ohio St., 106.

      J. M. McGillvray; Sleeper & Sayre and L. M. Jewett, for defendants in error.
    Our contention is that, by the contract mentioned, Charles D. Smith and Lizzie Smith, as husband and wife, in view of a permanent and final separation, made a permanent and final division and partition of their estates, and not only as to present interests in existing property, but of all future interests, whether in existing or after acquired property.
    The fact that the parties of the contract were husband and wife has no weight. Section 3112, Revised Statutes.
    Contracts of separation, when fair and reasonable in the light of the surroundings of the parties, are valid and binding. Section 3113, Revised Statutes; Bettle v. Wilson, 14 Ohio St., 266; 2 Pom. Eq. Juris., section 932.
    The petition alleges, and the demurrer concedes, that the division of property made by the contract of July 8, 1891, was just, fair, and reasonable; and, therefore, from then until the death of the husband, the wife had no claim upon him or his property, for support, inchoate dower, or otherwise.
    Did plaintiff in error, by the death of her husband, acquire any interest in his property that was neither contingent nor inchoate while he was alive? Unless she did, she has no right to any portion of the property in question. • And how she could is answered by counsel for plaintiff in error by the oft-repeated statement that the law seized and transmitted it to her, notwithstanding the contract, and whether she desired to take it or not.
    If a wife can, by a post-nuptial contract, release her right to a distribution share of her husband’s personal estate, as in Miller's Ex. v. Miller, 16 Ohio St., 528, and of her right to dower, as expressly held in Thomas v. Brown, 10 Ohio St., 247, what reason is there, and where is the authority that she cannot relinquish her right to claim all of his estate, in the event of his survival, where the husband leaves no children ?
    It has long been the rule of law that the right of a widow to claim dower could be barred by either an ante- or postnuptial contract, where such contract provided for a just and reasonable settlement upon the wife. McLeod v. Board, 94 Am. Dec., 3011.
    The widow is not and can not be the heir of the husband as stated in brief for plaintiff in error.
    1 Bouv. Law Diet., Tit. “Heir.”

      It can not therefore include a widow; and, under, our statutes and those of similar nature, the interest of a widower or a widow in the estate of the relict is in virtue of the marital relation rather than as heir of the deceased consort. McMenomy v. McMenomy, 22 Iowa, 148; Journell v. Leighton, 49 Iowa, 601; Richardson v. Martin, 55 N. H., 45; Gauch v. St. Louis Mut. Life Ins. Co., 38 Ill., 251; Keteltas v. Keteltas et al., 72 N. Y., 312.
    Even if it be true that plaintiff in error was the heir of her husband, and' as a matter of law an executory contract for the release of the interest of an heir in a parents estate would not be in force, yet such is not the rule in equity as to an executed contract. 2 Story Eq., Juris., section 1040; 2 Pom. Eq. Juris., section 935; Haven v. Thompson, 26 N. J. Eq., 383; Brands v. De Witt, 44 N. J. Eq., 545; In re Garcelon, 104 Cal., 570; Bishop v. Davenport, 58 Ill., 105; Kershaw v. Kershaw, 102 Ill., 307; Crum v. Sawyer, 132 Ill., 443; In re Powers Est., 63 Pa. St., 443; Wethered v. Wethered, 2 Sim., 183; Stover v. Eyclesheimer, 3 Keyes, N. Y., 622; Curtis v. Curtis, 40 Me., 24; Fitzgerald v. Vestal, 4 Sneed, Tenn., 258; Quarles v. Quarles, 4 Mass., 680; Kenney v. Tucker, 8 Mass., 143; Trull v. Eastman, 44 Mass., 121; Wright v. Bucher, 72 Mo., 179; McDonald v. McDonald, 5 Jones Eq. N. C., 211; Merriwither v. Herran, 8 B. Monroe, Ky., 162; Needles v. Needles, 7 Ohio St., 432; Hart v. Gregg, 32 Ohio St., 511; Rosenthal v. Mayhugh, 33 Ohio St., 168; Young v. Hicks, 92 N. Y., 235: In re Estate of Noah, 73 Cal., 583.
    While the petition is silent upon the subject of the character of the deed made by Smith to his wife for the part of lot 501, and does not state whether it was or was not a warranty deed, yet the contract provides that it was to be conveyed to plaintiff in “fee simple” and “with full power of incumbrance and sale” without his consent. The contract, in terms provided for a full title, a complete relinquishment of all claims, whether vested or contingent and full power of disposition. What more could it do ? And had plaintiff in error died first, can there be any question but that Charles D. Smith would have been estopped to claim an interest in lot 501, because of his survivorship? It is not necessary to an estoppel that there be an intent to deceive, it is sufficient if the actions of the party had that effect.
    Under our law a husband or wife can not b3r will cut off the other from dower,- or a distribution share in the personality. Revised Statutes, 5963.
    The widow or widower has an election to take under a will, or under the statute, within a prescribed time. Young v. Hicks, 92 N. Y., 235; Estate of Noah, 73 Cal., 583.
   Minshall, J.

The brothers and sisters of Charles ,D. Smith, deceased, brought suit in the common pleas of Athens county, against Lizzie Smith, the widow of the deceased, to compel a conveyance to them of the land she inherited from her deceased husband. He died seized of the land and without issue, and, being non-ancestral, descended to her as his surviving wife, under the provisions of section 4159, Revised Statutes.

The conveyance is sought by reason of the provisions of an agreement of separation that had been made and entered into between them during their marriage. It is as follows :

“Agreement made and entered into this 8th day of July, 1891, by and between Charles D. Smith and his wife, Lizzie Smith, witnesseth, that said parties- having concluded that they can and will live together no longer as husband and wife, not being able to dwell together in peace, they do mutually agree to the following division of the property of said parties: Said husband agrees to convey in fee simple to his said wife, part of in-lot 501, in the village of Athens, Ohio, * * * and to also pay said wife the sum of $500.00 cash in hand, to allow her to remove all furniture belonging to her, and each party releases any and all claim, right, title or interest, either vested or contingent in or to any property, present or future acquired belonging to the other, and it is further agreed, that if either should secure a divorce, that neither shall ask or receive any alimony of the other, and each party agrees to execute any .deeds or papers necessary to convey a clear title that the other may ask to property owned by him or her free of any further compensation than herein provided, in order tha-t the spirit of this agreement may be carried out, and it is agreed that each may have free and. untramm eled use and enjoyment of the property owned by them respectively, with full power of encumbrance or sale without the other’s consent. It is further agreed, that if said wife should agree, to sell said real estate, she shall give said C. D. Smith, the option to take it at the price she may finally agree to take of any other person. Witness our hands the day above written.
“Charles D. Smith.
“Mrs. Lizzie Smith.”

The common pleas sustained a demurrer to the petition and dismissed the action; on error, the circuit court reversed the judgment and remanded the cause to the common pleas for further proceedings.

No question is raised as to the validity of the agreement; and it is well settled that such agreements when reasonable, and fairly made and entered into will be enforced. Nor is there any question that, but for this agreement, the widow, Lizzie Smith, would be the owner of the property at law- and in equity, under our statute of descents. The contention of the brothers and sisters is, that by the language of the agreement, “and each party releases any and all claim of right,’title or interest, either vested or contingent present or future acquired, belonging to the other,” she is precluded now from the right to take or claim the property as the heir of her deceased husband under the statute, and that she should be required to convey it to them. The only question that need be determined in this case is, as we think, whether by the above language, she thereby waived the right to inherit such property as her husband might die seized of; if not, then it is not necessary to determine whether an agreement for a consideration to renounce an expectancy of inheritance, is valid or not. It has generally been held not to be the subject of a contract of any kind. Needles, Exr. v. Needles, 7 Ohio St., 432, and authorities there cited. But conceding the contrary to be true what then is the proper construction of the language in the agreement, just quoted ? After carefully considering it, in connection with the whole agreement, we are satisfied that it cannot be construed to include the wife’s expectancy of inheritance under the statute of such real property as her husband died seized of, and intestate. Broad as the language is, it falls short of this construction. It simply includes a “vested or contingent” title or interest in any of the property “belonging to the other” — that is, such an interest as cannot be affected by any disposition made of it by will or otherwise, by the one without the consent of the other. But an expectancy of inheritance by one of the property of another is not such an interest. It is regarded in law as a mere possibility, as it may be disposed of by the ancestor, either by deed or will as he may see fit; and is therefore neither a vested nor contingent right of any kind. A contingent right of whatever. nature in any subject of property, is one so far fixed that it cannot be affected by the disposition of any one subsequent to its creation without the consent of the party affected.- It may never take effect as a vested estate, for the contingency may never happen on which it is limited; hence it can not and does not rest upon the uncertainty as to whether one, who is the owner of the property in fee simple, will exercise the power incident to his ownership of disposing of his property as he sees fit, or not. Such an interest is not a contingent one within the meaning of the law, but.a mere possibility and in no way the subject of property.

