author: McIlvaine, J.

text:
    Pelton v. Transportation Company.

      1. A certificate of incorporation which, under the statute, specifies the place' where the principal office of the company is to be located, is conclusive as to the location of such office.
    2. Such office is to be regarded as the residence of the corporation within the meaning of section 4 of the tax law of April 5, 1S59, as amended April 8, 1865 (S. & S. 756), which provides that certain personal property “shall be entered for taxation in the township or town in which the person to be charged with taxes thereon resides at the time- of listing the same by the assessor.”
    3. A corporation whose principal office is located in a specified township and without the limits of a city, may, if the city limits be so extended as to include the site of the office, remove ihe same to some other part of the township and thus avoid municipal taxation.
    4. .Steamboats and articles of furniture are not enumerated in the seventh section of the -tax law of April 5, 1859 (S. & 0. 1442), within the meaning of section 4 of said act, as amended April 8, 1865.
    5. Personal property other than merchants’ and manufacturers’ stock, or articles enumerated in the seventh section of said act of April 5, 1859, or personal property upon farms and real property not in towns, subject to taxation in the county where the owner or person chargeable with taxes thereon resides, must be returned and taxed in the town or township where the owner resides.
    6. Steamboats, whose home port is in the county where the owner resides, • are subject to taxation in the township where the owner resides, whether such owner be a natural person or a corporation.
    Error to tbe Court of Common Pleas of Cuyaboga County. Reserved in tbe District Court.
    Tbe Northern Transportation Company, a corporation organized under tbe laws of this state, to wit: tbe statute of April 2, 1859, entitled “ An act to authorize associations of persons for carrying freight on any of the navigable waters of tbe state of Ohio, and tbe lakes and rivers bordering thereon,” brought tbe original action against tbe plaintiff in error, Frederick W. Pelton, as treasurer of Cuyaboga county, to restrain tbe collection of certain taxes then upon tbe duplicate in bis bands for collection. Tbe plaintiff, for tbe year 1874, bad listed, in Brooklyn township, Cuyahoga county, its property, consisting of sixteen steamboats employed in navigating in waters between Ogdensburgh, in the state of New York, and Chicago, in the state of Illinois, and certain other personal property situate in the city of Cleveland, in Cuyahoga county, and the same was returned for taxation by the .assessor of said township at the valuation of $310,000. The property so returned was placed by the auditor of the county upon the duplicate, and assessed as property subject to taxation, in the city of Cleveland, a taxing district in said county other than said township oi> Brooklyn. The amount of taxes so assessed upon said property was $8,680; whereas the amount, according to the rate of taxation in Brooklyn township, would have been $3,255. The latter sum was tendered, but the treasurer, refusing to accept the same in full payment of the taxes on said property, and being about to compel the payment of the former sum, the original action was brought to restrain the collection of excess over the sum tendered and admitted to be due.
    In the court of common pleas, the injunction as prayed for was decreed; whereupon, on the overruling of a motion for a new trial, all the evidence was embodied in a bill of exceptions; and on error, the district court reserved the cause for decision in this court. A further statement of the case will be found in the opinion.

      Heisley, Weh & Wallace, for plaintiff in error:
    I. By statute (S. & S. 756) all articles enumerated in section 7 (S. & C. 1442) are to be listed and taxed in the township and town where they are situated. All of the personal property of the defendant taxed in this case was situated in Cleveland city and township. Yessels have their situs where enrolled or at their home port. All of the vessels assessed and taxed in this case were enrolled, and had their home port at Cleveland. Brooklyn township could not be reached by vessels.
    A vessel property should be listed and taxed where it has its situs. Act of April 8, 1865, § 4 (S. & S. 756); Act of April 5, 1859, § 7 (S. & C. 1442); Rev. Stats. U. S. §§ 4141, 4178, 4312, 4311, 4318, 4334.
    Yessels have their situs for the purposes of taxation at the port where enrolled or registered, or at their home port, (a) Where enrolled or registered. St. Louis v. Wiggins Ferry Co., 40 Mo. 580; Wilkley v. Pekin, 19 Ill. 160; New Albany v. Meekin, 3 Ind. 481; Hoyt v. Comm'rs, 23 N. Y. 224; State v. Haight, 3 N. J. L. 428; Steamship Co. v. Comm'rs, 58 N. Y. 242; Irvin v. New Orleans, 10 Central Law Jour. 376; Stewart v. Mobile, 9 Ala. 234. (b) At their home ports. Hays v. Steamship Co., 17 How. 596 ; St. Louis v. Ferry Co., 11 Wall. 423 ; Morgan v. Parham, 16 Wall. 471; Western Tr. Co. v. Scheu, 19 N. Y. 408; St. Joseph v. Saville, 39 Mo. 460.
    It is now generally, if not universally, held that all tangible personal property should be taxed where it has its situs, irrespective of the domicil of its owner. Dunleith v. Reynolds, 53 Ill. 45; Rieman v. Shepard, 27 Ind. 288 ; Finley v. Philadelphia, 32 Pa. St. 381; Miner v. Fredonia, 27 N. Y. 155; Jackson v. State, 15 Ohio, 652; Carrier v. Cordon, 21 Ohio St. 605.
    It is even held in some states that moneys, notes, bonds, &c., may be taxed where they are situated, without reference to the domicil of their owner. People v. Ogdensburgh, 48 N. Y. 390; Catlin v. Hull, 21 Vt. 152; State v. Howard Co., 9 Central Law J. 25.
    In this state, however, it has been held, and the statute so provides, that intangible property, such as credits, bonds, stocks, &c., should be taxed at the place of the domicil of its owner, and tangible property at the place of its situs. Worthington v. Sebastian, 25 Ohio St. 1. The fact that the entire business of these vessels is not done within the limits of the city of Cleveland, is of no consequence. Sacramento v. Stage Co., 12 Cal. 134; O. & A. R. R. Co. v. Alexandria, 17 Gratt. (Va.) 186.
    II. If, however, it be held that vessel property does not come within the enumeration of section 7, then the personal property of this company, by statute (S. & S. 756), must be listed by its principal officer, in the township where he resides and lists bis separate property. In tliis case, wo contend, the principal officer of the company resided in Cleveland. French, who resided in Cleveland, was secretary of the company. Hoyt, who resided in- Brooklyn township, was only authorized to list the property of the company for taxation. French appointed Hoyt and gave him his instructions. French had $3,000 salary; Hoyt $200 or $300.
    III. If, on the contrary, it be held that the personal property of the defendant should be listed and taxed where its principal office is, then, we claim, it should have been listed and taxed in the city of Cleveland, where the real office, business and property of the company are situated.
    IY. It is simply an evasion of the tax law to have an ostensible office in the country, at a farm-house, while the real office and business, and all the property of. the company, are situated in the city of Cleveland. The law ought not wink at Buck deception.

      F. J. Dickman, for defendant in error:
    The legislative provisions in Ohio, on the subject of taxation, are embraced in S. & C. 1438, 1439, § 1; S. & S. 756, § 4 ; S. & S. 758, § 6; S. & C. 1442, § 7, and the main question to be determined in this case must depend upon the construction given to these sections. The defendant in error submits, 1st. That its said vessel property is not embraced among the “ articles enumerated in said seventh section.” 2d. That if not am?ng the articles so enumerated, said vessel property should have been taxed in the township in which said company resided, to wit, the township of Brooklyn. 3d. That if said vessel property is embraced among the articles so enumerated, and is to be taxed where situated, then, for the purposes of taxation, it was situated, not in the city of -Cleveland, but in the township of Brooklyn, where the principal office of said company was located by its charter. Western Tr. Co. v. Scheu, 19 N. Y. 408; Railroad Co. v. Morgan County, 14 Ill. 165; Angell & Ames on Corp. § 107; Thorn v. Railroad Company, 2 Dutch. (26 N. J.) 121. The plan of enrollment does not fix the port to which a vessel belongs for tlie purpose of taxation or any other purpose. The port to which a vessel belongs depends wholly upon the locality of her owner’s residence. St. Louis v. Ferry Co., 11 Wall. 431; Rev. Stat. U. S. § 4141; Morgan v. Parham, 16 Wall. 471.
   McIlvaine, J.

Was the property of the Northern Transportation Company, which was listed for taxation in the township of Brooklyn, subject to be taxed in the adjoining district of the city of Cleveland, or only in the township of Brooklyn, both taxing districts being in the county of Cuyahoga Í The listed property consisted chiefly of sixteen steamboats owned by the Transportation Company and employed in navigation on waters between Ogdensburg, New York, and Chicago, Illinois, and intermediate ports, including the port of Cleveland, the home port of the vessels, being the one nearest to the residence of the owner, and where the same were enrolled and licensed, in conformity to the laws of Congress in such case made and provided. In addition to the vessel property, there was also included among the listed property, the office furniture and other articles in the office of the company’s agency in the city of Cleveland.

The Transportation Company was duly organized in the year 1860, under the act of April 2d, 1859 (56 Ohio L. 115), which authorized any number of natural persons hot less than five to become a body corporate for the purpose named in the act, hy making and acknowledging a certificate, to be recorded by the secretary of state, specifying, among other things, “ the name of the county or place where the principal office of such company is situate.” In compliance with this requirement, the certificate of incorporation was as follows: That the place where the principal office of said company is situated is Brooklyn, in the county of Cuyahoga, and state of Ohio.” The office so designated was established in said Brooklyn (township) at the residence of one Pelton, where it remained until January, 1874. In the meantime, the limits of the city of Cleveland were so extended as to include the residence of Pelton, whereupon the stockholders of the company, at their annual meeting in January, 1874, ordered that the principal office of the company should be removed to the house of one D. W. Hoyt, situate in said Brooklyn township, but without the limits of the city of Cleveland, which was done accordingly; since which time the annual meetings of the stockholders and the election of officers havé taken place at the residence of said Hoyt, who, at the date of listing the property for taxation, was vice:president of the company, and who, as the specially authorized agent of the company, returned its personal property for taxation to the assessor of said township. Aside from the holding of the annual stockholders’ meetings, the election of officers of the corporation, and the listing of property for taxation from year to year, the-record does not show any other business done at the1 office in Brooklyn. It does appear, however, that the affairs and business of the company are managed chiefly by agents in the cities of Chicago, Ogdensburg, Cleveland, and at other ports where its steamboats are accustomed to enter, and that its principal accounting office is at St. Albans, in the state of Yermont, where the president of the company resides, and the office of its directors is located..

