author: Johnson, J. Okey, J.

text:
    Ohio ex rel. Laskey et al. v. Board of Education of Perrysburg.
    1 Where a power to contract is conferred by statute, and has been fully executed, and something additional, not authorized by the statute, is stipulated to be done, which is clearly distinguishable from the rightful execution, the execution of the power, so far as authorized, is good, and void as to the excess.
    2. A hoard of education, under the provisions of the act of March 13, 1868, (S. & S. 710) authorizing it to borrow money to pay existing indebtedness, by the issue and sale of bonds bearing interest at a rate not exceeding eight per cent, per annum payable semi-annually, agreed to borrow a sum of money at an aggregate rate of interest of fifteen per cent, in manner following: Eor the amount so to be borrowed bonds were to be issued, bearing the authorized rate of interest, and for the excess of interest orders on the treasury were to be issued payable at the same time as the legal interest. The bonds were regularly issued, bearing eight per cent, interest, and sold at par, and the money was received and used as authorized. Eor the excess of interest ordors on the treasury were at the same time issued and delivered to the purchaser, as agreed to by the parties, but were never presented for paymont, and after their maturity he offered to return them for cancellation. Held, that this agreement to pay excess of interest is void, and having never been executed in whole or in part, will not avoid a recovery on the bonds.
    3. The fact that such agreement for unlawful interest was made, does not make the purchaser chargeable with notice of prior fraudulent practices of members of the hoard in incurring the debt for the payment of which the money was borrowed, which had no connection with the sale of the bonds, and of which the purchaser had no knowledge.
    Application for a peremptory writ of mandamus.
    November 7, 1868, the board of education of school district No. 1, Perrysburg township, Wood county, being then engaged in tbe erection of a public school building, and having incurred obligations therefor, resolved to issue and sell bonds to aid in paying the same, under the act of May 13,1868. (S. & S. 710, 711.)
    The resolution is as follows :

      “ Mesolved, That this board borrow of George Laskey, [one of the relators herein,.and who, in this transaction, acted for his brother and himself] six thousand dollars, at the rate of fifteen per cent, per annnm, to pay indebtedness, and that we issue bonds for said money as follows : $2,000, two-and-a-half years; $2,000, three years; $2,000, three- and-a-half years ; said bonds to bear eight per cent, interest per annum ; and that to make up the deficit of interest, we issue orders on the treasury, payable at the same date of bonds, said orders not to bear interest, and to pay said bonds and orders over to said George Laskey for and on account of money so borrowed.”
    This was passed pursuant to an understanding with one of relators, that the money could be had on those terms-Accordingly three bonds of $2,000 each, bearing interest at eight per cent, per annum, payable semi-annually, due at the times stated, were issued and sold to relators, at par in cash, which was paid into the treasury and used for the purposes intended- At the same time, in order to make up the difference of interest of seven per cent , orders on the ti-easury were issued, falling due at the semi-annual payments of interest, and were delivered to relators with the bonds, aud as part of the same transaction.
    In January, -1869, the further sum of $1,200 was bor-' rowed under a like resolution, on a bond of that amount, and like tenor, and the difference in interest was provided for by similar orders.
    Thus, for the sum of $7,200 in cash, relators received the bonds of the school district, regular on their face, and negotiable in form, for an equal amount, with interest payable semi-annually at eight per cent.; and also a series of orders of even date, due at the respective times for payment of the eight per cent., for the extra seven per cent., amounting in the aggregate to $1,596.
    These ordex-s remain unpaid, in fact were never presented for payment, and the l-elators have offered to return them, and are now willing to surrender them for cancellation.

      There is a large amount of evidence found in the record, strongly tending to show that in the letting of the contracts for the erection of the building, and in the prosecution of the work, there was fraud and malfeasance by some, at least, of the members of the board, by which' the debt was incurred, for the payment of which these bonds were issued; but as it does not appear that relators were parties therein, or had notice thereof, and as those parties have no connection with the sale of the bonds, it is not necessary to abstract this evidence.

      Swan & Moore, for plaintiffs :
    "Whatever frauds, wrongs, infirmities and mistakes that existed, or was permitted by the defendant or the contractors with it, in the building of the school-house, purchasing of grounds, erecting out-buildings, etc., can not affect our right to recover. The relators were in no way parties to, or had knowledge of, any thing wrong or fraudulent in the transactions.
    Any fraud not connected with the sale of the bonds can not affect the validity of the bonds in the hands of innocent purchasers, and when the bonds upon their face purport to be issued under the statute in question. 27 Ohio St. 96 ; 5 Otto, 619; 4 Otto, 104; 2 Otto, 494; 14 Ohio St. 260 ; 11 Wis. 470 ; Dutcher, 297 ; 3 R. I. 199 ; 4 Hill, 263.
    As to what extent usury invalidates a contract, see 3 Ohio St. 302; 14 Ohio St. 260.