There is nothing unfair nor unreasonable in the construction given this agreement. It gives full effect to what must be supposed to have been the object of both parties to it. They were dealing with respect to each other and not with respect to others. Each desired to secure the full dominion of the property allotted to himself or herself, and did so by this agreement. Each, by the agreement, acquired the right to dispose of the property given him or her to whoever either might see fit, without the consent of the other. This is seen more clearly from the stipulation, that each should have the “free and untrammeled use and enjoyment of the property owned by them respectively, with full power of incumbrance or sale without the other’s consent.” They were not then dealing for their heirs or for any one else, but for themselves. Though under the terms of the agreement they lived separately, yet they chose to sustain and did sustain to the time of his death, the relation of man and wife. Whilst he might have disposed of his property by will or by deed of conveyance to .his brothers and sisters, yet he did nob, but left it to descend as at law. How then, can a court say that this, under the agreement, is contrary to his intention, and that his widow, to whom the property has descended, shall be compelled to convey it to his brothers and sisters ? They are simply volunteers, and have no rights with respect to the inheritance other than such as are derived from the law. Permitting the widow to take the inheritance under the statute does not violate a single term of the contract of separation. He enjoyed during his life the- full dominion of his property, and that is all he stipulated for. He could, had he desired, in the exercise of this full dominion, have given the property to his brothers and sisters, but he did not. Hence, permitting the property to descend as appointed by the law, can be a matter of surprise or injustice to no one living or dead. The fact that they lived separately is not a sufficient reason for supposing that he desired that his property should descend, to his brothers and sisters, rather than to his wife. It is reasonable to suppose that he knew that he could dispose of his property by will as he saw fit, and that from making no will he purposely left it to descend to his wife. But it is not now-material what he may have .thought about it. The agreement contains no stipulation indicating that either renounced any right of inheritance in the property of the other. All that either renounced, was any right or interest, vested or contingent, in the property of the other, that would restrain the latter in exercising full dominion over his or her portion of the property divided.

The case of Miller, Exr., v. Miller, 16 Ohio St., 528, is relied on in support of the claim of the brothers and sisters. In that case it was decided, that a post-nuptial agreement, whereby the wife for a fair consideration, paid by the husband, relinquishes all claim to a distributive share of his personal estate in case she survives him will be upheld and enforced in equity. The case is distinguishable from the one at bar in two important particulars. (1' The thing to be relinquished is specifically stated — it is, all claim to a distributive share of the husband’s personal estate, should she survive him. In the case, at bar, there is no stipulation to renounce the possibility of heirship, could such astipulation be made. (2) The interest renounced in that case is not a mere expectancy or possibility. The right of a wife to a distributive portion of her husband’s personal estate, in case she survives him, cannot be defeated by the will of her husband. Doyle v. Doyle, 50 Ohio St., 330, And there are many respectable authorities to the effect that it cannot be-given away, in the life-time of the husband, in fraud of her rights. Cases cited in Doyle v. Doyle, supra, 345. It is then such an interest of the wife in the personal property of her husband, as that he cannot by will deprive her of it without her consent. With respect to such an interest a contract by tbe wife to release it to her husband for a fair and reasonable consideration paid her, might, with reason, be sustained against her, as was done in the above case. But this as already pointed out, is not so in regard to the right of inheritance, which depends entirely upon the will of the ancestor.

The judgment of the circuit court is reversed, and that of the common pleas affirmed.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    The T. & O. C. Ry. Co. v. Dages, Andrews & Co. The Same Plaintiff v. Daniel S. Ambach et al. The T. & O. C. Ry. Co. v. The Bowler & Burdick Co.
    Error to the Circuit Court of Franklin county.
    Error to the Circuit Court of Lucas county.

      Common carrier — -Liability of — Articles of merchandise carried as baggage — Effect of knowledge on part of carrier — Law of contract.

    Although a common carrier of passengers is under no obligation to carry articles of merchandise as baggage, and although it is not liable for the loss of such merchandise if it is tendered to and received by it as baggage without actual knowledge of its true character; yet if it receives and checks merchandise as baggage with actual knowledge on the part of its agents that it is merchandise, it thereby waives its right to immunity from liability because of the character of such article.
    (Decided October 26, 1897.)
    These cases were orally argued before the different divisions of the court, but in view of the similarity of the question presented, they have been considered by the whole court upon the briefs presented as well as upon the 'points made in the oral arguments.
    Suits were brought by the several defendants in error to recover the value of merchandise in trunks and cases which the company had received and undertaken to carry as the baggage of the salesmen of plaintiffs who were passengers on the company’s train, which trunks and cases were destroyed in a collision by the company’s negligence.
    In view of the fact that this court. does not weigh the evidence to determine controverted questions of fact, the eases present here only a question of law common to all of them. The merchandise was shipped as baggage without extra compensation to the carrier except charges on account of excessive weight. But the evidence in each case tended to show that the carrier, through its agents who received and checked the trunks and cases, had knowledge that their contents were not limited to the personal baggage of the passengers, but contained articles of merchandise. The question of the carrier’s liability upon the state of facts which the evidence tended to prove, is raised in the case of Dages, Andrews Co. by the refusal of the trial judge to give an instruction to the jury which was requested by counsel for the com-' pany, and by their exception to the instruction given upon the point embraced within the instruction so requested. The instruction requested and refused was as follows:
    “The purchase of a ticket from a railroad for transportation between two points, constitutes and makes a contract between the passenger and the company for the safe transportation of the purchaser and his personal baggage/ to an amount in value and weight provided for in the rules of the company. Such a contract does not authorize the passenger to carry anything but his personal baggage. The contract is for and relates to the transportation of the person, and the carrying of his baggage is but an incident to the main and principal feature or object of the contract. Such a contract would not authorize the passenger to carry the personal baggage of another, nor merchandise for himself, nor goods or merchandise for another.”
    The following instructions were given:
    “A traveler who presents to a carrier of passengers, a trunk or valise, such as is commonly used for the transportation of wearing- apparel, represents by implication, that it contains only such articles as are necessary for his comfort and convenience on the journey, and if it, in fact, contains merchandise or other valuables, and the fact is not mentioned, the traveler is guilty of such a legal fraud as to absolve the carrier from the extraordinary liability of insurer.
    “A carrier of passengers is not bound to inquire as to the contents of a trunk, delivered to it as ordinary baggage such as travelers usually carry, even if the same is of considerable weight, but the carrier may rely upon the representation, arising by implication, that it contains nothing more than baggage.
    “The plaintiffs seek to recover upon an alleged agreement entered into by their agent, Mercer, with the defendant, whereby the defendant agreed and undertook to carry safely the sample cases of the plaintiffs from the station ,at Glouster to the station of Millérsport, and that the agents of the defendants at Glouster, had actual personal know!edge that the trunks contained merchandise and not the personal baggage of Mr, Mercer,
    “The burden of proof on both these questions is on the plaintiffs, and it will be incumbent' on them to show by a clear preponderance of evidence the truth of these allegations.”
    In the case of Ambach & Co., there was a similar request and instruction. In both cases the jury found for the plaintiffs and judgments were rendered accordingly; and both judgments were affirmed in the circuit court. Judgments in favor of the plaintiffs were entered in the common pleas and affirmed in the circuit court.
    In the Bowler & Burdick Company’s case, evidence was introduced tending to show that when the company’s agent received the cases and trunks, he had knowledge that their contents were not limited to the personal baggage of the passenger, and that they, contained merchandise. At the conclusion of the evidence the trial judge directed the jury to return a verdict for the railway company. The judgment of the court of common pleas in favor of the carrier upon the verdict returned pursuant to such instruction, was reversed by the circuit court.

      Doyle & Lewis; Taylor, Taylor & Taylor and Bargar & Bargar, for plaintiff in error.
    Brief of Doyle & Lewis.

    The trunks did not contain what are included in the contract made by a passenger for his baggage.
    The articles which a passenger contracts to have carried as baggage, are solely such as are necessary to his personal wants, convenience or comfort, in the particular journey he is making, and if he includes in his baggage articles not provided for in his contract, he must be presumed to assume the risk of the loss of such articles. The only relation existing between Burdick, or his principals, and The Railroad Company, was that of passenger and common carrier. Bank v. Marietta & Cincinnati Railroad Co., 20 Ohio St., 259.
    It is not enough to say that The Railroad Company might have known that the passenger’s trunks contained other than personal baggage. There was a specific contract for the carrying of the passenger and his personal baggage; the passenger made no statement to the carrier that he desired to enter into any other contract than that of passenger with his ordinary bag’gage, made no disclosure as to the contents of his trunks, or the value of such contents, and no opportunity was afforded to the carrier to know of the nature or extent of the additional liability which the passenger now endeavors to attach to his contract, and no charge made or compensation tendered for the additional liability, although the passenger made the statement as to excess weight of his baggage, and paid for that as required by his contract. Bluemantle v. Fitchburg Railroad, 127 Mass., 322; Alling et al. v. Boston & Albany R. R. Co., 126 Mass., 121; Dunlap v. International Steamboat Co., 98 Mass., 371; Stimson v. Connecticut River Railroad Co., 98 Mass., 83; Michigan Central Railroad Co. v. Carrow, 73 Ill., 348.
    The cases that hold the doctrine, the carrier is to inquire as to the contents of the package offered are in reference to carriers of freight, and not of passengers and their baggage. There is a reason for the distinction that will readily be perceived and appreciated. Carriers of freight receive all kinds of packages, some valuable and-othérs- of trifling value. This fact has been held to impose upon them the duty, in all cases, in the absence of fraud and deceitful practices, to inquire of the shipper as to the contents of the package, if they would protect themselves in the carriage of valuable freights. It is their duty to receive all kinds of freight, whether of great value or otherwise. The shipper is not bound, in the first place, to disclose the nature of the contents of the package, unless he is inquired of concerning it.
    But this rule pre-supposes good faith in the shipper. If the owner be guilty of any fraud or imposition, in respect to the carrier, as to the nature and value of the parcel, he cannot hold him liable, in the capacity of an insurer, for any loss that may occur. 2 Kent, 603 and 604; Story on Bailments, section 565; Cincinnati & Chicago Air Line Railroad Co. v. Marcus, 38 Ill., 219; Chicago & Aurora Railroad Co. v. Townsend, 19 Ill., 578; Relp v. Rapp, 3, Watts and Ser., 21.
    But the rule is different in regard to the baggage of a traveler. As we have seen, the fact that the traveler presents a parcel as baggage, whether contained in a trunk or satchel or other convenient mode of carrying baggage, it is upon the implied representation it contains only baggage, and the carrier is not bound to inquire as to the specific contents.
    If this implied contract with the carrier of passengers is tobe varied, modified or enlarged, itmust be by direct notice of the contents of the package offered as baggage, which, in effect, would amount to a special contract. The company may rely upon the representation that whatever is offered as baggage is that, and nothing else. The law seems to be settled it need not inquire as to its' contents* If the passenger has merchandise checked as bag-gag-e without such notice, the company cannot be held liable as a common carrier. Cahill v. N. & N. W. Ry. Co., 10 C. B. (N. S.), 154; Chicago & Cincinnati Air Line Railroad Co. v. Marcus, supra; Collins v. Boston & Maine Railroad Company, 10 Cush., 506; Great Northern Railroad Company v. Shepard, 8 W. H. & G., 30; Batson v. Donovan, 4 B. & A. 2a; Haines v. Chicago, St. Paul, M. & O. Ry. Co., 29 Minn., 160; Pfister v. Central Pacific R. R. Co., 70 Cal., 169.
    The English rule in cases of this, kind is stated in Cahill v. L. & N. W. Ry. Co., 10 C. B. & S., 154; also 13 C. B. &. S., 818.
    There is no evidence of any kind tending to show that any of the agents or employees of The Toledo & Ohio Central Railway Company had any knowledge or opportunity of knowing, of the contents of the trunks in question. Railroad Co. v. Campbell, 36 Ohio St., 647.
    A very full discussion of the questions involved in this case is bad by the Supreme Court of the United States in Humphrey v. Perry, 148 U. S., 627.
    Brief of Taylor, Taylor & Taylor.