Upon this state of facts, several questions, involved in the determination of the case, arise.

Eor many purposes, a corporation is regarded as having a residence—a certain and fixed domicil. In this state, where corporations are required to designate in their certificates of incorporation the place of the principal office, such office is the domicil or residence of the corporation. The principal office of a corporation, which constitutes its residence or domicil, is not to be determined by the amount of business transacted here or there, but by the place designated in the certificate. True, several offices may be established at the place specified in the certificate, as it is sufficient, under this statute, to specify the county or place.” But where a single office is established in the county, or township, or city, or other place designated, no further inquiry as to the identity of the principal office is admissible. And, as the statute does not require the office building to be specified, it is competent for the corporation to transfer its principal office from one building to another, within the specified county or place, whenever its own convenience or advantage may be subserved. No doubt the exact location of the office should be open and notorious, so that a secret or fraudulent removal would not avail any puipose, yet the particular motive in making the change is not material, as, for instance, whether it was done to avoid taxation. If a natural person may change his residence for such purpose (and of this there can be no doubt), we see no reason why a corporation may not do the same. Such removal is not a fraud against tax laws, unless so declared by express legislation.

In the case of Western Transportation Co. v. Scheu, 19 N. Y. 408, which was similar to the present in many of its facts, it was held that the organic certificate of a corporation, in which it was required to designate the city or town and county in which the principal office for the management of the affairs of the company was to be situated, was conclusive as to the location therein designated as that of the principal office of the company. In that ease, the question arose under a statute which provided that all the jaersonal estate of every incorporated company, liable to taxation on its capital, shall be assessed in the town or ward where the principal office or place for transacting the financial concerns of the company shall be,” and in the opinion, Judge Selden well said, “ It is not important that a corporation should be taxed where it does the greatest amount of its business ; but it is important that the place where it is liable to be taxed should be known.” In that case, Tonawanda,. a small village in the vicinity of the city of Buffalo, was designated as the place of the principal office. The fact was that several places, especially Buffalo, had priority. over Tonawanda as principal localities for the business of the company, and it seems to have been conceded that the office was located at Tonawanda to avoid taxation in Buffalo. In relation to this fact, the court said, But it is no more inequitable or immoral for a corporation to do this, than for an individual to do substantially the same. A person may keep his office in Buffalo and transact business there to an unlimited amount, enjoying all the facilities and advantages which the enterprise and the expenditure of the city have afforded, and yet by residing without the city bounds avoid all municipal taxation. When this shall be practiced, either by individuals or corporations, to an extent which renders it a serious evil, it will be for the legislature to interfere.”

The statutory provisions governing this case are found in section 4 of the act of April 5, 1859, as amended April 8, 1865 (S. & S. 756).

The first part of this section designates the persons who shall list property for taxation ; but as no question is made as to the listing of the property of the Northern Transportation Company, we will quote only the latter part of the section which prescribes the township and town where property shall be entered and taxed.

“ And all real property, and merchants’ and manufacturers’ stock, and all the articles enumerated in the seventh section of this act and all the personal property upon farms and real property not in towns, shall be returned for taxation, and taxed in the township and town in which it is situated; all shares of stock in any national bank located within this state, whether held or owned by residents or non-residents of this state, shall be listed for taxation and taxed in the city, town and township in which the bank is located; and all other personal ■ property, moneys, credits or effects, shall be entered for taxation in the township and town in which the person to be charged with taxes thereon resided at the time of listing the same by the assessor, if such person reside within the county in which such property, moneys or effects were listed, if not, then such property, moneys and effects shall be entered for taxation, and taxed in the town and township where it was situated when listed.”

Section 7, to which reference is here made, is as follows:

“ Section VII. Such statement shall truly and distinctly set forth,
Eirst—the number of horses, and the value thereof;
Second—the number of neat cattle, and the value thereof:
Third—the number of mules and asses, and the value thereof;
Fourth—the number of sheep, and the value thereof;
Fifth—the number of hogs, and the value thereof;
Sixth—every pleasure carriage of whatsoever hind, and the value thereof;
Seventh—the total value of all other articles of personal property which such person is, by this act, required to list; provided, that if such person shall exhibit to the assessor the animals or other articles of personal property above enumerated, the value of such property so exhibited may be omitted in such statement, and the assessor shall, in such cases, determine their value without requiring the oath of the person mating such statement as to the value thereof, and such person shall in that case be required only to make oath or affirmation to the value of the remainder of the personal property which he is required to list;
Eighth—every gold and silver watch, and the value'thereof;
Ninth—every pianoforte, and the value thereof ;
Tenth—the value of the goods and merchandise which such person is required to list as a merchant;
Eleventh—the value of the property which such person is required to list as a banker, broker, or stock jobber ;
Twelfth—the value of the materials and manufactured articles which such person is required to list asa manufacturer;
Thirteenth—the value of moneys and credits required to be listed, including all balances of book accounts ;
Fourteenth—the value of the moneys invested - in bonds,stocks, joint-stock companies, or otherwise, which such person is by this act required to list.”
S. & C. 1442.

The property of the Transportation Company was. properly listed and included in the statement under the 7th clause or subdivision of section 7. It is very clear, however, that steamboats and office furniture are articles not enumerated in the 7th section, although embraced within the general description of property contained in the 7th clause.

It therefore follows, that inasmuch as this property was not merchants’ or manufacturers’ stock,” or “ personal property on farms and real property not in towns,” it was not required to be returned or taxed in the township or town in which it was situated, as provided in the first part of 4th section above quoted. On the other hand, if it be conceded, as is claimed by plaintiff in error, that the situs of this property was in the city of Cleveland, still, being other personal property than merchants’ and manufacturers’ stock, or articles enumerated in the 7th section of said act, or personal property on farms or real property not in towns, it is clear, under the last clause of said section 4, that it was properly returned by the assessor and should have been taxed in the township in which the person to be charged with taxes thereon, resided,” namely, in the township of Brooklyn—it being uncontroverted, that the Transportation Company was the person to be charged with taxes thereon, and as was above shown, the residence of the company was in the same county where the property was listed for taxation.

In thus deciding this case, we have been guided solely by the statute, without calling to aid the familiar doctrine of the common law, that the situs of personal property follows the domicil of the owner; for we admit, that if the owner had not resided in Cuyahoga county, the result would have been different. And on the other hand, if the situs of the property had been in another county, subject to be listed and taxed there under the statute, the residence of the owner in Cuyahoga county would not have given the latter county any right whatever to tax it. The residence of the owner in a particular taxing district fixes the place where his personal property is subject to taxation, only in case the property is required to be listed in the same county; in which case, if the property be other than merchants’ or manufacturers’ stock, articles enumerated in said 7th section, or personal property on farms or on real property not in towns, it must be taxed in the district of the owner’s residence, otherwise, it must be taxed where it is situated.

We fully agree with counsel for plaintiff in error, and the authorities cited by them, that the sitios of personal property, for the purposes of taxation, does not follow the domicil of the owner,unless so provided by local law. And we further agree with them, that the situs of steamboats, navigating waters within and bordering upon different states, is that of the home port, which is ascertained by the residence of the owners, and is the port of enrollment and registration. And, of course, if personal property, by local laws, be made subject to taxation in the district of its situs, steamboats would be taxed in the district of the home port. But, by our statute, if the home port be in the same county where the owner resides, then they are subject to taxation in the township or town of the owner’s domicil.

Judgment affirmed.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Millikin v. Welliver. Crecraft v. Smith.
    A testator, after directing that liis debts and funeral expenses be paid, gave all the residue of his estate, both real and personal, to his wife during her life, she to have full possession, management and control of the same, with the privilege of disposing of all or any of the personal property for her use, together with the proceeds of the real estate.
    The estate consisted of lands, fanning utensils, household goods, live stock and money. The residuary clause is as follows: “The residue of my estate is to be distributed to the heirs on my side of the house in such proportions as she may direct by will or otherwise.”
    No personal representative was appointed until after the death of the widow. She took possession of the personal property, paid the debts and funeral expenses, and deposited the balance of the money in bank in her own name, and died within five months after her husband’s death, without making her election as required by statute to take under the will, and without having disposed of any of the personal property or money, and without distributing any of said estate by will or otherwise.
    Neither the testator nor his wife left any children or their legal representatives. Bach left brothers and sisters of the whole blood, and their legal representatives.