      Scribner, Hurd § Scribner, for defendants:
    The bonds held by the relators, as well as the orders that accompanied them, are absolutely void. Dillon on Municipal Corp. §§ 381, 426; 2 Potter on Corp. 668, § 551; 20 Cal. 96. Their sale, contrary to the statute, at less than piar value, made them so. 8 Paige, 527; 2 Hill, 159; 26 Wend. 192 ; Dillon on Municipal Corp. § 387, and notes; 2 Potter, Corp. 677-8 ; 2 Daniels, Neg. Instruments, 1st edit. 464, § 1533; Town Council of Newark v. Elliott and others, 5 Ohio St. 113 ; The City of Atchison v. Butcher, 3 Kan. 104, 120 ;
      Starin v. Town of Genoa, 23 N. Y. 439, 454-5 ; Gould v. The Town of Sterling, Ibid. 458-461.
    As to the effect of fraud in a part of a transaction upon the whole transaction, see Broom’s Maxims, 210; 6 Ohio St. 19, 37; 1 Ohio, 378; 12 Ohio, 544; 2 Parsons’ Notes and Bills, 426; 20 Gratt. 579 ; 2 Pet. 527.
    The bonds, then, with the accompanying interest-orders, executed and delivered simultaneously therewith, in pursuance of the resolution of the board, being, in substance and effect, bonds for the payment of semi-annual interest, at the rate of fifteen per cent, per annum, were unauthorized, illegal, and void. There was not only ho power to issue them, but they were issued in direct contraventiou of an express statute. Aside from their invalidity as a result of the illegality of the transaction, the board possessed no poioer to issue and negotiate the obligations, and this, of itself, renders them void. Bank of Chillicothe v. Swayne, 8 Ohio, 257 ; Creed v. Commercial Bank, 11 Ohio, 489 ; Miami Exporting Co. v. Clark, 13 Ohio, 1; Bank of Wooster v. Stevens, 1 Ohio St. 233 ; Strauss v. Eagle Ins. Co., 5 Ohio St. 59; Bank of the U. S. v. Owens, 2 Peters, 527; Dill v. Ellicott, Taney’s Cir. C. Dec. 233; Tiffany v. Boatman’s Institution, 18 Wallace, 375, 384-5.
    In the case at bar, the relators purchased directly from the board. They negotiated the terms of the loan before the bonds were issued, and the resolution of the board was passed to conform to and carry out the terms of the agreement so entered into. The relators participated in the attempted fraud upon the statute, and co-operated with the board in carrying it out. Under these circumstances, nothing can be clearer than the defense of a bona fide purchaser without notice, can not be made. Dillon, Muni. Corp. §§ 381,426 ; Cooley, Const. Lim., 1st edit., 218, note; McClure v. Orford, 4 Otto, 429 ; United States v. Macon County (Supreme Court U. S.), 11 Chic. Leg. News, 263; Hopple v. Brown Township, 13 Ohio St. 311; Beckel v. Union Township, 15 Ohio St. 437.
    The bonds being absolutely void, as well for illegality as for want of power to issue them, there can be no recovery upon them. It follows that the peremptory writ of mandamus should be refused. High, Extraordinary Remedies, 251, § 354; State v. Yeatman, 22 Ohio St. 546.
   Johnson, J.

The first section of the act of March 13, 1868 (S. & S. 710, 711), under which the bonds in controversy in this case were issued and sold, authorizes the issue of bonds “bearing interest payable semi-annually, at a rate not exceeding eight per centum per annum.” The third section provides, that “ the bonds so issued shall, in no case, be sold for a less sum than their par value ; ” and, also, that the bonds shall bear date the day of the sale, and provides for a complete record of the transaction.

That the parties intended to evade that provision of the statute against a rate of interest exceeding eight per cent, per annum, payable semi-annually, is clear.

That the form, which they gave to it, is not conclusive of its real character, as between these parties, is equally clear. These relators dealt directly with the board of education, and were parties to this attempted evasion of the statute. If that attempt avoids the bonds, they must suffer the consequences.

As a general principle, the agents or officers of a corporation like this, can not bind the public beyond the scope of its powers.

Where the duties and powers of these agents or officers are prescribed by statute or charter, all who deal with them are bound to know the extent of these powers.

It results from this doctrine, that contracts made that are unauthorized by the statute or charter, are void, and that the corporation may protect itself by the plea of ultra vires. The exception to this rule, in favor of bona fide holders of negotiable securities, need not be here noticed. There is, however, another class of exceptions, whose limits are not, as yet, very clearly defined, arising out of equitable considerations, that we may have occasion to notice further along.

This statute imposes two limitations on the power of the board in the issue and sale of bonds: they shall not bear a rate of interest exceeding eight per cent., and shall not be sold at less than their par value.

If either inliibition were omitted, the other could be readily evaded.

By the sale of bonds, at a discount, the semi-annual interest agreed to be paid would be increased beyond eight per cent., and thus, that clause of the statute would be evaded.

These two provisions, taken together, limit the powers of a board of education, so that it can neither directly nor in directly pay interest at a higher rate than the statute prescribes.

No claim is, or can be, made that the bonds were, in fact,sold for less than their par value, as an equal amount of cash was paid and received therefor, and the money was expended as public funds, for the purposes for which it was borrowed.

The resolution of the board fully explains the real transaction, and conclusively shows that the intention was to pay an excessive rate of interest, and that it was not the intention of either party to sell the bonds at less than their face value.

So far, then, as this intention of parties gives character to and affects the transaction, it must be regarded as an attempt to evade the interest clause of this statute, and not to sell the bonds at less than par.

Conceding that the court will, as Between the parties, go behind the face of the bonds, and ascertain the real nature of the transaction, we are left to determine whether an agreement to pay illegal interest, and the giving of these orders therefor, which have never been paid, and which are themselves void, entitles the corporation to plead ultra vires, and so avoid payment of the bonds. It was the object of this statute to protect the public. No obligation should be sold at less than par, and no contract to pay a higher rate of interest than that named could be made.

By complying with this statute the public would receive full value for the bonds, and be under no obligation to pay usurious interest.

'By non-compliance, the public would be injured to the amount of the discount, or of the excess of interest paid.

If the relief now sought be granted, it can not be claimed that any loss or injury results to the school district. It is the case of an intended violation of the statute, never consummated.

The iniquity is in thought, not in deed. It is said, however, that, taking the transaction as a whole, it is tainted with fraud and therefore void, and this view is sought to be supported by the analogies of usury laws.

In Ohio, an usurious contract does not carry with it that deep moral stain that attached under the usury laws of England and some of the states. Here, such a contract is not void, and a recovery thereon, to the extent of the loan and legal interest, can be had. The theory on which this principle is founded, is that, to the extent of the usurious interest, there is a failure of consideration, and,' therefore, as to the usury the contract is voidable only. Selser v. Brock, 3 Ohio St. 302.

These bonds, if void at all, are so, not on the ground of any deep moral stain, arising from the contract for usury, but from a want of capacity in the board to make such a contract. They are illegal, if at all, because unauthorized by statute, i. e., because the board had no power to make such a contract.

As was said in Bank of Chillicothe v. Swayne et al., 8 Ohio, 289 : “ The contract is void, not because the rate of interest is greater than the rate allowed by the general law of the land, but because it is such a contract as the plaintiffs had no capacity or power to make.”

These bonds are such as the board had capacity to issue. Upon their face they are in strict conformity to the statute. They were, in fact, sold at par, and the money has been received into the treasury and used for the purpose intended by the statute. The public has had the full benefit of the loan, and has not sustained, nor is it liable to sustain, any loss or injury by reason of this outside agreement to pay excessive interest. If this was an action on the bonds, unaffected by this statute, there could be no doubt of a reeovery for the full amount loaned, with the legal rate of interest then in force according to the construction placed upon our interest laws. Neither can there be any doubt that the contract to pay usury, evidenced'by the orders, would be void for want of consideration to support it.