    The rules of the railroad allow baggage in the weight of 150 pounds, and $100 in value. This we maintain is the limit of the defendant’s liability. It is not liable for samples of merchandise which may be carried in a trunk or trunks, in addition to or as the personal baggage of the passenger. Hutchinson on Carriers, section 680; Hawkins v. Hoffman, 6 Hill, 589; 148 U. S., 627; 126 Mass., 221; 25 Wendell, 459.
    It may be said generally that by baggage we are to understand such articles of personal convenience or necessity as are usually carried by passengers for their personal use, and not merchandise or other valuables, although carried in the trunks of passengers, which are not however, designed for any such personal use but for other purposes, such as a sale and the like. Hutchinson on Carriers, section 679; Story on Bailment, section 499; Collins v. The B. & M. Ry., 10 Cushing, 506; Jordon v. Fall River Ry., 5 Cushing, 69.
    When a passeng-er buys a ticket and pays his fare in the absence of a contract to convey samples or merchandise, the contract in law is limited to the safe transportation of the passenger and his personal baggage. Alling v. Boston & Albany Ry., 126 Mass., 130; Stimson v. C. R. Ry., 98 Mass., 83.
    The agent of a railroad company who. sells a ticket or checks baggage is not required to inquire as to the contents of a trunk presented as personal baggage, and the company is not liable for the loss of merchandise checked as baggage, unless there exists an agreement between the passenger and the company; or the agents of the company had full knowledge of the contents of the trunk, and checked them for carriage as baggage. Hutchinson on Carrier, section 685; 52 New York, 429; 35 Ohio St., 541.
    The rules of the T. & O. C. Ry. in force at the time forbid agents fro'm inquiring into the character of the baggage of passengers, and is as follows:
    “You are supposed to know the character of any passenger’s baggage. If passengers in having baggage checked should disclose the fact that it contains valuable jewelry or merchandise, they should be referred to the express company.”
    This shows conclusively that the company did not intend to transport merchandise as baggage, and that extra weight of baggage should be paid for as baggag’e and not merchandise; and further that any extra payment on baggage should be for weight without regard to value. It is clear that the company intended to entirely eliminate the question of value beyond what was provided for in their rules, namely, $100. If the question of value arose at the time of checking the passenger’s trunks, then the agent was directed to refuse the baggage and to refer the passenger to the express company where transportation might be had by paying for both weight and value.
    Further the carrier must be compensated in proportion to the risk incurred. This is a fundamental right — a fundamental principle — -which underlies all such contracts or obligations. Humphreys v. Perry, 148 U. S., page 641.
    Samples taken by merchant’s clerks in their trunk are not embraced within the meaning of the term “baggage,’’and when checked as baggage the rules concerning baggage must govern with all their restrictions and limitations as to the liability of the company. Hawkins v. Hoffman, 6 Hill, 586; Hutchinson on Carriers, section 680-681.
    The plaintiff must show actual knowledge on the part of the defendant’s agent, and purpose upon his part to transport the merchandise as baggage. If the evidence shows that’ the plaintiff’s agent offered the trunks as baggage, he by implication representing that they contained no property not included within that class and description, and the carrier was justified in receiving the trunks as baggage under these representations; and the only liability it assumed was that which attached to the transportation of the baggage under the rules and regulations of the company then in force. Dunlap
      v. International St. Co., 98 Mass., 371; Alling v. B. & A. Ry., 127 Mass., 121.
    No contract to convey merchandise as baggage can be construed from the fact of a charge for over weight. The company had a right to charge for over weight of baggage and also to limit its liability as to the value of the baggage. Pennsylvania Company v. Miller & Co., 35 Ohio St., 541; Talcott v. TheWabash Railroad Co., 66 Hun., 456; Stoneman v. Erie Railroad Co., 52 N. Y., 429; Sloman v. Great Western Ry. Co., 67 N. Y., 211.
    There can be no assumption of any kind in this case. The facts preclude assumptions. The agent at Glouster, where the trunks were checked, testified that he had no authority to receive and check them as merchandise. He testified that he did not know that the passenger worked for Ambach & Co., that he did not know the character of the passenger’s baggage; that the passenger did not tell him that the trunks did not contain baggage, but merchandise; that there was nothing-said about what the character of the bag-gage was; that he had not seen the trunks open; that he did not know anything about the passenger’s baggage.
    Brief of Bargar & Bargar.

    The court of common pleas, in its charge to the jury, excepted to at the time given, laid down two rules for determining the liability of the railway company herein:

      First Rule• — -“Still the common carrier if he takes charge of such property for the purpose of transporting, in ignorance of its true character, he assumes the relation to it of an ordinary bailee, and is bound to take such care of it, asmen of ordinary care and prudence would usually take of their own property under the same circumstances. But in such' case the carrier is not liable unless the evidence shall affirmatively show by a preponderence thereof that the carrier failed and neglected to take such ordinary care of the goods, and that in consequence of such negligence by the carrier the goods were destroyed or damaged. The burden of proving such negligence rests upon the plaintiff.”

      Second Buie — “Where, however, a common carrier receives for transportation a traveler’s baggag’e with the knowledge that such baggage consists of merchandise, or other valuables, which are desig’ned for purposes of business, and not for the traveling expenses, personal use, comfort, instruction, amusement or protection of the passenger, then and in such case, the carrier becomes immediately responsible for its safe delivery at the place of destination, and its liability is that of an insurer.”
    Under the first rule the railway company would be held liable as a bailee for hire, or a warehouseman. But where is the contract creating such a relation? The railway company is not liable as a warehouseman, for the record shows that such a liability was never created. The case of Pennsylvania Co. v. Liveright, 2 Am. & Eng. R. R. cases U. S., decided by the appellate court of Indiana, September 17,- 1895, defines the commencement of a company’s liability as warehouseman. Roth v. Railway Co., 34 N. Y. 548; Burnell v. Railway Co., 45 N. Y. 184; Matteson v. Railway Co., 76 N. Y., 381; Railway Co. v. Mahan, 8 Bush., 184; Wald v. Railway Co., 92Ky., 645; Mote v. Railway Co., 27 Iowa 22; Arthur v. Railway Co., 61 Iowa, 651; Railway Co. v. Capps, 2 White & W. Civ. Cas., Ct. App., 35; Ouimit v. Henshaw, 35 Vt., 605; Linn v. Railway Co., 10 Mo. App., 125; Railway Co. v. Addizoat, 17 Ill. App., 632; Hutch. Carr, section 708; 3 Wood R. R. (Ed. 1894) sections 400, 402.
    At the time of their loss, the goods were in the hands of a common carrier as baggage; but not being baggage, no contractof insured transportation was created, a fortiori, neither was a contract of bailment for hire created. Talcott v. Wabash Ry. Co., 66 Hun., 456; The Penn. Ry. Co. v. Miller & Co., 35 Ohio St., 541; Bluemantel v. Fitchburg Railroad Co., 127 Mass., 322; 127 Mass., 325. By the sale of a ticket to a passenger, the carrier becomes liable for his safe transportation and reasonable personal baggage, but not for merchandise delivered by him. as baggage, without agreement to that effect. Blumenthal v. Maine Cent. R. R. Co., 11 Atl., 605; Stimson v. Riv. Conn., R. R., 98 Mass., 83; Connely v. Warren, 106 Mass., 146.
    Such agreement cannot be proved, or such responsibility created by a mere evidence of a custom railway corporations to carry similar packages as personal baggage; or by evidence that the package is of such appearance as to raise a suspicion or inference that it contains merchandise. Alling v. Boston & Albany R. R., 126 Mass., 121; Michigan Central R. R. v. Carrow, 73 Ill., 348; Cahill v. London & Northwestern Ry., 10 C. B., 154 ; Belfast & Ballymena Ry. v. Keys, 9 H. L., 556.
    The rule that carriers are liable for a loss of merchandise which they know tobe such is limited to those cases where the merchandise is paid for as freight by extra compensation. Bluemantle v. Fitchburg R. R., 34 Am. R., 379 — note; Stoneman v. Erie Ry. Co., 52 N. Y., 429; Slornan v. Gt. West.