      Held: 1. The right of a widow to elect to take the provision made for her in the will of her husband, is a right to be exercised by her in person. If she dies without having made her election, those who claim under her can only claim so muck, of her husband’s personal estate as she was entitled to under the law.
    2. In order to bar a widow of her right to dower and to such share of the personal estate of her husband as if he had died intestate leaving children, her election must be made either by matter of record in the proper court as required by statute, or actually and in fact under such circumstances as -would create against her an e'sloppel of her right to claim under the law.
    3. Where it does not appear that a widow has acted with a full knowledge of the condition of her husband’s estate and of her rights under the will and under the law, her acts in paying the debts of the husband out of his money, receiving and holding the balance, and having possession and control of the real and personal estate for five months after her husband’s death, do not constitute such an election, in fact, to take under the will, as estops her from claiming, under the law, within the time allowed.
    4. If the husband devise his real estate to his wife for life, with remainder to his heirs, and the wife elects to take her dower, or fails to make her election, the remainder vests in fee in the heirs, subject to the dower estate of the wife.
    5. Where the residue of an estate is, by will, directed to be distributed among testator’s heirs, in such portions as his wife may direct by will or otherwise, and she dies without having exercised the power conferred upon her, each of the heirs of the testator, or his legal represenative, takes an equal share under the will.
    Error to tbo District Court of Butler County.
    Tbo first above ease relates to tbe rights of tbo parties in the, personal estate of John D. Smith, deceased. Tbe second cast: relates to tbe rights of tbe parties to tbe real estate.

    Tbe facts relating to each will be stated as if there was but one case. Tbe first case was submitted in tbe trial court upon an agreed statement of facts, which are substantially as follows:
    Tbe agreed case shows:—That John D. Smith died April 30, 1877, testate; bis will was probated May 10, 1877; John D. Smith left no issue, but left Elizabeth Smith, bis lawful wife, to whom be was married in 1839. Elizabeth Smith (tbe widow) died August 1,1877, intestate, and without issue. She never attempted to divide or distribute tbe real or personal estate of John D. Smith in any way. William B. Millikin is tbe administrator of Elizabeth Smith, and Enoch D. Crecraft and the other plaintiffs are her legal heirs and distributees. P. J. 13. Welliver is the administrator of John D. Smith, and Joseph Smith and the other defendants are the brothers and sisters (and representatives of a deceased brother and sister) of John D. Smith.
    No administration was taken out on John D. Smith’s estate, until August 10, 1877 (after Elizabeth’s death), when Welliver was appointed his administrator with the will annexed. Millikin was appointed -administrator of Elizabeth Smith, August 22, 1877. The debts of John D. Smith and his funeral expenses were all paid by Elizabeth Smith out of his estate.' N o year’s support was set off to her, but $500 would have been a reasonable sum for a year’s support if she was entitled to have the same set off.
    Besides paying his debts and funeral expenses, John D. Smith left $8,750 in money, which, at his death, was taken possession of by Elizabeth, his widow, and by her, on May 10, 1877, deposited to her individual credit, in Second National Bank of Hamilton, where it remained at her death. It is agreed that $650 of said sum was her separate estate (being referred to in the will), and it is withdrawn from controversy, leaving balance of $8,100 in bank in controversy.
    The balance of John D. Smith’s personal estate, consisting of horses, cattle, hogs, farming utensils, household furniture, grain, &c., was, at John D. Smith’s death, taken possession of by the widow, Elizabeth, and retained by her until her death.
    Welliver, when appointed administrator of John D. Smith, took possession of the same, and had it appraised and sold as the property of John D. Smith, the entire proceeds being $2,859.89, which was the reasonable value thereof, and now in the hands of said Welliver as administrator. Said appraisement and sale was made against the protest of William B. Millikin, administrator of Elizabeth Smith.
    ' Of the said grain sold was 715 bushels of corn, sold for $250.25, which was planted after the death of John D. Smith, on the real estate owned by him and devised in his will, by a tenant to whom, by verbal agreement before his death, John I). Smith had rented the farm for the year 1877 on the shares. Tlie plowing was done by the tenant before John D. Smith’s death.
    The above are all the facts material to the controversy between the above named parties, and upon the above facts, it is, by agreement of all the above parties, submitted to the court to decide the following questions, and to enter judgment accordingly :—
    I. Is P. J. 13. Welliver, administrator with the will annexed, of John D. Smith, deceased, or is William-B. Millikin, administrator of Elizabeth Smith, deceased, entitled to have possession of said personal estate, and to administer upon the same ?
    II. Is William B. Millikin, administrator of Elizabeth Smith, entitled to have paid to him out of said estate the sum of $500 for said year’s support of said Elizabeth Smith ?
    III. In what manner and proportion and to whom ought said money, proceeds of sale of personal property and other personal estate, be distributed and paid after the expenses of administration have been first paid, and after payment of taxes ?
    The will of John D. Smith, dated April 24, 1875, is as follows:
    “I, JohnD. Smith, of Reily township, Butler county, Ohio, make and publish this my last will and testament as follows, to wit: I direct that my funeral expenses, and all just debts be paid as soon after my decease as possible. The residue of my estate, both real and personal, that I may possess at my decease, I give and bequeath -to my beloved wife, Elizabeth Smith, during her lifetime; she to have full possession, management and control of the same, with the privilege of disposing of any or all of the personal property for her use, together with all the proceeds of the real estate; she to have the privilege of disjmsing of six hundred and fifty dollars at her death to whomsoever slie may see fit (being the amount received from her father’s estate); the residue of my estate is to be distributed to the heirs of my side of the house in such portions as she may direct by will or otherwise.
    “In witness whereof, I, John D. Smith, the- testator, have hereunto set my hand and seal this 24th day of April, a. d. 1875.
    “ John D. X Smith. [Seal.]

      “ Signed, sealed and acknowledged in the presence of us, who subscribe our names as witnesses in the presence of the testator and in the presence of each other.
    “ Henry A. Cubberley.
    “ Joseph "Welsh.”
    The second case, relating to the real estate, was submitted on an agreed statement of facts, showing also that John D. Smith, at his death, was seized of certain parcels of real estate, all of which, except thirty-live acres, came not by descent, devise or deed of gift, and that Elizabeth Smith was married to him in 1839, and continued his lawful wife until his death.
    The court of common pleas .adjudged:
    1st. That the personal estate should be administered and distributed by the personal representative of John D. Smith.
    2d. That he should pay to the personal representative of the widow $500, which, it was agreed, is a reasonable allowance, for her year’s support.
    3d. That he should, after paying to the administrator of the widow said sum of $650, and taxes, &c., distribute the residue to the brothers and sisters, and their legal representatives, of John D. Smith.
    4th. That the real estate vests in said brothers and sisters and their legal representatives.
    The district court affirmed these judgments, except as to the amount allowed for the year’s support to the widow.

      Thomas Millikin, for plaintiff in error.

      Moore & Moore, for defendant in error.
   Johnson, J.

Much of the argument of counsel as well as the judgment of the courts below, is on the assumption that Elizabeth Smith, the widow, took under the will of her husband, John D. Smith. This necessarily involves a construction of the will, in order to determine the widow’s rights thereunder, and the rights of her representatives.

If, however, the widow did not take under the will, expressly as prescribed by the statute, or impliedly by such acts as would have estopped her from denying such election, then she takes under the law. If the latter is the case, it becomes immaterial to inquire what the will would have given her, had she taken under it. If she did not take under the will, the law fixes her rights.

If any provision is made by will for a widow of the testator, it is the duty of the probate court, to forthwith, after the probate of the will, issue a citation to the widow, to appear and make her election, whether she will take such provision, or be endowed of the lands of her husband. This election is to be made within one year from the date of service of the citation upon her. It must be made in person, and in the probate court, except where a commission is authorized to take such election. It is to be made after ah explanation of her rights under the will, and under the law in the event of her refusal, and is to be made a matter of record.

If the widow shall fail to made such election, she shall retain her dower, and such share of the personal estate of her husband as she would be entitled to by law, in case her husband had died intestate leaving children.” To determine the matters in controversy, we must first ascertain whether Elizabeth Smith took under the will, or under the law.

That she was not cited before the probate court, nor her election made a matter of record, is conceded. She died before the time had expired in which she could have elected.

She alone could elect. It is a personal right. Neither her administrator nor her heirs could make it.

But it is claimed that, although she did not elect as prescribed by statute, yet she in fact did so elect, and that her rights depend on the terms of the will. This claim is that the facts agreed on show such an actual election as would have estopped her, had she lived, from claiming under the law.

The facts relied on for this purpose are, that during the time she survived her husband, some five months, no administrator was appointed, nor was any claim made for dower ; that she paid the debts and funeral expenses ; that there was left some $8,000 in cash, which she deposited in bank in her own name, and that she took and retained possession of the personal property of her husband, consisting of stock on the farm, farming utensils and other chattels. She did not attempt, to convert any of this property to her own use, nor place it beyond the reach of an administrator of her husband’s estate, when one should be appointed. Indeed, every dollar of the assets, as appears by the agreed statement, which remained after payment of debts and funeral expenses, remained at her death within the reach of the representatives of her husband. The will gave her a power of sale of the personal property, and the rights to the proceeds of the farm, and an absolute disposal of $650, the amount received from her father’s estate, yet she exercised none of these rights.

The acts relied on are by no means conclusive. They are not inconsistent with an intention to elect, when cited, to take under the law. They are such acts as would preserve the estate intact for that purpose. This may have been the intention of the widow. •

While they tend to prove that she was acting under the will, they are not so inconsistent with her rights under the law as to estoja her from claiming under the law, especially when only a few months had elapsed since her husband’s death, and there was no personal representative of the estate. It can hardly be claimed that, had she been cited to appear before the court to make her election, after doing these acts, she would have been denied her election.

In order that acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended, by her acts, to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be .an election. 1 Lead. Eq. Cas. title Election Anderson's Appeal, 36 Penn St. 476, 496; Bradford v. Kent, 43 Penn. St. 474; English v. English, 5 Green Ch. 504; O'Driscoll v. Koger, 2 Desaus. 295 ; Wake v. Wake, 1 Vesey, Jr. 335 ; Reynard v. Spence, 4 Beav. 103; Tooke v. Hardeman, 7 Geo. 20 ; Dixon v. McCue, 14 Gratt. 540.