As has been already said, if this excess of interest had been paid the statute would have been violated, but as the promise to pay excessive interest was purely executory, and the orders evidencing this promise are void, and are offered for cancellation, and no injury has happened or can happen to the public, no sound reason can be given why the corporation should not pay its just debt.

The negotiations for the loan, though in their inception an entirety, for the loan of a sum of money at fifteen per cent., yet, as consumated by the contract actually made, consisted of two distinct promises by the board, based upon a single consideration. The one, evidenced by the bonds in strict conformity with the statute; the other, evidenced by the orders covering the excess of interest. The board did not intend to make one contract, nor did it. In its attempt to exercise the powers conferred, the two agreements were made, both regular and valid on their face, but one clearly in excess of the powers granted.

This brings the case cleai’ly within the rule: “ That when a power, created by statute, has been fully executed, and something not authorized by the statute has been added, but which is clearly distinguishable from the rightful execution, the execution of the power is good, so far as authorized by the statute, and void only as to the excess,” i. e., at law. Comm’rs. of Knox Co. v. Nichols, 14 Ohio St. 260.

In such cases the general rule is, that “ where there is a complete execution of the authority, and something ex abundanti is added which is improper, then the execution is good and the excess only is void, but where there is not a complete execution of the power, or where the boundaries between the excess and the rightful execution are not distinguishable, then the whole is void.” Story on Agency, 166; Doty v. Knox County Bank, 16 Ohio St. 133; 2 Kent’s Com. 467.

In Widoe v. Webb, 20 Ohio. St. 435, it is said, that “ where for a legal consideration a party undertakes to do one or more acts, and some of them are unlawful, the contract is good for so much as is lawful and void for the residue. Whenever the unlawful part of the contract can be separated from the rest, it will be rejected and the remainder established.” Oare must be taken not to confound this rule with another equally well settled, that where one of two considerations is illegal, and the other legal, the illegality of the one avoids the promise founded on both.

In the former case there is one lawful and valuable consideration to support two promises, one legal, the other illegal, that are separable. In the latter case there are two considerations, one legal, the other illegal, to support one promise. The reason for this well-marked distinction is, that in the latter case, the promise being supported by two considerations, one lawful, the other unlawful, is an entirety based upon both, and can not be apportioned, and it is against public policy to enforce a promise so supported. In such a case both considerations, as a tohole, are the basis of the entire promise. Where, however, the whole consideration is lawful, and the promisor undertakes to do two things, one that is lawful, and the others unlawful, and they are clearly distinguishable, the good consideration will support the lawful promise.

The case at bar is one of two promises, one lawful, the other unlawful, founded on one lawful consideration. The unlawful promise evidenced by these orders is separate and distinct from the lawful. The former is void because prohibited by statute, while the latter is expressly authorized, and is supported by a valid consideration, to wit, the money loaned. It may be said that these rules do not apply to corporations, but we are unable to discover any reason why they should be exempt of such wholesome principles intended to compel natural persons to pay their just debts.

It is said further that this will open the door to frauds upon the statute and render it nugatory. Under the commercial law bonds like these, regular on their face, are not void but valid in the hands of bona fide holders, however much the statute may have been evaded. Against such holders the statute affords no protection.

As to the party dealing with the board, we all agree, that.if he, either directly or indirectly, purchase the bonds at less than par, or receives interest in excess of the lawful rate, he can not recover because the illegal contract has been in part executed. But where, as in this case, the plaintiff has been guilty of no illegal act, for the statute does not make it an offense to contract for excess of interest, and the public has in no way sustained any loss or injury, a majority of the court is unable to see the force of the objection. Human tribunals take cognizance of human actions that affect the rights of others. It is beyond their power to deal with intentions not consummated by actions.

That these relators, at one time, intended to take unlawful interest, which intention has been abandoned, furnishes no reason, either in morals or in law, why this school district should not pay its just debts, incurred for a lawful purpose, when it has received the benefit of the money borrowed.

The defendant resists the payment on the further ground, that the facts show that the board of education, or at least some of its members, were guilty of fraudulent practices, whereby this debt was incurred, for the payment of which this money was borrowed, and it is sought to charge re: lators with this, not because they had any knowledge of these practices, but because they bargained for illegal interest, and therefore they are chargeable with the fraudulent acts of the members of the board, of which they were wholly innocent. It was no part of their duty to investigate the circumstances under which that debt was created— to constitute themselves an investigating committee for that, purpose. They had the right to assume that the officers-of the corporation had performed their lawful duties. IN either were they charged with the duty of seeing that the-money was properly expended. The debts had been incurred. This money was borrowed to pay that debt. The-conspiracy, if there was one among the members of the board, to unlawfully make money for themselves, was-wholly a distinct transaction from that of selling these-bonds.

Hence, if it be conceded that they were parties to the attempted fraud on the statute, in the contract for unlawful interest, they did not thereby adopt all prior acts of the-board of directors in letting contracts and incurring the debts, of which they had no knowledge, and which were-entirely independent and distinct from the illegal act with which they are charged.

As well might it be said, that where A joins with B to commit larceny, he thereby adopts and makes himself a party to a previous act of B in the commission of homicide. The true application of the rule is, that where two- or more form a conspiracy to do an unlawful act, and before it has been committed another joins them in doing the-act, it is no defense for him, that the plan was formed before he became a party to the conspiracy.

Peremptory writ awarded.

Okey, J.

Differing widely from my brethren, as to the merits and proper disposition of this case, I beg leave to briefly state the grounds of that difference.

The relators are, under the circumstances, chargeable with notice of the fradulent acts of the -board which issued and negotiated the bonds ; and the present board can not-be regarded as in other than the proper discharge of its duty, in interposing a defense to the allowance of the-peremptory writ. But even if the hoard were not chargeable with such notice, the writ should not be awarded.

In their petition, which is incorporated in the alternative writ, the relators do not claim to have loaned money, but say “ they purchased all of said bonds, . . . and that they are still the owners and holders of them.” This seems to have been the real transaction, though whether it was a loan or a purchase is, perhaps, not material.