      Ry., 67 N. Y., 208; Graffam v. Boston & Maine R. R., 67 Me., 234.
    The fact that commercial travelers or others are accustomed to carry merchandise in passenger trains, without paying more than the usual price of the ticket of the passenger, even- if known to the carriers, will not render them liable for such merchandise. Travelers carry such merchandise at their own risk. Michigan Central Ry. v. Carrow, 73 Ill., 348; s. c. 24 Am. Rep., 248.
    A common carrier of passengers and baggage is not liable for its negligence causing a loss of samples carried as baggage. There is no liability either as carrier or bailee. Gurney v. Grand Trunk Ry. Co., 59 Hun., 625; Norfolk & W. R. Co. v. Irvine, 85 Va., 217.
    A railroad company is not bound as a part of its contract to transport a passenger who is employed as a traveling- salesman, to carry as his personal baggage, a ease of sample merchandise. Southern Kan. Ry. Co. v. Clark, 52 Kan., 398.
    The authorities are very numerous to the effect that the term “baggage” or- “luggage” does not include money in large quantities, but is restricted to the passenger’s personal clothing and ordinary traveling paraphernalia or “necessary appendages,” including perhaps money sufficient for traveling expenses. Jones v. Voorhes, 10 Ohio, 150; M. R. Ry. Co. v. Fulton, 20 Ohio, 318; Orange Co. Bank v. Brown, 9 Wendall, 85; Hawkins v. Hoffman, 6 Hill, 586; Hickox v. Nangatuch Ry. Co., 31 Conn., 281; Duffy v. Thompson, Ibid., 178; Doyle v. Kiser, 6 Indiana, 242; Bell v. Drew, 4 E. D. Smith, 59; Bomar v. Maxwell, 9 Humphreys, 621; Fowler v. Dorbon, 24 Barbour, 385; Chicago & Aurora R. R. Co. v. Thompson, 19 Ill., 578 Davis; v. Michigan R. R. Co., 22 Ill., 278; Hutchins v. Western R. R. Co., 25 Georgia, 61.
    If the passenger travels without baggage, the rate of fare is the same as for one who carries baggage. . '
    Every passenger is entitled to carry personal baggage to the end of his journey, in amount equal to 150 pounds weight.
    The contract is for carrying the passenger, the carrying of baggage is but an incident to the main contract.
    What is bag-gage? “The ordinary apparel of the passenger and such other articles as may be necessary to his comfort whilst performing his journey.” Davidson v. Graham, 2 Ohio St., 135; Graham & Co. v. Davis & Co., 4 Ohio St., 381.
    If a traveler includes in his baggage articles not properly baggag-e, he must be presumed to assume the risk of the loss of such articles. Bank v. Marietta & Cincinnati R. R. Co., 20 Ohio St., 259; Simpson v. N. Y., N. H. & Hartford Ry. Co., 16 Misc. Rep. (N. Y.), 613; Beers v. Boston & A. Ry. Co., 34 Atl., 541; Talcott v. Wabash Ry. Co., 35 N. Y., S. 574; Penna. Co. v. Knight et al., 33 Atl., 845.

      Powell & Minahan and Gilbert & Hills, for defendants in error.
    Brief of Powell & Minahan.

    Even if the common carrier did not know that the trunks contained merchandise, still, by taking the property into its charge, it assumed the relation to it of an ordinary bailee and was bound to take such care of the property as a man of ordinary prudence would of his own under like circumstances. Pennsylvania Company v. Miller & Co., 35 Ohio St., 541.

      There is no question but that proof of such a collision as occurred in this case establishes negligence on the part of the railroad company. New Orleans R. R. Co. v. Allbritton, 38 Miss., 242; Delaware Ry. Co. v. Napheys (Pa.), 1 American and English Railroad Cases, 52.
    Proof of injury by collision is prima facie evidence of negligence. Iron R. R. Co. v. John Mowry, 38 Ohio St., 418.
    The proof of collision imposes on the railroad company the burden of proving that it did not occur by reason of its negligence. Graham v. Burlington Railroad Co., 34 American and English Railroad Cases, 397.
    If the common carrier knew when he received these trunks that he was carrying merchandise and not personal'baggage his liability for the property would be exactly the same as it would be for baggage. Sloman v. G. W. Ry. Co., 67 N. Y., 208; Stoneman v. R. R. Co., 52 N. Y., 429; Wood on Railroad Law, vol. 3, p. 1527.
    In these cases there is no claim made of any fraud or concealment as to the character of the goods when the trunks were delivered to the railway company. The evidence, on the contrary, shows that the trunks indicated the character of the goods. The men in charge of them were frequently at that station and were known to be traveling men; the company charged and received extra compensation. 4 Mo. App. Rep., 582 ; Ross et al. Resp. v. Missouri, Kansas & Texas R. R. Company, App. No. 466; John A. Millard, Jr. v. The Missouri, Kansas & Texas R. R. Company, 86 N. Y., 441; The Great Northern Railway Company v. Shepherd, 8 Exchequer, 30.

      Under the 6th section of the 7th and 8th Vict. C., 85, which allows each passenger by a parliamentary train to carry half a hundred weight of luggage, a husband and wife traveling together are entitled to carry one hundred weight.
    The luggage of a passenger by railway, though never delivered to any servant of the company, but kept by the passenger during the journey, is, nevertheless, in point of law, in the custody of the company, so as to render them responsible for its loss. J. H. Oakes v. The N. P. R. R. Co., 20 Oregon, 392; Charles S. Perley v. The New York Central and Hudson River Railroad Company, 65 N. Y., 374; Waldron v. The C. & N. W. R. R. Co.,1 Dakota, 351; Edwin Butler v. The Hudson River R. R. Co., 3 E. D. Smith’s, 571.
    It is claimed that the traveling men in charge of the baggage in controversy in this case were traveling on what were known as thousand mile tickets which limited the liability of the company in the case of loss to $50.
    In answer to this proposition we say that in the case of Daniel S. Ambach & Company, there was' no such defense made in the pleadings.
    In the next place, we claim it is well settled in Ohio that a common carrier cannot limit his liability for negligence. Union Express Company v. A. A. Graham, 26 Ohio St., 595; United States Express Co. v. Backman, 28 Ohio St., 144; Gaines v. Union Transportation and Insurance Co., 28 Ohio St., 418; Davidson v. Graham, 2 Ohio St., 131.
    Brief of Gilbert & Hills, for Bowler & Burdick Co., defendants.
    We claim that the railroad company is liable for the following reasons :

      (1.) It was its established custom to carry such goods as baggage.
    (2.) The baggage agent when receiving and checking the trunks had seen their contents and actually knew it to be a stock of jewelry, and by receiving and cheeking the trunks, under the circumstances the railroad company became bound for their safe carriage and delivery, the same as though they contained baggage.
    (3.) If the baggage agent did not have authority to waive the objection to the contents of the trunks not being baggage and thus bind the railroad company for the safe carriage and delivery of the trunks as baggage, it was at least bound by the knowledge of the contents of the trunks possessed by the baggage agent and having received these trunks it was obliged’ as bailee to bestow upon them such care as an ordinarily prudent man would have bestowed upon like property, and causing the destruction of the goods, under the circumstances, was not the exercise of such care.-
    (4.) If the baggage agent did not in fact, know, or have good reason to believe, that the trunks contained a stock of jewelry, still, by receiving the trunks, the railroad company became bound as ordinary bailee to bestow upon them such care as an ordinarily prudent person would have done upon his own like property, and causing the destruction of this stock of goods by the collision was not such care.
    (5.) Independently of the custody of the trunks, assuming that they were being carried upon the train at the risk of the defendant in error, as to all accidents, still the plaintiff in error having caused the destruction of this property by running another locomotive into the locomotive attached to this train, was guilty of active wrong in not so using its own as not to injure another and is hence liable in tort.
    The railroad company is liable for the loss of the stock of jewelry because it was its established custom to carry such property as baggage. Jacobs v. Tutt et al., 33 Fed. Rep.,-; Humphreys v. Perry, 148 U. S., 647; 10 C. C. R., 272; T. & O. C. Ry. v. Ambach, 10 C. C. R., 490; Penna. Co. v. Miller & Co., 35 Ohio St., 541.
    We also call attention to the definition of gross negligence given by this court in Telegraph Company v. Griswold, 39 Ohio St., 301.
    In case of receivers á different presumption as to negligence would arise from the fact of such accident as in the above case,, where the train was derailed 'by the turning of a rail, for the receiver since coming into control of the road, might not have had an opportunity to learn of the defects and put the road, in repair.
    In further support of the general proposition, see also the following authorities: 41 Mo., 504; 29 Minn., 160; 38 Ill., 219.
    Independently of the custody of the trunks, assuming that they were being carried on the train, at the risk of defendant in error as to all accidents, still the plaintiff in error having caused the destruction of this property by running another locomotive into the locomotive attached .to this train was guilty of active wrong in not so using its own as not to injure another and is hence liable in tort. Kerwhacker v. Cleveland, Columbus & Cincinnati R. R. Co., 3 Ohio St., 171
   Shauck, J.

Much of the doctrine .maintained by counsel for the carrier is established law. The obligation of the carrier to carry the baggage of a passenger is limited to those articles which are for his personal comfort and convenience. Nor is the carrier bound to inspect a trunk presented by a passenger as baggage to see whether it contains articles of merchandise. In the absence of knowledge to the contrary, it may rely upon the passenger’s implied representation that its liability will be limited to baggage. ■ Since it does not owe the duty of inquiring as to the contents of such trunks as are so presented, it cannot be charged with the knowledge which inquiry mig’ht have elicited. Nor can the liability of the carrier be extended by the fraud and deceit of the passenger. A claim founded on his own fraud and deception would be as bad in law as it is in morals.