It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow’s rights under the law, unless they are of such a marked character and of such long duration as will clearly and distinctly evince' a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower.

Thus, where real estate was devised to a widow for life, remainder in fee to her sons, and she in fact took under the will and occupied the premises for more than sixteen yearns, .-she was estopped to deny her election. Thompson v. Hoop, 6 Ohio St. 480.

So in Bradford v. Kent, 43 Penn. St. 474, it was held that where a widow, with full knowledge of the value and character of her husband’s estate, receives the provision made for her in his will, she cannot, after seventeen years, claim that she did not intend to relinquish her dower.

In Stilley v. Folger, 14 Ohio, 610, it was held that the act of taking possession of the prouerty within the time limited for making the election was not an election under the will.. Indeed, it is said in that case, that the only mode of proving an election is by the record, unless the record is lost or destroyed. This decision seems at variance with . Thompson v. Hoop, supra, and numerous other cases, where an estoppel in pais was proven and held effectual; but, as applied to the facts of the case then before the court, where the acts relied on to create an estoppel were within the time limited by law for an election before the court, and when such acts did not amount to an actual conversion of the property, there is no inconsistency. In all the cases in which it is held that an implied election bars dower, the acts relied on are long continued, unequivocal, and inconsistent with the claim for dower. Reed v. Dickerman, 12 Pick. 146 ; Delay v. Venal, 1 Met. 67; Upshaw v. Upshaw, 2 Hen. & Munf. 381; Ambler v. Norton, 4 Hen. & Munf. 28; Clay v. Hart, 7 Dana, 1; Craig v. Walthall, 14 Gratt. 518.

We conclude, therefore, that the acts relied on as an election are not such as -would have estopped her, had she oeen cited as the law requires, from making her election in court after a full explanation of her rights under the will. These acts were within the time the statute gave her to choose, and they are not such as in equity creates an estoppel.

The widow must, therefore, be deemed to have failed to make her election to take under the will. In such a case, the statute says she shall retain her dower and such share of the personal estate of her husband as she would be entitled to had her husband died intestate, leaving children.

The judgments of the courts below must, therefore, be reversed, and a judgment rendered in accordance with the foregoing decision.

II. As to the real estate :

The failure of the widow to take, under the will, left the real estate to vest in the devisees of the estate in remainder, subject to the widow’s dower. Her death terminated her right to have dower assigned, or to claim any share of the accruing rents and profits. The will directs that the residue of the estate be distributed to the testator’s heirs in such ■portions as his wife may direct by will or otherwise. She 'died without exercising this power. Having failed to make such distribution, the devise takes effect in favor of each of the heirs or his legal representatives in equal shares. As the real estate vested in the residuary devisees, the rents and profits accruing after the testator’s death vest in them also. This settles the right to the proceeds of the sale of the crop of corn. As between the personal and legal representatives of John D. Smith, it belongs to the latter, but as the plaintiffs in error have no interest in this claim, the judgment of the court below in regard to this item is left undisturbed.

These heirs are the defendants in error in the second above case. This judgment is therefore affirmed.


author: White, J.

text:
    Tod v. Stambaugh.
    1. It is orror to reverse or modify a judgment without having the parties before the court, affected by such reversal or modification.
    3. Where several defendants are sought to be charged upon the same demand, and the defense sot up by one operates for the benefit of all, it is error to reverse the judgment as to the answering defendant and leave it standing in full force against the others.
    8. The lessee in a coal lease, by its terms, purchased all the coal on the demised premises, and agreed, with all reasonable dispatch, to mine and remove the coal, and on the first days of January and July of every year to pay a specified sum per ton for all the coal that may have been mined and removed; also, that if coal was found sufficient to render the same practicable, to mine not less than thirteen thousand tons annually, or on default thereof to pay for said quantity. It was further stipulated that in the event that the payments thus required to be made should be more than sufficient to pay for the coal mined in any year, the “ surplus payments ” were to apply on any future year’s mining that might be in excess of said quantity. Reid: 1. That thej quantity of coal was to be ascertained and paid for in the mode prescribed by the lease. 3. That in an action to recover an annual payment for thirteen thousand tons, an averment in the answer that the “ surplus payments ” made in pursuance of the lease were more than sufficient to pay for the unmined coal remaining on the premises, constitutes no defense.
    Error to tbe District Court of Malioniug County.
    The original action was brought in behalf of the heirs of Jacob Wise, Elizabeth Stambaugh et al., on an agreement described as a lease, entered into between them and David Tod, on October 1, 1861, to collect two installments of rent of $1,625 each, one due on the 1st of January, 1874, and the other, on the 1st of July of the same year.
    By the terms of the lease, the lessors granted, leased and sold to Tod, his heirs and assigns, all the mineral coal in and under a certain tract of land in the lease described, and the right to enter upon the premises to freely mine and remove the same. On the part of Tod the lease contained the following stipulation:
    “ And as a further consideration for said grant, the said Tod agrees to go forward, with all 'reasonable dispatch, to mine and remove said stone coal, and keep an accurate account thereof, and at the end of each six months, to wit, on the 1st days of January and July of every year, to pay to each of the said parties one-thirteenth part of the sum of twenty-five cents per ton, of 2,100 pounds, for all the coal that may have been mined and removed therefrom ; and if found in quality and quantity sufficient to render the same practicable, after the year 1862, to mine not less than thirteen thousand tons annually, or, on default thereof, pay for said quantity; in which event the surplus payments are to apply on any future year’s mining that may be in excess of said quantity.”
    This lease was assigned by Tod to the Girard Iron Company, by whom, in September, 1869, it was assigned to Morris, Ward & Brown.
    The said assignees respectively assumed to perform all the terms and agreements of the lease, aiid save their assignors harmless on account thereof.
    Tod’s executors, as well as the said assignees, were made defendants to the petition ; and Tod’s executors, by way of cross-petition, prayed that the said indemnity be enforced against said assignees respectively, and that they be required to discharge his liability to the plaintiffs.
    The answer of Morris, Ward & Brown admits their liability under the lease, but avers payment of all installments due prior to January 1, 1874; and, as to the installments sued for, the answer sets up the following matter .as their defense:
    “ These defendants admit that said two payments of $1,625 each, to recover which this suit has been brought, have not been paid, but they deny that they are due and payable under said lease, or that any sum is or ever can be due plaintiffs from any of the defendants, under said lease, because they say that there has been paid by said Tod, said Girard Iron Company and these defendants, under said lease, about the sum of $15,000 above paying for all coal mined at the rate of twenty-five cents per ton, that there is not sufficient minable coal on said premises to repay these defendants at the price stipulated, said sum which was paid as payment in advance for coal to be mined, and so they aver that they have in fact paid for all coal mined and that can be mined from said premises, and say that their said lessees have the right to continue the proper and diligent mining of what coal remains to be mined, without further payment.”
    To this defense, the plaintiffs and Tod’s executors respecff ively demurred. The demurrer was sustained, and judgment rendered in favor of the plaintiffs, against all of the defendants, which was to be satisfied by execution first against Morris, Ward & Brown, and, on failure to obtain satisfaction from them, by execution against the Girard Iron Company, and, on failure to obtain satisfaction by the execution last named, the executors of Tod were required to pay said judgment from the assets in their hands. In case Tod’s executors should pay the judgment, they were subrogated to the rights of the plaintiffs in the judgment against the other defendants.
    On petition in error, filed in the district court by Morris, Ward & Brown, to which the original plaintiffs alone were made parties defendant, the judgment, as to the said plaintiffs in error, was reversed.
    And, on a subsequent petition in error, filed in the same court by the same plaintiffs in error, to which all the other parties interested were made defendants, a similar judgment of reversal was rendered, the court refusing to reverse said judgment, except as it affected the said plaintiffs in error.
    The present petition in error is prosecuted by Tod’s executors, to which all the other parties in interest are made defendants, to obtain the reversal or modification of the judgment of the district court.
    The errors assigned are in substance that the district court reversed the judgment of the court of common pleas instead of affirming the same ; also that the district court reversed the judgment as to Morris, Ward and Brown, leaving it in force as against Tod’s executors, and the Girard Iron Company.

      Geo. M. Tuttle, B. F. Hoffmam, and T. W. Sanderson, for plaintiff in error.

      D. M. Wilson, for defendant in error.
   White, J.

The judgment of.- the district court is manifestly erroneous. In the first place, it was error to reverse or modify the judgment of the common pleas without having before the court the parties affected by such reversal or modification. In the next place, after the filing of the second petition in error, and all the parties interested were before the court, it was error to reverse the judgment as to Morris, Ward & Brown, and leave it standing in full force against Tod’s executors, and the Girard Iron Companju

If the answer of Morris, Ward & Brown constituted a defense to the action for them, it operated equally as a defense for their co-defendants.

The cause was in equity, and the same liability was sought to be enforced against all the defendants; but vruter sese, they were chargeable in the inverse order in which they became assignees of tho lease and assumed to perform its stipulations. On the cross-petition of Tod’s executors, and the undisputed facts, Morris, Ward & Brown were bound to fulfill the terms of the lease and save the executors harmless on account thereof. By the judgment of the district court Morris, Ward & Brown were relieved from this liability, and the performance of the terms of lease charged upon Tod’s executors and the Girard Iron Company.

If the court of common pleas was right in sustaining the demurrer to the answer, the judgment of that court ought not to have been disturbed. The only remaining question, therefore, is, whether the answer constituted a defense. We think it did not.