Dealing directly with the corporation, the relators were chargeable with notice of the extent of its powers. They knew that the corpoi’ation was, in terms, prohibited by the .statute from selling the bonds “ for a less sum than their par value; ” and, consequently, that a sale of the bonds, for less than such par value, would vest in the purchasers no "title. The question is one of corporate power.

'Was this a sale for less than par value? The question should be determined, not by the mere form the contract was made to assume, but from.the real nature of the transaction. Upon this subject there is no conflict in the authorities. Any other rule would lead to constant evasion of the statutes.

The relators never intended to pay, never agreed to pay, never paid $7,200 for the bonds to that amount. The orders were as clearly part of the consideration for the $7,200 as were the bonds. The money was given for the bonds and the orders. The device resorted to was a mere fraud on the statute, and was so intended.

In the opinion of the majority the transaction may be regarded, substantially, as two contracts — one valid, and the other void. But the integral unit can not be divided into whole numbers. The contract is single, entire, indivisible; .and, having been made with a corporation, in violation of the express terms of the statute forbiddiug it, such contract is necessarily void.. Miami Ex. Co. v. Clark, 13 Ohio, 1; Widoe v. Webb, 20 Ohio St. 435 ; ante, 341, and cases cited. The repentance, the offer to restore the orders, can not render a void contract valid.

A contract like this, if we should regard it as a loan of •money, would not be enforced as the court enforces this contract, even between individuals. Where a statute authorizes a higher rate of interest than six per cent., which is the rate allowed by the general act on the subject, -an agreement, in any form, for interest in excess of such higher rate, will, as between individuals, render the contract void, and the lender may recover his debt with six percent, interest only. Claypool v. Sturges, 10 Ohio St. 440; Bunn v. Kinney, Samyn v. Phillips, 15 Ohio St. 40, 218; West v. Meddock, 16 Ohio St. 817.

The majority of the court, in awarding the writ, seem to be of opinion that it is not only lawful, but just and proper, that Perrysburg should be compelled to pay these bonds. I humbly submit that to award the writ is to make for the parties a contract which neither of them ever made ■or intended to make. Moreover, Perrysburg has been defrauded, in building and paying for the school-house in ■question, in sums, amounting in the aggregate, to several thousand dollars; and, under the circumstances set forth in the record, the relators are, as already .stated, chargeable with knowledge of the fraud. The contract should, therefore, be regarded as fraudulent as well as unlawful. The court has the power, of course, to compel the payment ■of this additional sum; but with respect to the transaction out of which the obligation arises — there is no alchemy by which a thing so base can be transmuted into that which is pure.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    The Atlantic and Great Western Railroad Company v. Josiah Robbins et al.
    3. The owner of land which has been unlawfully and wrongfully taken and appropriated to its use by a corporation authorized by law to appropriate land, can not maintain an action for the value of the land so taken and appropriated, and also damages accruing by reason of such taking and appropriation, if the circumstances are such that he may recover the land itself.

      2. In such case the owner may recover compensation and damages, by spe. cial proceedings, under section 21 (69 Ohio L. 88, 95; Rev. Stat. 6448-6450), or the land itself, as in other cases of unlawful entry.
    Error to the District Court of Trumbull county.
    September 20, 1873, Josiah Robbins commenced an action against the plaintiff in error, a railroad corporation, in possession of and operating the Cleveland and Mahoning Railroad, to recover compensation for the value of land unlawfully appropriated, and damages for the incidental injury to the residue of the parcel.
    He alleged ownership in fee of a long narrow strip of land, extending from the north bank of the Mahoning river northward to the south line of the Cleveland and Ma-honing railroad track and depot grounds, in the village of Niles, Trumbull county, and that the plaintiff in error unlawfully entered upon said strip of land adjacent to its-track and depot grounds, and between that and Walnut street in said village, which crossed said strip between said track and the river, and has converted the same to its own-use unlawfully, by laying down about one thousand feet of track, and using the same as an appurtenance or adjunct to its road and depot grounds.
    The prayer is for compensation for the ground so used, and damages to the residue of the strip not taken; or‘if that relief can not be granted, then for a recovery of the-land so used, and for damages for its detention.
    November 17, 1873, the defendant answered, denying plaintiff’s title and right to possession, and setting up title and right to the possession by conveyance from plaintiff through several parties to itself.
    At the June term, 1874, the death of Josiah Robbins was-suggested, and his administrators were made parties-plaintiff.
    At the November term, 1874, upon a trial by jury, a verdict and judgment was had in favor of the administrators for $3,059.70.
    At the same term this judgment was, upon defendant’s motion, set aside, and leave granted the plaintiffs to amend •the petition and make new parties.
    January 16, 1874, an amended and supplemental petition was filed in the name of the administrators and the heirs •of said Josiah Robbins. The averments of the original petition are affirmed, and it is further stated that the de fendant is an insolvent railroad corporation, and that .although that part of said strip of land north of "Walnut street has been made an adjunct of the railroad, yet it can be separated from defendant’s track and depot grounds without injury to its property ; also, that while defendant originally entered by permission to occupy for a temporary purpose, and with the understanding that nothing should be changed, yet said conversion, by laying tracks, and use, was fraudulent and with the known dissent of the said Robbins.
    The prayer was also amended so as to ask for a recovery ■of the full value of the land, with interest thereon and damages for the fraudulent taking, and that the same be de■dared a lien on the premises; and if they can not so charge the land, then that they recover the land itself and other proper relief:
    No answer was filed to this amended petition.
    February 3, 1874, and, as plaintiff in error claims, before rule day for answer expired, and in its absence, a trial was had, resulting in a verdict for plaintiffs for $3,438.42 ■damages.
    February 8, and before judgment, defendant moved for a now trial, which motion was heard March 8 and overruled, to which exception was taken.
    On the same day, on application of the plaintiffs, and without, other evidence than that heard by the jury, the court found specially and entered upon its journal as follows :
    “ And as to the further motion for relief herein claimed, the court, at the request of plaintiff’s counsel, find the further facts to be that the lands in question are a parcel of land truly described in the petition in this case; that the same are not connected with or adjacent to the other lands nor to or with the railroad of defendants, nor its appurtenances, except at the end of the same where it connects with the depot grounds of defendant, and that the same is not necessary to the full use of the residue of said railroad and' its appurtenances, nor except as one additional sidetrack thereof, and that the same was converted and appropriated by defendant as an appurtenance of its railroad while the same was in defendant’s temporary possession for only a temporary purpose hy agreement with said Josiah Robbins, now deceased, and without his knowledge; the-above facts were found by the court from evidence given on the trial before the jury, and no evidence except that given before the jury was given to the court, and the plaintiff'' demanding judgment on said verdict and also.the further-relief demanded in said petition, the court are of opinion that, as matter of law, the plaintiffs are entitled to a judgment for the recovery of the sum found by the verdict of' the jury as aforesaid; but the court hold as a matter of law that upon said facts the plaiutiffs are not eutitled to the-further relief sought in the petition, and as to the said further matters said petition is dismissed, to which plaintiffs except, and then it i.s hereupon considered and adjudged by the court that the plaintiffs recover of the defendant the said sum of $3,438.42 and their costs taxed.”
    To reverse this judgment, denying the equitable relief,, the plaintiffs below prosecuted error to the district court, and at the April term, 1876, obtained a reversal of that part of the judgment, and also a judgment, charging the-amount recovered, upon the land, with an order of sale upon default of payment by a day named.
    To reverse this judgment of the district court is the-object of the present petition in error.
    Some of the errors assigned go to the validity of the verdict and judgment at law, in the common pleas. Some to the validity of the judgment of the district court.
    Among the latter, it is alleged, that the district court erred in holding that said judgment at law,-in the common pleas, was a valid judgment on which to found its judgment for equitable relief, and that the court of common, pibas erred in rendering the money judgment for the plaintiff' below.
    The defendants in error, after the usual joinder in error, plead specially in bar, that after the rendition of said judgment at law, in the common pleas, the present plaintiff prosecuted error to the district court to reverse said judgment, and that such proceedings were had thereon that at the April term, 1876, said judgment was affirmed, which affirmance is still in full force. To this there is no' reply.
    It thus appears that both parties prosecuted proceedings-in error, independently of each other, to reverse, in part, the judgment of the common pleas. The plaintiffs below to reverse so much as denied them equitable relief, and the defendant below to reverse the judgment at law. In the former case the judgment, denying equitable relief, was reversed, and such relief granted; and, at the same term of the court, in the latter case, the judgment at'law was affirmed.
    Additional facts are found in the record and relied on, but in the opinion of the court it is unnecessary to state them.