But it does not appear from these records that any of these views were denied by the common pleas court of Franklin county, or by either of the circuit courts. It cannot be said that one is deceived or defrauded with respect to facts which are made known to him in anyway. In two of these cases the jury were instructed, that to charge the carrier with liability for the merchandise as baggage, it was necessary to show that its agents knew the character of the contents of the trunks when .they received and checked them. In the other 'case, the evidence tended to show that the agent had such knowledge.

The instruction given placed upon the plaintiff the burden of proving such knowledge. The instruction was not that the carrier would be liable if its agents might have known that the trunks contained merchandise, or if they had reason to know'; for that would have defined a rule too uncertain of application. The charge required that the evidence, circumstantial and. direct, must affirmatively show that the carrier’s-agents knew that merchandise was received to be carried as baggage.

That such knowledge fixes upon the carrier the same liability for merchandise accepted to be carried as baggage as though it were baggage, is generally, though not universally, held. The general rule upon the subject of waiver as affecting the liability of the carriers, was stated by Mr. Justice Field in Railroad v. Swift, 12 Wall., 262, as follows: “If at any time reasonable ground existed for refusing to receive and carry passengers for transportation, and their baggage and other property, the company was bound to insist upon such ground if desirous of avoiding responsibility. If not thus insisting, it received the passengers and their .baggage and other property, its liability was the same as though no ground for refusal had ever existed.”

In Wood on Railroads, vol. 3, p. 1806, it is said:

“While a carrier is not obliged to accept anything but ordinary baggage as baggage, yet, if without extra compensation, and knowing that it is not personal baggage, he permits it to be treated and carried as such, he is liable for its loss.” The same doctrine was declared and applied in Jacobs v. Tutt et al., 33 Fed. Rep., 412, and in numerous cases cited in the briefs. Nothing opposed to this view is held in Humphrey's v. Perry, 148 U. S., 627, relied on by counsel for the company; for not only does the court by distinguishing Jacobs v. Tutt et al., recognize that case as correctly decided, but in the opinion it is stated as a reason for the conclusion, that the carrier was not liable for the value of merchandise received to be carried as baggage that the witness “testified to no fact from which the inference could, be drawn that the agent had actual knowledge that the trunk contained a stock of jewelry.”

Nor is the view stated in conflict with the cases in which it is held that the carrier does not become liable for merchandise received as baggage merely oecause it had frequently so received it, nor merely because of the peculiar appearance of the trunks or cases in which it was contained; for fraud cannot be practiced upon a carrier so fre.quently as to create a cause of action against it, nor is proof of a circumstance which tends toshow knowledge, or which might excite a suspicion, necessarily equivalent to proof of actual knowledge. Concerning the effect of such circumstances it was said by this .court in Johnson v. Way, 27 Ohio St., 374, as a reason for rejecting the ancient rule that there could be no recovery upon a negotiable instrument, void between the original parties if the holder had acquired it under circumstances calculated to excité suspicion:

“Circumstances which might excite the suspicion of one man might not attract the attention of another. It is a rule which business men cannot act upon in the ordinary affairs of life with any certainty that they are safe.” It was nevertheless held, that good faith required .the holder to act upon his knowledge.

It is true that in cases not distinguishable from those before us, the Supreme Court of Massachusetts has exempted the carrier from liability for the merchandise, holding.that, notwithstanding its knowledge of the character of the articles to be carried, it is liable only according to the terms of its contract, and that the articles of merchandise were carried at the risk of the passenger.

. If we were inclined to adopt this view instead of that which obtains generally, we should find difficulty in distinguishing The Express Co. v. Backman, 28 Ohio St., 144, where a common carrier of freight was charged with the consequences of its knowledge that the value of the freight exceeded that which was stated in the bill of lading. It would not seem 'practicable in this respect, to distinguish between the carriage of freight and the carriage of baggage, nor between knowledge of the-value of the articles carried and knowledge of their character. In one case as clearly as in the other, considerations of public policy justify the conclusion that, if the carrier, for the purpose of obtaining patronag’e, and with actual knowledge of all the material facts, waives its right to refuse merchandise which it is requested to carry as baggage, or to make an additional charge commensurate with the increased risk, it cannot, after a loss has occurred, assert an immunity from liability because of such right. Regarding other points-raised by counsel for the company, it seems sufficient to say that they present no prejudicial error.

Judgment affirmed.


author: Bradbury, J.

text:
    Gates, Admr. v. The Tippecanoe Stone Co. et al.

      Creation of corporation — Partners incorporate — Capitalize partnership property in excess of its value — Corporation insolvent— Rights of corporation creditors — Stock liability original subscribers — Corporation law.

    1. Where, pursuant to an agreement among themselves, partners capitalize the partnership property at a valuation greatly in, excess of its true value ; create a corporation under the laws of this state to continue the former partnership business, fixing its capital stock at a sum equal to the inflated value placed on the partnership property ; elect themselves managing officers of the concern: transfer this property, at such inflated value, to the corporation in exchange for its entire capital stock which they cause to be issued, as fully paid up, •to each partner, or as he directed, in proportion to his interest in the partnership : and the corporation, continuing the business, afterwards becomes insolvent, the transaction will be regarded as a fraud upon the corporate creditors, although none was intended or contemplated by the parties to such transaction.
    2, In such case, each partner will be regarded as an original subscriber for so much of the stock as was thus issued to him, and credited on his subscription for the actual value, only of his interest in the partnership property transferred to the corporation in payment of such subscription. The balance left, after applying this credit, will be deemed a debt due from him to the corporation, and therefore corporate assets. '
    (Decided October 26, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    This action was brought in the court of common pleas of Cuyahoga county to enforce the statutory liability of holders of stock in the Tippecanoe Stone Company, a corporation created under the laws of this state and located in Harrison county.
    The Tippecanoe Stone Company had become insolvent and on August 29, 1889, assigned its property to A. C. Dustin for the benefit of its ereditors. On September 17, 1889, the creditors of the insolvent concern, in due form of law, elected Thomas A. Latto trustee thereof, who thereupon qualified and thereby superceding the assignee, Dustin, entered upon the administration of the corporate property.
    This trustee, Thomas A. Latto, upon his own motion was made a defendant in the action, and filed a cross-petition, setting forth that the capital stock of the insolvent corporation — the Tippecanoe Stone Co. — had not been fully paid up, giving the names of the subscribers thereto, who he claimed were in default, and praying, among other things, that a master commission might be appointed in the action to ascertain the subscribers, who were, in fact, in default, and the amount each owed upon his original subscription.
    Judge Pennewell, of the Cleveland bar, was appointed referee to hear and determine the issues joined between the parties. This he did and reported his findings of fact and conclusions of law separately.
    The finding of facts made by the referee shows, that the corporation was organized under the laws of this state in March, 1887, with a capital of $75,-000.00 divided into shares of $100 each, its principal office being located at Tippecanoe, Harrison county, Ohio, and its business was quarrying and dealing in stone, etc. McLain subscribed for and there was issued to him 275 shares of its stock, aggregating $27,500.
    That prior to the organization of the corporation the quarry, with the stone saw mills, machinery, etc., was owned and operated by a partnership, known as the “John Paul & Co.,” said McLain being one-half owner thereof, William Thornburg one-fourth and Oscar Townsend one-fourth. The business was then prosperous, and the owners resolved to form a corporation arid turn the property and business over to it, at a valuation of $75,000, each partner to receive corporate stock in the same proportion that he was interested in the partnership : McLain one-half, Thornburg and Townsend each one-fourth. Accordingly articles of incorporation signed by McLain, Thornburg, Elbert B. Cornell, James Peacok and N. G. Dielheim were sent to the secretary of state in March, 1887. On the return to the incorporators by the secretary of state of a certified copy of these articles of incorporation, the concern was organized by McLain and Thornburg-, two of the partners, acting’ in person, Townsend, the other partner, acting through William B. Hanlon, E. B. Cornell, to whom McLain had just previously sold an interest in the partnership property equal at its estimated value to $10,-000 of the capital stock of the corporation, and William M. Thornburg, son of William Thornburgbefore named, to whom one share was allotted, evidently to fill up the directory. These five persons at once subscribed for the entire capital stock of the concern, proceeding to elect themselves its directors, and immediately thereafter elected'McLain, president, and William Thornburg, secretary, of the new concern.
    On the same day, pursuant to the prior agreement .of the partners, the partnership property was conveyed to the corporation,, and certificates of stock in the concern issued to the several partners, or as they directed according- to their interest in the partnership to the full amount of its capital, as fully paid up stock as follows :

      James H. McLain .................................................-275 shares.
    Elbert B. Cornell................................................ 100 “
    William Thornburg................................................ 187 “
    William B. Hanlon.................................................. 187 “
    William M. -Thornburg..................................... 1 share.
    Total....................................................................... 750 shares.
    This entire transaction, the referee found was conducted in good faith, and without an intent to defraud the creditors of the concern or any one else, but that the value of the property conveyed to the corporation was only one-half that placed upon it by its owners. No call was ever made by the directors for payment upon stock, nor was there any money paid thereon. The business was conducted by the corporation for about two and a half years, when it became insolvent and assigned its property for the benefit of its creditors under the insolvent laws of this state.

      Day, Lynch & Day and R. A. Harrison, for plaintiff in error.