By the terms of the lease the lessee purchased all the coal on the demised premises. The quantity of coal was to be ascertained and paid for in the mode prescribed in the lease. It is stipulated in the lease that Tod is to go forward with all reasonable dispatch, to mine and remove the coal, and on the 1st days of January and July of every year, to pay twenty-five cents per ton for all the coal that may'have been mined and removed; and if found in quality and quantity sufficient to render the same practicable, after the year 1862, to mine not less than thirteen thousand tons annually, or on default thereof, pay for said quantity. It is further stipulated that in the event that the payments thus required to be made should be more than sufficient to pay for the coal mined in any year, the surplus payments ” are to be applied on any future year’s mining that may be in excess of said quantity. By this stipulation the surplus payments are to be applied in payment of the excess of coal mined, annually, over and above the thirteen thousand tons. The claim set up in the answer is that such payments are to be applied to pay for the unmined coal, without reference to when mined, if mined at all. This claim is not in accordance with the agreement, and cannot be supported.

The demurrers to the answer were properly sustained by the court of common pleas, and che district erred in holding otherwise. The judgment of the court last named, is, therefore, reversed, and that of the common pleas affirmed.


author: Okey, C. J.

text:
    Diehl v. Friester
    1. Where a proDate judge allowed an injunction in a cause pending in the court of common pleas, but an undertaking therefor was never given, a fine, with imprisonment for its non-payment, imposed upon the party enjoined for an alleged contempt in disregarding such injunction, is not authorized by law ; and where the person so imprisoned brings an action for such injury against the party causing the imprisonment, it is not necessary to allege malice and want of probable cause.
    2. A motion that one judgment be set off against another is an appeal to the equitable power of the court, to be granted or refused upon consideration of all the facts; and in granting such motion, the claim of the attorneys for fees will be respected, wherever it appears to be right, in view of the facts, that this should.be done.
    Eeeob to the District Court of Monroe County.

      Spriggs & Driggs, for plaintiff in error.

      Hunter & Mallory, for defendant in error.
   Okey, C. J.

Diehl brought suit against Friester in the court of common pleas of Monroe county. The action was prosecuted on promissory notes and a real éstate mortgage to secure their payment, executed by Friester to Diehl; the prayer was for a judgment, and a sale of the land to satisfy the same; and at the December term, 1877, judgment was rendered for $1,442.50 and costs, and sucli order of sale was made. On November 17, 1877, while the suit was pending, Diehl obtained from the probate court of that county an injunction in the action, to restrain Friester from doing certain acts with respect to the property, and Friester was served with a copy of such order of the probate court; but no undertaking for such injunction was ever executed. On November 22, 1877, upon affidavit of Diehl that Friester was violating the injunction, the probate court 'caused the latter to be arrested, assessed against him a fine of $10 and costs, as for a contempt for disobeying the injunction, and in default of the payment of such fine and costs, he was, by order of such probate court, committed to the county jail, where he was confined for thirty days. Thereupon, Friester brought suit against Diehl in the court of common pleas of Monroe county, for false imprisonment, based on the above facts, and, at the June term, 1878, of that court, obtained a verdict and judgment for $245 and costs. At the same term Diehl showed to the court that the mortghged premises had been sold, in pursuance of the order of the court, and the proceeds applied in part satisfaction of the mortgage debt, leaving a balance of $1,092.18 on his aforesaid judgment; and thereupon, he moved the court that so much of his judgment as would equal the judgment of Friester should be set off against the same in satisfaction thereof. This motion was sustained as to the sum of $145, and no objection has been made to the order in this respect; but the court denied the motion as to the remaining sum of $100, which portion of the Friester judgment the court, by its order, allowed to Hunter & Mallory, who prosecuted, as attorneys for Friester, the suit for false imprisonment; and the judgment and orders were affirmed in the district court. This petition in error was filed by Diehl to reverse the judgment in favor of Friester, and to reverse so much of the order as denied to Diehl a set-off with respect to said sum of $100.

As to the sufficiency of the petition. It contains in detail the facts as to the suit of Diehl against Friester, the application of Diehl, for an injunction, the allowance of the injunction, the application for and issuing of an attachment, and the arrest, assessment of fine, and imprisonment of Friester; and it contains, furthermore, an allegation that no undertaking was ever given for the injunction, but none that such prosecution for contempt was malicious and without probable cause.

In trespass for false imprisonment, the gravamen is the wnlawftbl act of the defendant. Case for malicious prosecution may be maintained where a proceeding is carried on maliciously and without probable cause. "While an action for malicious prosecution may be maintained, notwithstanding the plaintiff was imprisoned upon a perfectly valid judgment or order, an action for false imprisonment cannot be maintained where the wrung complained of is imprisonment in accordance with the judgment or order of a court, unless it appear that such judgment or order is void. And this distinction is as important now as under the former practice. Spice v. Steinruck, 14 Ohio St. 213.

This is an action for false imprisonment. If Friester was imprisoned in pursuance of a valid judgment and order, the petition does not contain facts sufficient to constitute a cause of action, and the judgment must be reversed. But, in our opinion, the judgment and order for imprisonment were void, for •the reason that Diehl never gave the undertaking for the injunction required by the statute. Civil Code, §§ 242, 245, 247; Rev. Stats. §§ 5576, 5579, 5581. And hence that the petition is sufficient.

This is not a case where a party, upon being informed that an injunction has been allowed to restrain him from doing a particular act, does the act before there is time to give such undertaking. What, if any, power the probate court has, in a case of that sort, to punish for contempt, is a question which we need not determine.

Did the court err in holding that Hunter & Mallori should be preferred to Diehl as to $100 of the Friester judgment, and that, as to this amount, the set-off should be refused ?

The provisions of the statute relating to set-off, do not, iterms, apply to the set-off of one judgment against another on motion (Civil Code, §§ 26, 93, 97-99, 119; Rev. Stats. §§4993, 5071, 5075-5077, 5089), though doubtless those provisions will be applied whenever they are, in their nature, applicable to such motions. As the court say, in Holmes v. Robinson, 4 Ohio, 90, “ the practice of setting off one judgment against another, between the same parties, and in the same right, is ancient and well established.” Even the fact that the judgments are in different courts, one for a tort and the other on contract, and some of the parties in one case were not parties in the other, does not necessarily afford an insuperable objection to such set-off. But, as Gibson, C. J., observes (Ramsey’s Appeal, 2 Watts, 230), there is a fallacy in supposing that such set-off is a legal right. “ Judgments are set off against each other,” said he, “ not by force of the statute, but by the inherent power of the court immemorially exercised. . . An equitable right of setting off judgments, therefore, is permitted only where it will infringe on no other right of equal grade.” And see Love v. Freer, Wright, 412. “ Such power,” said Devens, J., in Ames v. Bates, 119 Mass. 397, “is only to be exercised upon careful consideration of all the circumstances of the transaction out of which the judgments arise, and in order to protect the just rights of parties.” “ The privilege of setting off judgments,” said Coleridge, J., in Simpson v. Lamb, 40 Eng. L. & Eq. 59, 7 E. & B. 84, “ is not an inherent incident of the suit, but is given by permission of the court, with reference to all the circumstances of the transaction.” And it has been recently held that where the sét-off is sought by motion, the matter so far rests in the discretion of the court that the refusal of an order for such set-off will not be reviewed on error. Chipman v. Fowle, 180 Mass. 352.

Guided by this view of the law, courts have refused to order such set-off, where by granting it the just rights of assignees would be disturbed. Ramsey’s Appeal, supra. So, it has been x-epeatedly held that where a debtor is entitled to hold a judgment as property exempt from execution, the object of the law being, not to exonerate the debtor from the payment of his' debts, but “ to protect his family ” (Sears v. Hanks, 14 Ohio St. 298, 301), a set-off as to such judgment will not be ordered. Curlee v. Thomas, 74 N. C. 51; Duff v. Wells, 7 Heiskell, 17 ; Wilson v. McElroy, 32 Penn. St. 82 ; Beckman v. Manlove, 18 California, 388. And see Comer v. Dodson, 22 Ohio St. 622; McConville v. Lee, 31 Ohio St. 447; Rev. Stats. §§ 5433, 5441 ; Thompson on Exemp. § 893. And it has likewise been held in many cases, that a judgment will not be set off against another judgment, to the prejudice of an attorney who contributed by his skill and services in obtaining it. Simpson v. Lamb, supra; Johnson v. Taylor, 1 Disney, 169 ; Ames v. Bates, supra; Carpenter v. Sixth Av. Ry., 1 Am. L. Reg. N. S. 410, 424; Pewy v. Chester, 53 N. Y. 240; Zogbaum v. Parker, 55 N. Y. 399.

Although an attorney may contribute his skill and services. in obtaining a judgment for his client, he has, in this state, no lien on such judgment for his fees, where there is no agreement for such lien known to the judgment debtor, in the sense that such judgment debtor may not effectually satisfy such judgment by payment of the amount thereof to the judgment creditor; nor do we doubt the right of parties to compromise any pending suit, in opposition to the wish of their attorneys. Put, on the other hand, an attorney may have a claim upon the fruits of a judgment or decree which he has assisted in obtaining, or upon a sum of money which he has collected, and under some circumstances courts will aid him in securing or maintaining such claim. Thus he will be protected in retaining his fee out of money which he has collected for his client. Longworth v. Handy, 2 Handy, 75. He will be protected in his claim as attorney on a fund in the hands of a receiver, (Olds v. Tucker, 35 Ohio St. 581), or in court. Ingham v. Lindemann, ante, 218. This protection, it will be seen from the cases cited, will be afforded in many other cases. And why should not Hunter & Mallo.ry be protected to the same extent as if Diehl had paid the money into court ? The motion for set-off was, as we have seen, an appeal to the equitable power of the court, and where such appeal is made, the court looks not merely to the form the transaction is made to assume, but to its substance. The attorneys contributed, undoubtedly, in obtaining the judgment. The court may have properly charged, under authority of Finney v. Smith, 31 Ohio St. 529 ; Stevenson v. Morris, ante, 10, that if the jury found that Diehl was actuated by malice in causing Friester’s arrest and imprisonment, they might, in estimating compensatory damages, allow to the plaintiff reasonable counsel fees in the prosecution of his action. If such was the fact, and attorney’s fees were thus included in the verdict and judgment, upon what principle could Diehl be entitled to them, to the exclusion of the attorneys, who had not been paid ?