      S. Burke, for plaintiff in error:
    By this proceeding, the plaintiffs sought to recover compensation for the value of the real estate actually appropriated by the railroad company for railroad purposes, and damages in consequence of the appropriation thereof, sustained by his other property in the vicinity. Eor such an alleged wrong such an action will not lie. See Little Miami Railroad Co. v. Whitacre et. al., 8 Ohio St. 590.
    By the act of the legislature of 1872, (69 Ohio Laws, 88) a remedy is given to the owner by proceedings under that statute in the probate court; and, inasmuch as the legislature has provided specially for the assessment of damages in such cases, the remedy thus prescribed must be followed. See Pierce on American Railroad Law, 224; 18 Ohio, 232.

      George M. Tuttle, for defendant in error:
    The first objection made in the argument is, that the action did not lie, because a special remedy for such an injury had been provided by the act of 1872.
    The statute referred to did not confer the right, nor first .give a remedy. No such statute takes away the old remedy. Comyn, Dig. Action upon Statute, C.; Aling v. Harris, 5 Johns. 175.
    Besides the' statute referred to expressly reserves the old remedy. 69 O. L. 95, § 21.
   Johnson, J.

¥e pass, without special notice, several novel phases of this case — such as the joinder of the personal and legal representatives of Josiah Robbins in this action ; the prayer for full compensation for the land appropriated, and damages for its fraudulent conversion, joined with a prayer for equitable relief; the special finding of facts touching the equitable relief, not upon evidence submitted to the court, but upon that addressed to the jury, a month before, upon the issue as to damages ; and the prosecution of two independent proceedings in error at the same term of the district court.

Upon these questions no opinion is expressed.

It appears from the record, that the administrators, and the heirs, as plaintiffs, have recovered a judgment in money, as compensation for land adjoining defendant’s railroad track and depot grounds, because it has unlawfully and fraudulently converted the same to its own use, contrary to the wishes of said Robbins, while in possession by his consent for a temporary purpose only.

It further appears, that the parcel of land so appropriated may be separated from the railroad track and grounds, without injury to the railroad. It does not appear that either the plaintiffs, or said Josiah Robbins are, in any way, «stopped or barred of their rights to recover the land itselfj as in other cases of unlawful entry upon lands.

The question presented by these facts, is, was there a valid judgment for money, upon which to base the equitable relief afforded by the district court? That court assumed there was, and made that judgment a charge upon, the land.

The whole record was before that court, and if, upon its face, there was no such judgment upon which to found the prayer for equitable relief, then that court erred, in making such judgment a charge upon the land. Potter v. Meyers, 31 Ohio St. 103-106.

The validity of the judgment at law, was an essential prerequisite to the decree of the district court, making it a ■charge upon the land, and granting an order of sale to pay the same.

Eor this reason the matters set up in the special answer ■of defendant in error are not a bar to this inquiry. Although, in form, there were two independent proceedings in error, there was, in fact, but one case and one record. The special answer, which it is admitted states the facts, shows that both parties were, at the same time, before the district court, upon errors assigned by each to the same record. In this court it is specifically assigned as error, that the district court erred in affirming the judgment of -the common pleas. This brings the whole case before us as fully as if there had been but one petition in error in the .district court, and cross-errors assigned.

Recurring, then, to the question stated, let us inquire into the nature of this case.

It differs materially from the case of D., X. & B. R. R. Co. et. al. v. Lewton, 20 Ohio St. 401, relied on by the defendant in error.

That was the case of an entry and appropriation of land, by the corporation under a contract, to pay a sum of money at .a future day, and to construct crossings and cattle-guards on vendor’s land; and it was held that he was entitled to an equitable lien on the land sold, as well for the damages for not constructing the road as agreed, as for the unpaid purchase-money.

Neither is it governed by the principle controlling in Goodin v. The-Cin. & W. C. Co., 18 Ohio St. 169, where it was held that one who stands by, without objection, and sees a .public railroad constructed over his «land, can not, after it is completed, or a large expenditure made on the faith of his apparent acquiescence, reclaim the laud, or enjoin its use by the railroad company.