      First — Recovery can be had only on- ground of fraud and that is not found to exist. The transaction must stand until impeached for fraud by some direct proceeding brought for the purpose.
    The contract of these parties was to convey their mining property for stock. That contract was good unless fraud existed, and it should be attacked and set aside on that ground. Instead, however, the trustee elects to credit the subscribers for the actual cash value of the property turned over, and hold them liable for the balance. This is simply making a new contract for the subscribers. Cook on Stock and Stockholders (3 Ed.) section 45; Anderson Case, L. R., 7 Ch. E.,75; 3 D. G. J. & S., 367; Coffin v. Ransdell, 110 Ind., 417; Phelan v. Hazard, 5 Dillon (U. S.), 45; Brant v. Ehlen, 59 Md., 1.

      Second — The next point we urge is that it is lawful to pay a stock subscription in property suitable to the company’s uses and at a price satisfactory to the company.

      Prima facie a stock subscription is payable in money. Let us suppose it to be so paid. Thereupon the corporation uses that money to buy from the subscribers or some one else, certain property needed to effect the object of its creation — -to carry on its business. What possible illegality is therp in shortening the transaction-and issuingthe stock directly in return for property conveyed. Foreman v. Bigelow, 4 Cliff. (U. S.), 508; Phelan v. Hazard, 5 Dill. (U. S.), 45; Steacy v. R. R. Co., 5 Dill. (U. S.), 348; Skinner v. Loan Co., 56 Hun. (N. Y.), 437. The English cases also uniformly lay down this rule.
    The most important question grows out of the referees finding that because the property conveyed equaled only one-half the par value of the stock, the subscribers must now pay in the remaining half. In other .words, that property cannot be applied on stock subscriptions in excess of-its actual cash value, although all interested parties participated; no creditor then existed, the transaction was fair and open; no fraud intended; no one deceived; and no false claim made thereafter that more capital existed than did really exist.
    We contend the referee’s conclusion of law and the judgment thereon, are unwarranted. Cook on Stock and Stockholders, 3 Ed., section 35; Coit v. Gold, etc., .Co., 119 U. S., 343; Young v. Erie Iron Co., 65 Mich., 111; Whitehill v. Jacobs, 75 Wis., 474; Hospes v. The N. W. Mfg. & Car Co., 48 Minn., 175.
    The fraud in such cases consists in the misrepresentation as to the actual amount of capital upon the faith of which persons have dealt with the corporation and give it credit. 1 Cook on Stock and Stockholders, sections 28 to 48; Subject ‘ ‘Watered’ ’ Stock and the numerous authorities therein cited, Van Cott v. Brunt, 82 N. Y., 535; Barra v. N. Y., L. E. & W. R. R. Co., 125 N. Y., 263, 273; Christianson v. Eno, 406 N. Y., 97; Commonwealth v. Railway Co., 52 Pa. St., 506, 515; Stoddard v. Foundry Co., 34 Conn., 542; Stewart v. Railway Co., 41 Fed. Rep., 736; Du Pont v. Tilden, 42 Fed. Rep., 87; 37 Kansas, 606-653; 2 Morawetz on Corporations section 830.
    There is another line of eases which treat the question somewhat differently, but reach the same result and refuse to hold subscribers and stockholders from whom the corporation has received the fair market value for shares taken by them. Clark v. Bever, 139 U. S., 97; Fogg v. Blair, 139 U. S., 118.
    It seems to us that the only reason or theory upon which future creditors would have a right to attack a transaction of this character would be because the apparent or nominal value of the capital stock is not represented by money or property of an equal amount, and that, in a certain sense, they have been misled into extending* faith and credit to the corporation.
    We call attention right here that no creditors in this action nor the representative of the creditors (Latto, Trustee, etc.) assert that credit was extended to this corporation on the supposition that it had $75,000, of property as the proceeds of the sale of its capital stock.
    We think it can safely be asserted that in not one case in a hundred, occurring in commercial transactions, is any reliance placed upon the amount of the capital stock, and, it is equally rare to find that the capital stock truly represents the company’s property which the creditors can subject to payment of their claims. Cook on Stock and Stockholders, section 16.
    From the authorities we deduce this rule that the corporation may take in payment of stock whatever is suitable for its uses, and if it takes it at a valuation that is satisfactory to it, and if the transaction is free from fraud, the stock so issued is always to be regarded as fully paid. And this is especially true of mine and quarry property (being of exceedingly fluctuating value). But, if the value of the property is merely nominal, or almost entirely fictitious, the transaction may be impeached.

      Thifrcl — -We contend, next, that McLain parted with his stock early in 1888; it was transferred on the books to E. B. Cornell and he was accepted by the corporation instead of McLain.
    Let us assume that McLain paid but 50 per cent, on his subscription; when his stock was'transf erred of record and his transferee was accepted by the company, the latter assumed all liability for the balance due.
    There is no privity of contract between stock subscribers and creditors; the latter must work out their rights through the corporation. If it decides to accept a transferee and release the first subscriber, the bargain is binding on all. Cook on Stock and Stockholders, section 254-5, and numerous cases there cited; Pullman v. Upton, 96 U. S., 328; Tucker v. Gillman, 121 N. Y., 189; Gilmore v. Bank, 8 Ohio, 62.

      Fourth — The referee having determined that McLain and Cornell were both liable in respect to the stock which McLain had transferred to Cornell, because the subscription therefor, was only half paid, further held as between them that McLain’s liability was primary and Cornell’s secondary. This finding we presume to be based on the other finding that McLain transferred the stock to Cornell “as full paid stock.” But let us interpret that finding in connection with others. “The sale of this stock by McLain to Cornell, was made for value and in good faith, and was sold by McLain and purchased by Cornell as full paid stock, paid for in the manner already stated. ’ ’
    E. B. Cornell was an original subscriber so Cornell knew how and to what extent the stock was paid for. He did not pay McLain full value, but paid value for the stock. Is it to be presumed he paid McLain on any other basis than the actual assets of the company, to-wit: the quarry property transferred to it, subject to the increase or decrease of property as a result of the first year’s business ? Not very likely.
    Were he a stranger relying,on McLain’s statement that the stock was fully paid, then his transferror should protect him.
    To say it was sold as “fully paid stock” is a mere play upon words ; Cornell knew it was paid in property and knew the value thereof.
    Let us suppose the corporation sued its stockholders for the remainder due and the court declared that in fact only 50 per cent, had been paid, and rendered judgment against both McLain and Cornell; who should pay it; McLain or Cornell?
    McLain is out and the benefit of further payment could not enure to him ; Cornell is in — is a stockholder and will have his proportionate benefit of the funds realized by the company; plainly he should pay the balance due and not his transferror.

      Fifth — There remains another part of the report and judgment below, equally prejudicial to plaintiff; especially so, if the judgment on stock subscription is reversed.
    It must be remembered that McLain ceased to be a stockholder of record, February 21, 1888. Many creditors plead their claims by petition and answers, others are represented in the answer of Latto, Trustee. It will be found on examination of the pleading (and the list of claims attached thereto and also several pleadings attached to the original petition in error, but not in the printed record) that these debts originated in 1889.

      D. A. Hollingsworth and Warner M. Bateman, for defendants in error.
    In Ohio the liability of a stockholder is regulated by section 3, article 13, of the state Constitution, and by section 3258 of the Revised Statutes.
    They provide that “each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock. ’ ’
    This provision is intended for the protection of creditors and is not a mere regulation to be observed by stockholders among themselves. It is the guaranty which the law holds out to all persons who deal with a corporation. Brown v. Hitchcock, 36 Ohio St., 667.