Finally, it is said that the attorneys did not claim an allowance by the court of such fee, and that the fee was allowed without evidence. But we do not think this view is warranted. The record does not contain the evidence, nor does it, in terms, show any application for such allowance. But error will not be presumed. The cases were both tried in the same court and doubtless before the same judge. The record shows that nothing could be collected from Friester by process, and it may properly be assumed that when the motion for set-off was presented, Hunter & Mallory suggested to the court that they had not been paid their fees, and that the only way they could secure compensation was by an allowance out of the Friester judgment. While the record does not show what evidence was offered as to the value of their services, the proof was no doubt satisfactory to the court; and besides, as held in Ingham v. Lindemann, supra, the amount was in some degree to be determined by the judge before whom the services were rendered, from his own knowledge of their value. Perhaps, indeed, there was an agreement between Friester and his attorneys as to the amount of the fee and its lien, and that this was shown to the court. However, that may be, we hold that in any view there was no error in the courts, below of which Diehl can complain.

Judgment affirmed.


text:
    Railroad Company v. Lee.
    Where a prosecuting attorney appears before a magistrate, at tbe request of a citizen, and prosecutes one charged with the commission of a felony, preparing the papers necessary for such purpose, there is no implied contract that such citizen will pay him for such services. ■
    Error to the District Court of Erie County
    On May 22, 1875, Benjamin E. Lee brought suit in the Court of Common Pleas of Erie county, against the Cincinnati, Sandusky and Cleveland Railroad Company, to recover for services rendered as an attorney at law, for and at the request of the company. The services, it is alleged, rendered in February, 1874, were the prosecution of suits, drawing and copying papers, and giving advice to the company’s agents in its business.
    The answer is as-follows: “Between the 10th and 20th days of February, 1874, the plaintiff was the duly elected and qualified, and acting prosecuting attorney of Erie county, Ohio, which said office was held by the plaintiff from the first day of January, 1873, to the 1st day of January, 1875, and the certain suits in said petition referred to were criminal suits for felonies against a citizen of said Erie county, instituted before the mayor of the city of Sandusky, in said Erie county, and that all the services referred to and mentioned in said petition, were services rendered in counseling and advising and prosecuting said criminal suits before the mayor, and writing and copying papers necessary thereto. And this defendant admits that its officers did consult the plaintiff in regard to said criminal prosecutions, and state the facts relating to the same to the said plaintiff, and ask his advice and direction therein, and that the said plaintiff did advise the prosecution of said criminal suits, and aid in the preparation of papers for the same, and appear before the said mayor, in the prosecution of the same, at the request of the officers of this defendant; but this defendant denies that the plaintiff was offered or promised any compensation therefor, or that he is entitled to any.
    A demurrer was interposed to this answer and the same was sustained ; and no further answer having been filed, the cause was, by consent of parties, submitted to the court on the petition and evidence, and judgment was rendered in favor of Lee for $300 and costs, which judgment was affirmed in the district court. This petition in error is filed to reverse both judgments.

      S. A. Bowman, for plaintiff in error:

      Gilmore v. Lewis, 12 Ohio, 281; Goulden v. State, 11 Georgia, 47. And see Rea v. Smith, 2 Handy, 193

      T. P. Finefrock, for defendant in error, and B. F. Lee, in person:

      Smith v. Portage County, 9 Ohio, 25. And see Sharp v. Kirkendall, 2 J. J. Marsh. 150 ; Davis v. Munson, 43 Vt. 676.
   Okey, C. J.

Lee having performed services as an attorney, in pursuance of the request of the railroad company, the agreement of the company to compensate him would be implied, in the absence of any other fact. But the law does not -imply such promise in all cases where one performs service at the request of another. Take the familiar example of a son who continues, after arriving at age, to live with his father, and perform services at his request. The son may have expected to be paid wages, but.from the mere fact that he acted under direction of his father in the same way as during his minority, a contract to pay wages will not be implied.' To constitute an agreement to pay wages in such a case, it is not essential that any price should be fixed, but words must be employed showing that both parties understand that wages are to be paid.

It is the duty of the prosecuting attorney to conduct the prosecution of offenders in the court of common pleas; but in Smith v. Portage County, 9 Ohio, 25, it is said that he is not bound to appear before a justice of the peace or mayor, in a criminal case. The law remains the same to the present day. But, in fact, that officer, in many cases, appears voluntarily in the examining court,-and conducts the prosecution there. He doss the same thing sometimes at the request of a citizen, without any expectation on his part to receive, or on the part .of the citizen to pay, compensation for the services.

¥e cannot say, looking to the facts stated in this answer, that there was an implied contract on the part of the company to pay Lee compensation for his services. The further proposition is urged by the counsel for the company that even an express agreement to pay would have been void, as contrary to public policy. But upon that question we express no opinion ¥e hold the answer to be sufficient, and, hence, that it was error to sustain a demurrer to the answer. The judgment will be reversed and the cause remanded for further proceedings.

Judgment reversed.


author: By the Court.

text:
    The State ex rel. v. Turnpike Company.
    The acts of March 27tb, 1875 (72 O. L. 85), and of June 12th, 1879 (76 O. L. 153), amendatory of the act of March 16th, 1875 (S. & S. 147), dividing all turnpike companies within the state into separate and distinct classes, have a uniform operation upon all the members of each' class and are not in conflict with article 2, section 26 of the constitution of the state. ’
    Application for the writ of quo warranto.

    The petition recites that the defendant, the Portsmouth and Columbus Turnpike Railroad Company, is a corporation under the laws of this state, owning and operating a turnpike road running from Chillicothe through Ross, Pike and Scioto counties to the village of Portsmouth. It further alleges that, for more than four years, it has misused its franchise to collect tolls by charging a higher rate than is allowed by law.
    The defendant, by an amended answer, avers that it was. incorporated under a special act of the general assembly of Ohio, passed February V, 1834 (29 Ohio L. 34), and subsequently accepted the provisions of the act of March 16, 1865, entitled “ An act to fix the rates of toll on turnpike and plank road companies ” (S. & S. 147); and has ever since charged and collected the tolls in this last act allowed and specified, and no more.
    The amendments to this act, passed March 27,1875 (72 Ohio L. 85) and June 27,1875 (76 Ohio L. 153), defendant declares' violate the organic law of the state, and are unconstitutional and void. To this answer a general demurrer is interposed.
    By these amendments the rates of toll which turnpike companies are authorized to collect are reduced. The first, however, contains a proviso that its terms shall not apply “ to companies which are in debt for the original construction of said turnpike until five years from the passage of tins act.” The second excepts from its operation “ turnpike roads constructed of and kept in repairs with two-thirds broken limestone,” which are permitted to charge the same rates as formerly.
    It is claimed by the defendant that these amendatory statutes do not operate uniformly upon all incorporated turnpikes, and are, therefore, in conflict with article 2, section 26, of the constitution, which provides that “ all laws of a general nature shall have a uniform operation throughout the state.”

      Converse, Booth & Keating, for plaintiff:
    The question in this case is, whether the acts in question operate uniformly throughout the state, within the meaning of the constitution. As to when a law operates uniformly, see McAunich v. Railroad Co., 20 Iowa, 338; Const. of Iowa, art. 1, § 6 ; Railroad Co. v. Soper, 39 Iowa, 112; Haskell v. City of Burlington, 30 Iowa, 232; Railroad Co. v. Iowa, 94 U. S. 163 ; Smith v. Judge Twelfth Judicial District, 17 Cal. 554; California Const. art. 1, § 11; McGill v. State, 34 Ohio St. 24.
    As to whether the classification of turnpikes under the said acts works an injustice, see Railroad Co. v. Iowa, 94 U. S. 164.
    For acts of the legislature classifying corporations, see Revised Statutes, §§ 3232, 3234, 3235, 3240, 3244, 3274,3275, 3276, 3277, 3285, 3299; 72 Ohio L. 85, § 1; act of April 25, 1873 (70 Ohio L. 161); Railroad Co. v. Cole, 29 Ohio St. 126.

      M. A. Daugherty, Huston James, and Okey & Throckmorton, for defendants:
    We maintain that the acts of 1875 (72 Ohio L. 85,) and 1879 (76 Ohio L. 153,) are unconstitutional.
    The constitution provides: “Art. 2, § 26. All laws, of a general nature, shall have a uniform operation throughout the state.”
    “Art. 12, § 1. The general assembly shall pass no special act conferring corporate powers.”
    “Art 13, § 2. Corporations may be formed under general laws.”
    Assuming that the acts in question are of a general nature,’ have they a uniform operation throughout the state ? .
    The subject matter to which they relate is corporate turnpikes. It is clear that they do not operate uniformly upon all corporate turnpikes, because the first excepts from its operation those in a certain financial condition, and the second attempts to classify them accdrding to certain peculiarities of construction and repair. They do not equally affect all turnpike corporations. They grant privileges to companies in debt or whose roads are constructed and kept in repair with limestone, which are not granted to other companies. It is a mere evasion to say that they act uniformly upon each class, because, if corporate turnpike companies may be divided into two classes by means of any such description, it would not be a difficult thing to have as many classes as there are turnpike companies in the state, and thus specially legislate for each company. In that way every constitutional limitation upon legislative power might be evaded.
    If the power to classify corporations created for the same specific purpose be admitted, then the general assembly is the sole judge of the propriety and extent of such classification. Such admission is, in effect, to declare that the safeguards inserted into the constitution, upon the subject of corporations, are directory, and to throw open the door to special legislation. •with all its attendant evils. Under such a construction, railroad companies, whose roads run east and west, could be granted privileges not accorded to those running north and south. Those carrying the heaviest mortgages might charge the highest or lowest rates of fare and freight. Those having through connections might enjoy exclusive benefits. Those having steel rails, air brakes, sleeping cars, hotel cars, and each or all of the modern improvements might severally charge more or less according to the whim of the legislature.
   By the Court.