In such a case there only remains to the owner a right of compensation. This rests upon the ground of estoppel in favor of stockholders and creditors. As he did not speak when he should, he will, not be allowed to speak when he would. This case rests upon its own peculiar facts, and is not to be extended, by other cases, when an estoppel is not clearly established.

The case at bar differs from both these cases. This is the case of an unlawful and unauthorized use, and a fraudulent appropriation, against the objection of the owner, and is not under a contract of sale, or by acquiescence or other acts, upon the faith of which expenditures have been made. In short, it is an action for the trover and conversion of real estate.

It must also be kept in mind that, although the heirs of Robbins are united as plaintiffs with the administrators, they are only nominally such, and there is nothing in the record that would estop them from bringing an action of ejectment to recover the land itself, even though the judgment be paid to the administrators.

That Robbins himself was not so estopped is clear, as he took pains to show in his petition, by asking for a recovery of the land in the event he was not entitled to compensation or damages. His heirs have done nothing since to estop them. Neither he, nor they, offer to convey or surrender the title, upon being paid, and neither has done any act, so far as the record shows, that would estop him, or them, from asserting the title to this land.

The 21st section of the act of 1872 (69 O. L. 95), provides a statutory remedy, unknown to the common law, for cases like this. By it, the owner of land, taken and used by a corporation, authorized to condemn land without being appropriated and paid for, and without any agreement in writing with such owner, or any legal or equitable right thereto, may, by special proceedings, have the value of such land, ascertained by a jury, and a judgment for the purchase-money, to be collected by execution.

By this proceeding the judgment js not made a lien or charge upon the land. If not collectible on execution, and not paid in sixty days, the court may enjoin the use of the land until it is paid.

When paid, or satisfied, the title passes, by operation of the statute, section 10, to the corporation.

Until paid, the title and estate remain in the heirs. This is a special remedy in cases of unauthorized entry and appropriation, but it is not exclusive of that at common law, as in all cases of unlawful entry and possession of lands.

The present action was originally one at law. By amendment, equitable relief was also demanded. Such an action, either at law or in equity, in case of an unlawful entry, or wrongful detention of lands, is unknown at common law or in equity. This judgment does not bar an action by the heirs. Even its payment does not operate to transfer the title, as in the case under proceedings authorized by the above statutes. Such payment to the administrators would not estop these heirs. The title is still in them.

Counsel cite part of section 1219, Story Equity Jurisprudence : “ That a person who has gotten the estate of another ought not in conscience to keep it and not to pay full consideration money.”

The whole section, if quoted, would have shown that it relates to the implied trust, arising in case of a vendor’s lienT and not to a case of wrongful and unlawful appropriation, when the estate still remains in the owners.

The whole paragraph reads: “ The principle upon which courts of equity have proceeded in establishing this lien, in the nature of a trust, is, that a person who has gotten the estate of another, ought not, in conscience, as between them, be allowed to keep it, and not pay the full consideration money.” It has no relation to a case like the one before us.

Our conclusion therefore is, -that the unlawful and wrongful conversion and use of land, against the will of the owner, and under such circumstances that he is not prevented or estopped from recovering possession, will not entitle such owner, while the title still remains in him, to maintain an action to recover a judgment for the value of the land, and to an order of sale of the same to pay the judgment; aud that, in such case, the owner has his election, to proceed under the 21st section of the act of 1872 (69 O. L. 95), to recover the compensation and damages to which he is entitled to under the constitution, or by action for the unlawful entry and possession, to recover the possession and damages for use and occupation.

Whether the owner might, under such circustances, tender a title to the corporation, and maintain an action for the value, and charge it upon the land, in case of an insolvent corporation, when the land had been so changed by the corporation as to destroy its value to the owner, we need not here determine. This might depend on equitable ■considerations not involved in the present case.

The judgments of the court of common pleas and the ■district court are reversed and cause remanded for further proceedings according to law.


author: "White, J.

text:
    The Pennsylvania Company v. Miller & Co.
    1. Where a verdict for the plaintiff may have been rendered upon either of two causes of action, but it does not appear upon which, a refusal to-give a proper instruction on behalf of tbe defendant, as to either cause of action, will entitle him to a new trial.
    2. The implied undertaking of a carrier to insure the safety of baggage, does not extend to the contents of a trunk, consisting of samples of merchandise, which the passenger, a traveling salesman, carries to facilitate his business in making sales. But the carrier, by taking the property into his charge and putting it in his warehouse for safe keeping, assumes the relation to it of an ordinary bailee, and he is bound to take-such care of the property as a man of ordinary prudence would of his own, under like circumstances.
    Error to the District Court of Hardin county.
    The original action was brought by the defendants in error to recover damages for the loss of a valise and samples of merchandise therein. The plaintiffs’ agent was a traveling salesman, selling by samples. Ho bought a ticket at Bucyrus, Ohio, to go to Eorest, Ohio, on the 8th day of November, 1871. He put his valise into the possession of the servants of the defendant, and took a check for the-same, to be carried to Eorest, nothing being said as to what it contained. The agent in due time was landed at Forest,, and with the valise. It being about nine o’clock at night, the plaintiffs’ agent did not call for the valise until next morning. In the meantime the agent of defendant had placed the valise in the warehouse of the company. The plaintiffs’ agent called in the morning for the valise and it could not be found. The warehouse, it was alleged, had been broken open by burglars during the night, and the valise stolen. It is alleged by the plaintiff, that the warehouse was insecure, and not a safe or suitable-place to store property in. The value of the valise and the-samples of merchandise is alleged to have been one hundred and eighty dollars.