      Ohio courts have uniformly upheld these safeguards. Henry et al. v. Vermillion and Ashland R. R. Co. et al., 17 Ohio, 187.
    This latter case has been the keystone of Ohio decisions ever since. In Noble, Admr. v. Callendar et al., 20 Ohio St., 199, almost the identical question now raised was settled adversely to the position of counsel.
    The only express agreement shown as to value is that made among the owners of the property before the corporation was in being as to what they would allow themselves, as its managers, after it was formed.
    It is true that a corporation may bind itself in a proper case, without formal entry or order of its stockholders or directors, by the parol act or agreement of its officers.
    But in this case, that would not be binding on the corporation, for the reason that the owners of the property were its officers and could not represent the corporation, as trustees or agents, in negotiating an agreement with themselves. They cannot be on both sides of the contract.
    1. The directors of a corporation are its agents in the conduct of its business, and are trustees for the corporation, its stockholder and creditors. They are agents of the corporation in the management of its business ; and, as such, must exercise all their power for its benefit and its creditors and stockholders as cestui que trust. 3 Thompson on Corporations, section 3967.
    They occupy a fiduciary relation as trustees towards the stockholders. 3 Thompson on Corporations, 4009, 4010; 3 Thompson on Corporations, 4017; Wardell v. Railroad Co., 130 U. S., 651; Cook v. Sherman, 20 Fed. Rep., 167; Thomas v.
      Brownsville, etc., Co., 109 U. S., 522; Aberdeen Ry. Co. v. Blackie, 1 McQueen, 461; Hoffman Steam Coal Co. v. Cumberland Coal & Iron Co., 16 Md., 450; 30 Barbour, 553; Cov. & Lex. Ry. Co. v. Bowler et al., 9 Bush., 468; Meeker v. Winthrop Iron Co., 17 Fed. Rep., 48; Bissitt v. Kentucky Riv. Nav. Co., 15 Fed. Rep., 353; Bolton Carbon Co. v. Mills, 78 Iowa, 460; Osgood v. King, 42 Iowa, 478; Rolling Stock Co. v. Railroad Co., 34 Ohio St., 460; Goodin v. White Water Canal Co., 18 Ohio St., 169.
    This rule is an assertion of a fundamental principle of honesty and good faith in the performance of trusts that has been enforced by the courts of all civilized countries, and especially by the courts of England and the United States. In every form in which a trustee or agent has sought to benefit himself by the use of his trust or his agency, the rule has been strictly applied. Dimes v. Proprietors of the Grand Junction Canal, 3 House of Lords Cases, 759; State v. Standard Oil Co., 49 Ohio St., 137; Osgood v. King, 42 Iowa, 478; Hoffman Steam Coal Co. v. Cumberland Coal & Iron Co., 16 Md., 450; Gardner v. Butler, 30 N. J. Eq., 702; Flanagan v. Great Western Ry. Co., L. R. 7 Eq., 116; Butts v. Woods, 37 N. Y., 317; Coleman v. Second Ave. Ry. Co., 38 N. Y., 201; Great Luxembourg Ry. Co. v. Magnay, 25 Beav., 586.
    The plaintiff and his associates, directors of this company, made a contract of subscription to its stock, which they are bound to pay. The corporation has taken and used théir land, for which they are entitled to recover from it what it is worth, which they must show. When the amount of their claim for the land is ascertained they may have it applied upon their indebtedness upon their stock subscription as a set-off or a payment thereon.
    2. But there is another principle now fully established as the law of this state. It is that the subscription to stock constitutes a trust fund, of which directors of the corporation are trustees for benefit of creditors of the company, that cannot be released, given away or distributed among stockholders to the.prejudice of creditors of the company. This is on the principle that as the corporation is a fiction in fact, but permitted to transact business as a person, in place of direct personal liability for its debts, there shall and must be provided a real capital as a security to those dealing with it. Taylor v. Miami Exporting Co.,5 Ohio, 162; King v. Armstrong, 50 Ohio St., 222; Scoville v. Thayer, 105 U. S., 143; Handley v. Stutz, 139 U. S., 417.
    This trust character of corporation capital and trust relationship of the board of directors to it, has been clearly stated in Rouse v. The Merchants' National Bank, 46 Ohio St., 501, et seq.; Upton v. Tribilcock, 91 U. S., 45.
    The cases are numerous in which, in every form, courts have defeated any attempt to satisfy the subscription of a stockholder for anything less than the full payment of the amount. The authorities are fully collected and discussed by Thompson in 2 Corporations, section 1511, et seq., as to the release of the contract of the subscription ; and section 1562 et seq., as to their payment. Sawyer v. Hoag, 17 Wall; Union Mutual Life Ins. Co. v. Frierstone Mfg. Co., 97 Ill., 537; 2 Morawetz on Corporations, 588, 591, and other authorities.
    '3. The plaintiff, in his brief, contends that a contract for.the.payment of the subscription.in property is a valid one, subject only to be set aside upon grounds of fraud.
    The first clause of this proposition is at variance with the two cases in 17 Ohio and 20 Ohio St., above quoted. But whether such a contract is valid or not is immaterial to this case, and foreign to the real question it presents. The owners of the property conveyed the property to the corporation; as they had the title and power to do. The corporation could receive it as property suitable for jits use. But they have no power, as we have above shown, to contract, in behalf of the corporation, with themselves; or, in other words, to bind the corporation by their own conclusion as to what they should receive for the property, or how that should be paid. They can not make a bargain of it with themselves.
   Bradbury, J.

The only question which this opinion will consider relates to the liability of James H. McLain upon his subscription to the capital stock of the Tippecanoe Stone Co. The court of common ;pleas held him liable and its holding was sustained by the circuit court. This holding rests upon a finding of fact made by a referee to whom the cause was, by order of the court of common pleas referred, with directions to hear the evidence and report his findings of fact made thereon, separate from his conclusions of law. A brief reference to so much of this finding as relates to the question now under consideration will be made.

McLain, William Thornburg and Oscar Townsend, in the year 1887, owned and were operating, as partners, a certain stone quarry, stone saw mills, etc., at Tippecanoe, Harrison county, in this state; McLain owning one-half, the two other partners each one-fourth. The fair value of partnership property was $37,500. The partners entered into an agreement among themselves to capitalize this property at an estimated value of $75,000, organizea corporation with a capital stock of $75,000, transfer the property to it at this estimated value, and in payment of the. property issue to themselves paid up corporate stock to an amount equal to this estimated value. Accordingly steps were taken to accomplish this end, which resulted in the incorporation of the Tippecanoe Stone Company, under the laws of this state with a capital of $75,000. At once, upon the completion of its organization, the partnership property was transferred to the corporation at the price previously fixed, and in exchange therefor, the entire stock of the corporation was issued to the partners,.or their assignees, as fully paid up. The business was conducted by the corporation for about two and one-half years, when it became insolvent and by force of an assignment under the in solvent laws, passed into the hands of Thomas A. Latto as trustee for the benefit of creditors, who now seek to recover of James H. McLain, as unpaid subscription upon the stock issued to the latter, the difference between the par value of that stock, and the value of the property transferred by him for its payment.

The capital stock of the corporation was $75,000, which being divided into shares of $100 each, aggregated seven hundred and fifty shares. McLain, as he owned a moiety of the partnership property, was, under the agreement to capitalize it as before mentioned, entitled to receive one moiety of the corporate stock, or three hundred and seventy-five shares; he, however, assigned the right to receive one hundred of these shares to another, so that in the division of the shares only two hundred and seventy-five of the par value of $27,-500, fell to him. The value of the partnership property being only $37,500, just one-half the sum at which it was capitalized, it follows that McLain, in payment for two hundred and seventy-five shares of stock of the par value of $27,500, transferred to the corporation property having only one-half that value, or of the actual value of $13,750 only. This entire transaction was found to have been conceived and conducted in good faith, that is without any purpose to defraud those who, by dealing with the corporation, might subsequently become its creditors, or any one else.

The Constitution of 1851, and the statutes passed since its adoption, evince great solicitude for corporate creditors. Their security has become, in a certain sense, a part of the public policy of the state. The subject was regarded sufficiently important by the convention that framed our present Constitution to merit special attention; accordingly section 3 of article 13 of that Constitution, provides that “dues from corporations shall be secured by such individual liability of the stockholders, and other means as may be prescribed by law; but in all cases, each stockholder shall be liable, over and above the stock by him or her owned, and any amount unpaid thereon, to a further sum, at least equal in amount to such stock.” Subscriptions to the stock of a corporation are prima facie payable in money. Neither the constitutional provision on the subject of corporate dues, nor the statutes of the state contemplate any other mode for their payment. Notwithstanding all this however, we do not wish to be understood to deny to corporations, created under the laws of this state, the power to exchange their stock for specific property. Many cases may be conceived where such an exchange would be for the benefit of the corporation; or even if not ultimately advantageous to the corporation yet being made between the corporation and one who dealt with it at arms length and in good faith should be deemed binding upon both parties.

The question has received the attention of many able courts, and decisions, respecting the circumstances under which a corporation may receive something else than money in payment of subscriptions to its stock have not been harmonious. In quite an early day this court held that “an agreement attempting to secure any stockholder the privilege of paying up subscriptions in store goods or otherwise, except in money, will be treated as a fraud upon other stockholders,, and payment in money enforced.” Henry et al. v. The V. & A. R. R. Co. et al., 17 Ohio, 187. If such an arrangement is a fraud upon other stockholders, it would seem to be equally so as to corporate creditors. In Noble, Admr., v. Callender et al., 20 Ohio St., 199, it was held: “A subscriber for shares of stock in a railroad company which is.not authorized by the law to receive land in payment for its stock cannot in an action against the stockholders of the company, by its creditors, set up or avail himself of the benefit of a collateral agreement between himself and the company, to the effect that the amount of his subscription was to be paid in land.” * * *

In this case the contract to pay the subscription in land was eon temporaneous with the subscription, and the subscription would not have been made, had it not been payable in this way, and yet it was not allowed to prevail.

The eases under consideration present an aspect much more favorable to creditors than either of the two cases above noticed, possessed. It is only by a fiction of law that it can be claimed that any contract whatever was made between the corporation and McLain respecting this exchange of its stock for his interest in the partnership property. The finding of fact shows that he subscribed for two hundred and seventy-five shares of the capital stock of apar value of $27,500. The obligation imposed upon him by this subscription was to pay for it in money at its par value. ■ There were but five stockholders of which he was one, he must have been a director of the corporation and the finding shows he was at the time its president. On the same day that he made his subscriptions, and it would seem contemporaneously with it, the entire number of shares he had subscribed was issued to him as fully paid up, the sole considera* tion being the transfer to the corporation of the partnership property. No negotiations of any kind appear to have been had between him and the corporation. Whatever contract was made between them resulted not from any negotiations, but from their acts. On the same day, and the inference is, at the same time, he subscribed for the stock, transferred his interest in the partnership property to the corporation, and in exchange therefor received fully paid up shares of stock to the number he had subscribed, the par value of which was just double the property he transferred to it. Doubtless the inference to be drawn from this transaction is that the corporation agreed to accept his interest in the partnership property in full payment of the shares of its stock he had subscribed and it is equally inferable from this transaction that he would not have subscribed for these shares had the subscription not been so payable. However the utmost formality would have added no sanction to such an agreement. The directors might have formally voted to buy this property at the estimated price and to issue paid up shares of its stock in payment, and entered upon their minutes a resolution to that effect. Nevertheless the courts would sweep aside these formal acts and view the transaction as it actually occurred, when it would have appeared that it was the result, not of any actual negotiations between him and representatives of the corporation but of a previous contract made by the three partners among themselves, by which the partnership property was to be estimated at double its actual value, a corporation formed, and this property transferred to it at this inflated value, and fully paid up shares of stock issued to the partners, or as they might direct, in the proportion that they were interested in the partnership property.