The classifications of all turnpike companies, adopted by the amendments to the act of March 16,1865, are not unreasonable or arbitrary; and, -inasmuch as their provisions have a uniform operation upon all the individuals comprised in each class, they do not fall within the inhibition of article 2, section 26 of the constitution.


author: Longworth, J.

text:
    McLain v. Simington.
    1. The undertaking for attachment provided by section 193 of the code of civil procedure (3 S. & C. 1004), is not a specialty, and the want of a seal does not affect its validity.
    3. Where the name of the surety to such undertaking does not appear in the body of the instrument, but the language used is : “ We, A. B. and-hereby undertake, &c,” the omission of such name does not affect the validity of the undertaking or the obligation of the surety. Language of opinion in Stephens v. Allmen, 19 Ohio St. 485, qualified.
    Error to the District Court of Morrow County.
    The defendant in error, Simington, brought an action in the Court of Common Pleas of Morrow county, against McLain, plaintiff in error, for the recovery of money only, and obtained an order of attachment, which was levied upon certain property belonging to McLain. The undertaking given was as follows:
    “ "Whereas, B. W. Simington has commenced a civil action against I. T. McLain, in tbc court of common pleas, within and for tlie county of Morrow, state of Ohio, to recover the sum of eighteen hundred dollars, with interest thereon, from the 6th day of July, a. d. 1876.
    “And, whereas, the said B. W. Simington has applied to the clerk of said court, by filing the necessary affidavit, for an order of attachment to be issued in said action against the said I. T. McLain.
    “Now, therefore, "We, B. W. Simington and--hereby undertake to the said I. T. McLain, in the penal sum of twenty-two hundred dollars, that the said B. W. Simington shall pay to the said I. T. McLain all damages which the said I. T. McLain may sustain by reason of said attachment, if the order should have been wrongfuly obtained.
    “ Dated this — day of August, a. d. 1877.
    “ B. W. Simington.
    “ L. Maxwell.”
    McLain moved the court to vacate the attachment for the reasons:—
    1st. That no sufficient undertaking had been given, and
    2d. That the affidavit, upon which the attachment was obtained, was untrue.
    The court overruled the motion; and error to this ruling was prosecuted in the district court. The latter court affirmed the order of the common pleas. This judgment of affirmance is now before us for review.

      A. K. & J. C. Dunn, and F. K. Dunn, for plaintiff in error:
    The undertaking was not executed by any surety of the plaintiff, as required by law. Code, § 193; State v. Medary, 17 Ohio, 565; Lang v. Pike, 27 Ohio St. 498; McGovney v. State, 20 Ohio, 93; Stevens v. Allmen, 19 Ohio St. 485; Smith v. Hunt, 12 Ohio 260; Hayden v. Westcott, 11 Conn. 129.

      L. K. Powell, for defendant in error:
    A code undertaking need not be under seal, and hence it ranks as a parol contract simply. State v. Boring, 15 Ohio, 507; Smith v. Crooker, 5 Mass. 538; Bank v. Smith, 5 Ohio, 222; Fullerton v. Sturges, 4 Ohio St. 529; Visher v. Webster, 8 Cal. 112.
   Longworth, J.

The undertaking in question is unsealed, and the name of L. Maxwell, the surety, is omitted in the body of the instrument. Do these omissions affect its validity ? We think' not.

Although often erroneously called a bond, the undertaking provided for by section 193 of the-Code, (2 S. & 0. 1004,) is, in no sense, a bond, nor is there any law which requires it to be executed with the formalities of a specialty. It is not required to be under seal.

Doubtless cases might arise where such a total omission of description of the parties existed as would render it uncertain whether the names were signed to the instrument as evidence of an obligation assumed or merely as an attestation. Rut such is not the case here. The language in the instrument before us is, “ We, B. W. Simington and -, hereby undertake,” &c. The pronoun we, in this connection, can only refer to the persons whose names are subscribed.

Plaintiff in error relies upon the case of Stephens v. Allmen, 19 Ohio St. 485, and we are constrained to say. that the language of Brinkerhoff, J., in delivering the opinion of the court, seems to bear him out. In that case the writing in controversy was the official bond of the justice of the peace, and was unsealed. It was properly held by the court that this defect was fatal, and this is all that can be reasonably gathered from the judgment and the syllabus of the case. The learned judge, however, in his opinion, seems to base his decision upon the statement, that “the additional names subscribed to the official bond not appearing in the body of that instrument, there are no words of obligation to bind them, and they are of no significance whatever.”

We cannot find, from the report of the case cited, what was the language used in the bond referred to ; but we have no hesitation in saying that if it was substantially the same as that of the undertaking before us, the reasoning of the judge was erroneous. It is directly opposed to the decision in State, for the use, &c. v. Boring, 15 Ohio, 507-517, and numerous other decisions.

Brandt, in his work on'Sureties, cites authoritative decisions in support of the following propositions, which do not seem to have been seriously disputed:—

Although the name of a surety is not mentioned in any part of the body of a bond, but a blank intended for it is left unfilled, yet if he sign, seal and deliver it as his bond, he is bound. So, where the name of the surety is not mentioned in the obligatory part of a bond, but is mentioned in the recital of the condition, if he sign, seal and deliver it he is bound. Where one signs a lease between the signature of the lessor and lessee, in which lease it is said that the lessee binds himself and his security,’ but no name of a surety is mentioned in the lease and the lease is signed in the presence of others who sign it as witnesses, the party who signs between the signature of the lessor and lessee, will be held as surety on the lease. So where a lease had been signed by the lessor and lessees, and D., whosemame was not mentioned in the lease, signed his name to it after the names of the lessees, addiDg to his name the word ‘ surety,’ it was held that it sufficiently appeared that D. was the surety of the lessees, and that he was originally and not collaterally liable.” Brandt on Sureties, § 15.

With respect to the second ground of alleged error suffice it to say that, after a careful examination of the evidence, we do not feel warranted in disturbing the findings of fact made by the court below.

Judgment affirmed.


text:
    Darling v. Younker.
    1. Where an action is brought against an agent who, having received money to be carried to his principal, claims that the money is lost, the burden is on the agent to show there was no breach of duty on his part; and this is to be determined upon consideration of all the cir cumstances; and, ordinarily, the question is one of mixed law and fact, and not merely of law.

      2. Y. was employed by D. to carry a sum of money, consisting in-part of four $500 bank bills, to the town of O., there pay part of it to S. and carry and deliver the balance to him "(D.), owner of the money. Y. went to 0. by passenger train at night, riding in the same seat with F., an acquaintance, the car being half filled with passengers. While on the way Y., at the request oí F., lot the latter have one of the $500 bills in exchange for smaller bills. On arriving at O. the package of money was taken by Y. to a store in charge of B., and handed to B., who at the request of Y. locked it in his safe, the safe being one in ■which D. usually deposited his money. In the morning when the money was taken from the safe and counted, another $500 bill was missing. Y. paid S. as directed, and on the same day gave the receipt of S. and the balauce of the money to D. and stated to him the above facts. D. accepted the receipt and money, but brought suit against Y. for $500, basing his right to recover on the ground of negligence. Held, that on the facts stated, the court could not say as matter of law that Y. was liable.
    Error to tlie District Court of Coshocton County.

      Spangler Pomerene, for plaintiff in error :
    Edwards on Bailments, 91, 114, 287, 304, 321, 327; Story on Bailments, §§ 15, 186, 188, 232, 413; 1 Parsons on Con. 606* ; Shear. & Red. on Neg. §§ 12, 23 ; Angell on Car. §§ 48, 52, 62 ; Smith v. Stewart, 5 Ind. 220 ; Wheelock v. Wheelwright, 5 Mass. 104; Canah v. Hall, 23 Wend. 462 ; Raynolds v. Shuer, 5 Cowen, 323 ; Lichtenheim v. Railroad Co., 11 Cush. 70 ; Garnett v. Williams, 5 Barn. & Al. 53.

      Nicholas & James, for defendant in error:
    20 Ohio, 69 ; Shear. & Red. on Neg. §§ 8, 11, 13, 20; 24 Ohio St. 639 ; 1 Parsons on Con. 606*, 634; 19 Conn. 566; 40 Mo. 151; 59 Pa. St. 259; 48 Ill. 415; 105 Mass. 342; 32 Wis. 531; 38 N. Y. 455 ; Story’s Agency, § 236 ; 3 Phil. Ev. 539, 541; Angell on Car. §§ 12, 431, 433 ; 1 Smith’s Led. Cas. 333; 6 Hill (N. Y.) 588; 3 Ad. & El. 106; 20 Eng. L. & Eq. 451; 2 Green. Ev. § 642; Story on Bail. §§ 188, 410, 413, 454; 11 Cush. 70; 99 Mass. 605 ; 6 Barr. 417; 5 Serg. & R. 179; 10 Watts, 335.
   Okey, C. J.