      As a second cause of action, the petition set up an agreement entered into between the parties for the settlement ■of the matter in controversy, whereby, it was alleged, plaintiff' in error promised to pay the defendants in error "the value of the valise together with its contents, and that the latter assented to and accepted said promise as an adjustment of his demand.
    The making of the agreement was denied by the answer.
    Evidence was given tending to prove a promise of the character alleged in the answer, by a person assuming to represent the railroad company; but there was no evidence ■of the company having authorized the making of the agreement.
    As to the second cause of action, the defendant below (the plaintiff in error) asked the court to charge the jury, in substance, that there being no testimony in the case to •show that the person who said he would pay the plaintiffs’ claim for the lost valise, had authority to make any contract for the defendant, or to bind the defendant by any promise he made, the jury should find for the defendant ■on the second cause of action.
    This instruction was refused; and the court gave the jury no instruction on the subject of the alleged agreement or promise in the second cause of action stated.
    A verdict was rendered for the plaintiffs for the value of the valise and contents; but it does not appear upon which ■of the causes of action stated in the petition the verdict . was founded.
    The court, in its general charge, after stating that the valise had been carried safely to Forest, and had there been taken charge of by the agent of the defendant, and placed in the company’s warehouse, charged the jury in respect to the liability thereafter as follows :
    “ The only question is as to the liability of the defendant .after the goods were landed at Forest, and that question will be whether defendant took such care of the property as the law would require it to do. "When a railroad -company takes baggage for a passenger its .liability is of the highest sort. It agrees to carry the baggage safely, and insures (as seems to be admitted) against all sorts of risks, except the acts of God or the public enemy. But when the baggage is landed, it is the duty of the owner to call immediately, or as soon as the throng and hurry incident to the arrival and departure of the train has subsided, and get his property. But if he fails to thus call, and the agent of the railroad company takes charge of it, then responsibility will be changed. It will be the responsibility of a warehouseman instead of that of a common carrier. The liability will be to take such care of the -property as an ordinarily prudent man would of his ownvproperty under the like circumstances. You will therefore look at all the circumstances of this case, and see whether the railroad company’s agents did in this case take such care as a prudent man would under like conditions and surroundings. .
    All the defendant is required to do is to take ordinary care under the circumstances, such as men usually exercise in their own concerns. The defendant is not liable for theft of the goods unless it is the result of the want of proper care.”
    After verdict a motion was made for a new trial, which was overruled, and a bill of exceptions taken embodying the evidence, as well as the refusal to charge as requested, and the charge as given.
    Judgment was rendered on the verdict. This judgment was, on error, affirmed by the district court. The present proceeding in error is prosecuted to reverse these judgments.
    J. T. Brooks, for plaintiff in error:
    The petition presents a compound action of contract and tort, but the contract theory is completely upset by what is averred on as the tort side of the case, and sufficient facts on the tort side are not stated to entitle plaintiffs to a recovery. The proof is as defective as the petition.
    The valise was not transported under any contract, either express or implied, with the plaintiffs. Whatever contract existed . was between the defendant and the passenger:. "While the petition avers a contract between plaintiffs and defendant, it also shows that the valise and contents were plaintiffs’ property in charge of their traveling salesman; while it avers that defendant was in the habit of carrying traveling salesmen and samples of merchandise, it does not aver that it carried them knowingly as such, or knowiugly and without extra compensation. The proof on this branch of the case is to some extent uncertain, but it is not shown, that defendant knowingly carried samples of merchandise , as baggage, without extra pay. The evidence shows that the valise in question was “ an ordinary-sized valise.” “ Traveling agents carry samples of merchandise in all sorts of valises and trunks.” There is nothing about a traveling agent to distinguish him from other persons. My trunk was of a peculiar shape. Some have one kind of trunk, some another.”
    The defendant would not be bound by the knowledge or conduct of one or even two of its agents, in respect to sample cases which they may have permitted to pass as baggage ; and there was, therefore, no competent proof from which the jury could find that defendant at the time in question carried samples of merchandise, as personal baggage, or without extra compensation. Without this proof, the verdict can not stand. For, assuredly, there was no express contract between plaintiffs and defendant. In the absence of proof of a custom on the part of defendant of carrying merchandise as personal baggage, knowing it to be such, no implied contract to carry the valise safely can be inferred; and if there was neither contract nor custom, there was no higher duty of the defendant toward the plaintiffs, in the disposition of the valise after it reached Forest, than that which attaches to a bailee without hire. Michigan Central R. R. Co. v. Carrow, 73 Ill. 358.
    The carrier’s liability, in respect to baggage, rests upon very plain principles, which are universally recognized. The carrier is not required to make a pecuniary sacrifice for the pecuniary advantage of another. It is to be paid for the service it performs, and is to be compensated in proportion to the risk it is compelled to incur. It can not be forced to bear a great risk for small pay, or for none. Being a carrier of passengers as well as of freight, it furnishes trains, employes, and accommodations in reference to its responsibility for each.
    The articles which the traveler is thus allowed to have carried as baggage are solely such as are necessary to his personal wants, convenience, or comfort in the particular journey he is making. He is not entitled to have carried as personal baggage money, more than is necessary for the particular journey, nor jewelry, nor household articles, nor clothing of his family or friends, nor merchandise, nor samples of merchandise. He is not entitled to have the latter kind of articles carried as personal baggage, although they may pertain or have exclusive reference to the journey he is taking. As a necessary incident to the rule here stated, the passenger who conceals in his baggage articles not essential to his personal wants, convenience, or pleasure, or articles not belonging to himself, commits a fraud upon the carrier, and creates no liability whatever upon the carrier in respect to those articles, unless the carrier’s duly authorized agent is advised and accepts the articles, and offers to carry them as baggage.
    The following cases will be found to support the views herein expressed:. Macroy v. Railroad Co., 6 Q. B. 612; Railroad Co. v. Shepperd, 8 Exchequer, 30: Cahill v. Railroad Co., 13 C. B. 818; Phelps v. Railroad Co., 19 C. B. 321; Wilson v. Railroad Co., 56 Me. 60; 9 Wend. 85; Pardee v. Drew, 25 Wend. 458; Hawkins v. Hoffman, 6 Hill, 586 ; Stoneman v. Railroad Co., 52 N. Y. 429; Perley v. Railroad Co., 65 N. Y. 374; Stornan v. Railroad Co., 67 N. Y. 208; Weeks v. Railroad Co., 72 N. Y. 50; Jordan v. Railroad Co., 5 Cush. 69; Collins v. Railroad Co., 10 Cush. 506; Stimpson v. Railroad Co., 98 Mass. 83; 98 Mass. 371; Railroad Co. v. Shea, 66 Ill. 471; Railroad Co. v. Carrow, 73 Ill. 348.
    See also in this connection, First National Bank of Greenfield v. Marietta and Cincinnati R. R. Co., 20 Ohio St. 278-9; 2 Redfield on Railways, § 172 et. seq.; Swan’s Treatise, ed. of 1875, 174; Wharton on Negligence, §§ 606, 607; Story on Bailments, ed. of 1870, § 499 et. seq.
    I claim, therefore, first, that as there was no liability, as carrier, for this valise filled with merchandise, there was no liability after its arrival at destination, unless the defendant was guilty of gross negligence, and of this I shall speak hereafter. Second, that if defendant was liable at first as carrier, that liability ended when a reasonable time had elapsed after the valise reached Forest; and that that reasonable time expired as soon as the train which carried the passenger to Forest had left, and the hurry and bustle incident to its arrival and departure were over.
    It was the duty of the passenger to have called and taken his valise the night he arrived at Forest. 45 N. Y. 184; 8 Bush, 184; Roth v. Buffalo and State-Line R. R. Co., 34 N. Y. 548; Angell on Carriers, § 114; Pierce on Railways, 499; Ouimit v. Henshaw, 35 Vt. 605; Minor v. Chicago and Northwestern R. R. Co., 19 Wis. 40; Wharton on Negligence, §§ 609-610 ; Story on Bailments, §§ 446, 448-9, 595; 56 Barb. 191; 73 Ill. 510 ; 27 Iowa, 22.