Although this may all have been done in the utmost good faith, and without an evil intention towards those who, by subsequently dealing with the corporation, might become corporate creditors, nevertheless the fact remains that these corpora-tors held out to the world that the concern they had created, and represented had a fully paid up capital of $75,000, whereas, in fact, its captial was one-half that sum only. They might have honestly belived that a career of prosperity lay before the enterprise which they had thus launched upon the commercial world; yet they cast upon others a considerable share of the risks that might attend it. Notwithstanding the frequency with which corporations are created with fictitious capital, persons who have occasion to deal with those organized under the laws of this stateand doing business within its borders, are not bound to anticipate this condition of its affairs, but may assume that it is what it purports to be.

This attempt by McLain and his associates to dispose of their property at a fictitious or inflated value, to a corporation of their own creation, — one designed, and brought into existence, chiefly for that purpose — should be regarded as a fraud upon the subsequent creditors of the concern, although no evil intent accompanied the transaction and the difference between the actual and the inflated value of the property so conveyed should be deemed unpaid subscription upon the stock issued in this way, whenever necessary to protect the rights of the corporate creditors. What might be the rights of a creditor who, with full knowledge of the acts of these corporators, and of the inflated value of the property transferred to the corporation, choose to extend credit to the concern we need not inquire, for that question is -not raised in the record.

Judgment affirmed.


author: Burket, C. J.

text:
    Allen v. Lake Shore & Michigan Southern Railway Company.

      Right of sheriff, in discharge of duty, to ride on freight trains — Not regularly scheduled to stop at station— Word “regularly” surplusage — Section SSI5a, Revised Statutes.

    1. To give a sheriff the right to ride on freight trains in the performance of his official duties 11 between stations where such trains stop,” as provided in section 3375a, Revised Statutes, it is not ndcessary that such trains should regularly stop at such station, or be scheduled to stop there; it is sufficient if they are in fact stopping there at the time the sheriff gets aboard.
    2. The right of a sheriff to ride upon a freight train, is not confined to cases in which a prisoner is taken upon such train; but the right exists whenever the sheriff is in the performance of any official duty, and complies in other respects with the statute.
    3. A sheriff having the right under the statute to ride upon a freight train, was ejected therefrom at Jefferson, and brought an action thereafter against the railway company for damages, and in his petition averred that the 1 ‘train stopped regularly as well as on the said day, both at Jefferson and Ashtabula :” Held, That the word “regularly” as applied to Jefferson, was surplusage, and that it was sufficient to prove that the train had in fact stopped at Jefferson when the sheriff got aboard, and that it stopped regularly at Ashtabula.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Ashtabula county.
    James E. Allen, plaintiff in error, was, on the 14th day of January, 1893, sheriff of Ashtabula county, and had two writs to serve on parties at Conneaut in said county, and the most direct and convenient way to reach his destination was to go from Jefferson, the county seat, to Ashtabula, and thence to Conneaut on the L. S. & M. S. Railway. He went to the station at Jefferson, and there found a through freight train which had stopped at the station, and remained there about thirty minutes, when it started up and ran to Ashtabula, which was its next regular stopping place. This through freight was not scheduled to stop at Jefferson, but did in fact stop there that day for about half an hour.
    While this through freight train was so stopping on that day at the station at Jefferson, Mr. Allen, the sheriff, with his two writs for service, got on the caboose of the train, and informed the conductor, that he was the sheriff of the county, and had the two writs in his possession for service, and that he desired to ride on the train in the caboose from Jefferson to Ashtabula, and in payment of his fare, offered to the conductor a first-class ticket which he had in his possession, and also offered to pay his fare in money; but the conductor refused both, and refused to allow the sheriff to ride on that train, and put him off, and the sheriff was compelled to reach Conneaut by means of a different conveyance. The conductor was informed and knew that Mr. Allen was the sheriff of the county, and had the two writs for service, and he refused to allow the sheriff to ride on the through freight for the reason that it was not scheduled to stop at Jefferson, and Jefferson was not a regular stopping place for that train.
    Mr. Allen thereupon brought his action against the railway company for damages, and alleged in his petition that “said train stopped regularly, as well as on said day, both at Jefferson and Ashtabula.”
    The allegation of the petition as to stopping regularly at Jefferson was denied, and upon the trial it fully appeared that the train was a through freight, which did not regularly stop at Jefferson, but did in fact on that day stop there for fully half an hour, and was so stopping when the sheriff got into the caboose.
    Upon trial in the court of common pleas, Mr. Allen recovered a judgment, against the railway company for the sum of five hundred dollars.
    A motion was made for a new trial, which was overruled. Upon petition in error the circuit court reversed the judgment, on the ground that the court of common pleas had erred in its construction of the statute, and in its charge to the jury on that subject. Thereupon Mr. Allen filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and praying for affirmance of the judgment of the court of common pleas.

      Charles Lawyer, Jr., and Hoyt & Munsell, for plaintiff in error.

      Theodore Hall, for defendant in error.
   Burket, C. J.

The journal entry of the circuit court shows that the court found error in the record, to the prejudice of the plaintiff in error (the railway company), in this to-wit: “The court

erred in its charg’e to the jury; the court erred in its construction of the statute under consideration. ”

The statute in question is as follows:

“Section 3375a. Physicians in the discharge of their duty; and sheriffs and deputy sheriffs, in the performance of their official duties, shall be permitted to ride, at their own risk, and take a prisoner or prisoners, upon freight trains, between stations where such trains stop, paying therefor a regular passenger fare.”

The charge of the court as to the construction of the statute held to be erroneous by the circuit court, is as follows:

“The act of the legislature, which we have copied into these instructions, permits a sheriff, while engaged in the discharge of his official duties,- to ride upon freight trains between stations where such freight trains stop. We hold and instruct you, that if said freight train had stopped at Jefferson, and was standing- upon the track, before the plaintiff entered the caboose, that in that event, while the plaintiff’s claim, in this case, may not fall within the exact letter of the statute, yet we hold that it comes within the spirit of the statute; although you should find that Jefferson was not a regular stopping place for that train.

“On the other hand, in this case, we instruct you, that if you find that it has been proven, that said freight train had stopped at Jefferson station, and was then standing there upon the track, and you find that it has been proven, that the plaintiff entered said caboose car, while it was so standing upon said track, and that he was then engaged in the performance of his official duties, which required him. to pass over the defendant’s line of road, from Jefferson to Ashtabula, on his way to Conneaut, in said county, to make service upon parties at Conneaut, of a summons, or other papers, which he then had with him for that purpose; that he then made known to the conductor, that he was such sheriff, and was then engaged in the discharge of his official duties, which required him to pass over said road, from Jefferson to Ashtabula; then we say to you that he had the right, as such sheriff, in the discharge of the duties of his office, to enter said car, upon the payment of the regular fare from Jefferson to Ashtabula, and to require the defendant to carry him, from Jefferson to Ashtabula, upon said train, and if you find that it has been so proven, that he thus informed the conductor, and the conductor, after he had been so informed by the plaintiff, refused to carry him to Ashtabula, and allow him to ride upon said train, but then and there ordered the plaintiff to leave said car, and the plaintiff in pursuance of said order of the conductor, did leave said car, to avoid being forcibly expelled therefrom, then we say to you, you would be authorized to return a verdict in favor of the plaintiff.”

The common pleas also charged the jury, over the objection of the railway company, that sheriffs and their deputies, while in the performance of their official duties, have a right to ride upon freight, trains, at their own risk, whether they have a prisoner with them or not. The circuit court held this part of the charge to be correct, and this court concurs in that holding.". The right to ride upon such trains is given to sheriffs and their deputies, while in the performance of their official duties,, whether accompanied by a prisoner or not.

The charge of the common pleas, and the reversal by the circuit court, raises, the question, whether the right of sheriffs and their deputies to ride on freight trains under the statute, extends only to riding on such trains between stations at which the trains regularly stop, as held by the circuit court, or whether the right extends to trains which have in fact stopped at the station and are standing there when the sheriff or his deputies get aboard, even though such trains do not regularly stop at such station, as charged by the common pleas.

We think the common pleas was right, and the circuit court wrong, in the construction of the statute upon this question.

The words of the statute are, “between stations where such trains stop. ” This does not say, and does not mean, “between stations where such trains regularly stop, or are scheduled to stop,” as claimed by the railway company, and held by the circuit court. To so construe the statute would be to add additional words, and an additional meaning to the statute by construction.

This can not be done. The words, 4 ‘where such trains stop,” mean where they in fact stop; at least such is the meaning when applied to the stop of the train at the station where a sheriff or his deputies get aboard. When the sheriff got to the station he found a freight train there, and found that it had stopped, and that it would stop at Ashtabula where he desired to go. With this information’, being in the performance of his official duties, he had the statutory right to go upon the train, and it was the duty of the railway company to carry him upon such train at his own risk, by his paying the usual fare, either in money or by proper ticket. The fact that the freight train had on that day stopped, and was then standing at the station, was sufficient to authorize the sheriff, in the performance of his official duties, to go aboard the train, and he need not inquire or concern himself as to whether said train regularly stopped at that station, or was scheduled to stop there.

True, the sheriff in his petition avers that “said train stopped regularly, as well as on said day, "both at Jefferson and Ashtabula;” but this averment could not broaden or change the provisions of the statute. The construction of a statute can not be changed or affected by an averment in a pleading. State ex rel v. Archibald, 52 Ohio St., 1.

The averment in the petition, to the effect that the train regidarh/ stopped at the station, was surplusage, because it was sufficient to aver and prove that it stopped there on the day in question.

A petition which contains all the facts necessary to bring the plaintiff within the rights granted by statute, is good, even though it avers other, but not contradictory, facts, not necessary to the right of recovery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.

It follows that the judgment of the circuit court should be reversed, and that of the common pleas affirmed.

Judgment accordingly.