The plaintiff (Darling) and the defendant (Younker) were neighbors living in Coshocton county, about fourteen miles from the town of Coshocton. They had known each other from boyhood, and both were dealers in live stock. The plaintiff had, in the hands of a firm engaged in soiling live stock at Pittsburgh, the proceeds of the sale of a lot of hogs which he had shipped to that city for sale ; and he also had a lot of hogs at Warsaw, in Coshocton county, which he wanted to send to Pittsburgh for sale by the same firm. Being unable to leave home by reason of sickness in his family, he employed the defendant to drive the hogs from Warsaw to Coshocton, take them from Coshocton to Pittsburgh by car, deliver them to the firm referred to for sale, receive from the firm the proceeds of the sale of both lots, bring such proceeds to Coshocton, there pay Stewart $1,200, and then carry and deliver to him, the plaintiff, the balance.

The hogs were shipped in a car at Coshocton, on December 23, 1874, the defendant taking passage in the caboose. Fink-bone, of Fairfield county, also a dealer in live stock, had a lot of hogs in cars of the same train, which he was taking to Pittsburgh for sale, and he and the defendant became acquainted in the caboose and stopped at the same hotel in Pittsburgh. The hogs taken by Finkbone, as well as those taken by the defendant, were sold the next day (December 24). In the afternoon of the same day, a member of the firm which sold the stock went with the defendant to one of the Pittsburgh banks, where the sum of $3,100.54, being the whole amount due to the plaintiff, was paid to the defendant. The money consisted of four bank bills, each for $500, and other bills of smaller denomination, and fifty-four cents in change. The defendant folded the bills in a piece of newspaper, and placed the roll in a pocket in the inside of his vest, and left the bank. Soon afterward, the amount due to Finkbone, for his hogs, being about $3,000, was paid to him at the si me bank, but h was unable to obtain at the bank any bill of a larger denomination than $50.

The defendant and Finkbone took passage on that evening at Pittsburgh, in the same passenger car, and came together as far as Coshocton, arriving there about ten o’clock at night. The defendant stopped at Coshocton, and Finkbone remained in tlie car until he reached Kirkersville, which is near his residence. On the way from Pittsburgh to Coshocton, the defendant and Finkbone sat together, conversing about the live stock business. Finkbone informed the defendant that he had tried to get larger bills, but failed. The defendant asked him if it would be an accommodation if he would let him have one $500 bill, and Finkbone said it would. About half the seats in the car were occupied, chiefly the middle seats. Finkbone took out his money, but at the .suggestion of the defendant, they went to the front part of the car, to get as far as possible from the other passengers,, and have the benefit of the light, and sat down together in one of the front seats. Finkbone then took from his package ten $50 notes, and handed them to the defendant, who took from the package in his possession one of the $500 notes, handed it to Finkbone, put the ten bills in the place of the bill he had given to Finkbone, and restored the package to his inside vest pocket, taking care that there should be no mistake in making the exchange, and that none of the bills should be lost. This was about an- hour before the train arrived at Coshocton.

The defendant, arriving at Coshocton, as already stated, in the night, it became necessary for him to remain at a hotel till morning. The banks were closed, of course, and it does not appear whether there was or was not a safe in the hotel where he stopped. There was, however, a hardware store- in Coshocton, owned by a firm in which a brother of the plaintiff was a partner, and the defendant was then aware of the fact that the plaintiff was in the habit of depositing considerable sums of money in the safe of that firm, which they kept in the store. The defendant went directly from the depot to the store, which lie found still open, Bonnett, a nephew of the plaintiff, and employee of the firm, being there alone. The defendant turned and was about to leave the store, when Bonnett inquired what was wanted, and the defendant informed him that he had a package of money belonging to the plaintiff, stating the amount, which he desired to have placed in the safe. Bonnett said he could attend to it, and took the package and locked it in the safe, and the defendant then went to Ms hotel, leaving Bonnett in the store. From the' time the defendant received the money at the bank until he handed it to Bonnett in the store, it had not been out of his pocket, except when he exchanged the bills, as already ex-, plained, on the train.

The next morning (December 25) the defendant went to the hardware store, and Bonnett, at his request, opened the safe and took therefrom the package of money and handed it to him. On counting the money, in the presence of Bonnett and the plaintiff’s brother, it was ascertained that one of the $500 bills was missing, the balance of the money, including two $500 bills, being there. The defendant paid to Stewart $1,200, in accordance with the instruction already mentioned, and on the same day (December 25) delivered to. the plaintiff Stewart’s receipt and $1,400.54, in money, and informed the plaintiff of all the facts here stated, including the exchange of bills, the deposit in the safe, and the loss of the $500 note.

Such, in substance, is the testimony of Younker, as delivered in the court of common pleas of Coshocton county, on the triid of an action brought by Darling against him to recover the sum of $500. His evidence was corroborated by the testimony of Finkbone, and the jury, believing the defendant’s story, found a verdict in his favor; the court, after overruling a motion for a new trial, rendered a judgment on the verdict; the district court affirmed the judgment, and this petition in error was filed to reverse both judgments.

During the trial, evidence was also offered to show that the defendant was confused at the time the money was counted in the store; that he then stated that in the money paid to him at the bank there were three $500 bills; and that he also stated that he did not have the money out of his pocket from the time he placed it there in the bank until he took it out in the hardware store. But an explanation as to these statements was furnished, showing that they, as well as the confusion, were caused by the defendant’s excitement on discovering the loss, and the statements were corrected by him on the same day. Furthermore, it was shown that he had said that he ■would pay the amount so lost to the plaintiff, but that he must have the matter investigated; and when the plaintiff brought suit, the defendant withdrew all proposals looking to a settlement. There was also evidence tending to show that the exchange of money on the cars was not an unusual occurrence.»

The foregoing embraces all the evidence, except with respect to two or three matters which seem to be wholly unimportant. What the facts in relation to the missing bill really are, may never be known. Whether the note was dropped in the cars, or whether somebody was dishonest, are matters of conjecture. The defendant is quite certain no mistake was made at the bank. In giving to the testimony a construction consistent with that honesty of the defendant which the plaintiff, with an acquaintance of forty years, believed he really possessed when he employed him to perform the service, we are not prepared to say the jury erred.

If, on learning that the defendant had taken one of the notes from the package, the plaintiff had treated the act as a conversion, and brought suit to recover the whole amount so received by the defendant at the bank, a different question might have been presented. It was the duty of the defendant to receive the money from the commission merchants at Pittsburgh, carry it to Coshocton, there pay to Stewart $1,200, and take the balance of the money to the plaintiff and deliver it to him. As Bigelow, C. J., says, in Kent v. Bornstein, 12 Allen, 342, any act or dealing with the money beyond this was outside of the scope of his employment. He had no authority to enter into any contract concerning the money in his hands, or to exchange it for other money, with third persons.” And see Phillpott v. Kelley, 3 Ad. & El. 106; Clendon v. Dinneford, 5 C. & P. 13; Greenwald v. Metcalf, 28 Iowa, 362; Edwards on Bailments, §§ 67, 97. But we do not find it necessary to decide as to the law that would have been applicable if the plaintiff had take*', .he course indicated. On being informed of the loss, the plaintiff accepted, as cash, the receipt of Stewart and the balance of the money in the defendant’s hands, making $2,600.54, which he knew included the bills given by Finkbone in exchange for one of the $500 bills, and the plaintiff brought suit against the defendant for the missing §500 bill. This, therefore, was a complete ratification by the plaintiff of the act of the defendant to that extent. Ewell’s Evans on Agency, 94.

No action could be maintained for the conversion of the missing bill, nor as for money had and received, the jury having found that there was no misappropriation of the bill by the defendant, and the verdict in that respect not appearing to be wrong. Sturgis v. Keith, 57 Ill. 451; 11 Am. Rep. 28; Perry v. Roberts, 3 Ad. & El. 113. But where an agent is guilty of negligence, whereby the money of his principal is lost, an action may be maintained on that ground. And here the question is whether we can say, as matter of law, that the acts of the defendant, in making the exchange in the ear and the deposit in the safe, afford a ground of recovery, as to the missing $500 bill, because of the defendant’s negligence, and without regard to the question of actual good or bad faith. But, as to the deposit in the safe, we can see in it nothing objectionable, under the circumstances. It was the safe in which the plaintiff made liis own deposits of money, and the safe was in charge of the brother and nephew of the plaintiff. Indeed, the plaintiff made no complaint that such deposit had been made. The real question, therefore, is as to the alleged negligence in making such unauthorized exchange of money in the cars.

An agent is not an insurer for the safe delivery of money placed in his care to carry to his principal. No doubt, however, where he claims that money so intrusted to him is lost, the burden is upon him, whether the service be for or without reward (Anderson v. Foresman, Wright, 598; Ewell’s Evans on Agency, 327), to show that the loss was not occasioned by a want of that care, on his part, which men of ordinary prudence observe when clothed with such a trust. The real question, in every case where negligence is alleged, is, whether there has been a breach of duty, and that is to be determined from a consideration of all the facts. But here the question whether the acts of the defendant amounted to such negligence as would afford ground of recovery, was a question of fact and not merely one of law. Cases can be found in which the question of negligence has been determined as one of law. See 28 Ohio St. 340; 35 Ohio St. 627; see, however, 13 Ohio St. 71, 72; 35 Ohio St. 57; Pierce on Railroads (ed. of 1881), 312, 314, et seg. But where the facts are in dispute, or the question is to be determined by inference from facts proved, the question is necessarily one of fact; nor can it be a question of law in any case, if reasonable men, unaffected by bias or prejudice, might disagree concerning the presence or absence of due care.

Judgment affirmed. |