      Wm. Lawrence and Joseph H. Lawrence, for defendants in error:
    I. When the baggage of a railroad passenger is unclaimed at its destination, it is the duty of the railroad company, as •a common, carrier, to store it in a proper and secure place until called for, and when so stored the carrier becomes liable therefor as a warehouseman, charged with the duty to take ordinary and reasonable care of it. Bartholomew v. St. Louis R. R., 53 Ills. 227; s. c., 5 American Rep. 45; Mote v. Chicago & N. W. R. R. Co., 27 Iowa, 22; s. c., 1 American Rep. 212; Ouimit v. Henshaw, 35 Vermont, 605; Roth v. B. & S. L. R. R. Co., 34 N. Y. 348; Powell v. Meyers, 26 Wend. 591; Frances v. Dubuque & S. C. R. R., 25 Iowa, 60 ; Vanhorn v. Kermit, 4 E. D. Smith, 453 ; Merrill v. Grinnell, 30 New York, 594; Burnell v. N. Y. Central R. R., 45 New York, 184; s. c., 6 American Rep. 61; Rock

      Island and Pacific R. R. v. Fairclough, 52 Illinois, 106; 26 Wend.; 36 N. H. 31; 46 Barb. 103; 49 Idem, 148; 50 Idem., 193; 19 Wend. 251, 234; 29 Barb. 35; 32 N. H. 523; 18 Wis. 345; 1 Daly, 197; 21 Wend. 354; Redfield on Carriers, §§ 72, 73, 212, 214; Story on Bailments (8th ed.), § 444; 2 Redfield on Railways, 44, § 171.
    II. The same rule applies to samples of merchandise carried as baggage by traveling salesmen for the purpose of making sales. Cincinnati and Chicago R. R. v. Marcus, 38 Illinois, 219; Mich. S. & N. Ind. R. R. Co. v. Oehm, 56 Ills. 293; Camdem and Amboy R. R. v. Baldauf, 16 Pa. St. (4 Harris,) 67; 2 Redfield’s American Railway Cases, 267; 2 Smith and Bates’ American Railway Cases, 357; Minter v. Pacific R. R. Co., 41 Missouri, 503; Butler v. Hudson River R. R. Co., 3 E. D. Smith, N. Y. 571; Hannibal R. R. Co. v. Swift, 12 Wallace, 262; Bartholomew v. St. Louis R. R., 53 Ills. 27; Dexter v. Syracuse, Binghampton and New York R. R. Co., 42 New York, 326; Phillips v. Earl, 8 Peck, 182; 4 Bing. 218; Relf v. Ramp, 3 W. and Serg. 21.
    As the railroad company accepted the valise and samples in this case without inquiry, there was an implied contract to carry them as insurer of baggage proper. Burnell v. N. Y. Central R. R. Co., 45 N. Y. 184; Collins v. Boston and Me. R. R. Co., 10 Cushing (Mass.) 506; Miss. Cen. R. v. Kennedy, 41 Miss. 671; Stimpson v. Conn. River R., 98 Mass. 83; 2 Redfield Railways, § 175, 56 u.
    The custom of the railroad company to carry samples as baggage for traveling salesman charges it with a liability for the loss. McMaster v. Pa. R. R. Co., 69 Pa. St. 374; s. c., 2 Redfield’s American R. R. Cases, 61; 8 American Law Register, (old series) 534-8.
    The law now is, by universal custom, that railroad companies carry “ samples ” as baggage, and are liable therefor as warrantors. This supports the verdict, but it can be supported without going so far. A large part of the passenger business of railroad companies consists in carrying traveling salesmen and samples. Statistics show many thousand persons so engaged — railroad companies can not fail to know this. It is to their interest to encourage and invite such travel; every commercial and manufacturing enterprise of the country is interested in it; public policy will not allow these to be crippled by limiting the liability of carriers.
    III. There is no error in the'refusal to instruct the jury.
    1. the charge, asked by the railroad company, consists of a series of connected propositions, some of which are clearly not law, and it is not error to refuse such a charge.
    This appears from the words of the refusal — “ which instructions (as a whole,) the court refused to give.” Inglebright v. Hammond, 19 Ohio, 337; French v. Millard,, 2 Ohio St. 44; Walker v. Devlin, 2 Ohio St. 593; Eckels v. State, 20 Ohio St. 515; Serviss v. Stockstill, 30 Ohio St. 418; Insurance Co. v. Tobin, 32 Ohio St. 77.
    2. The whole charge was preceded by a statement of facts which the court was asked to assume. It is not error to refuse such charge, even if such facts were clearly proved. Bellefontaine Railway Co. v. Snyder, 24 Ohio St. 670.
    3. There is no error in refusing to charge the several specific propositions. M. & C. R. R. Co. v. Picksley, 24 Ohio St. 654; C. C. & C. R. R. Co. v. Crawford, 24 Ohio St. 631; Hogg v. Zanesville C. & M. Co., 5 Ohio, 418 ; Grant v. Ludlow, 8 Ohio St. 1; Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172; C. H. & D. R. R. Co. v. Waterson, 4 Ohio St. 424; C. C. & C. R. R. Co. v. Elliott, 4 Ohio St. 474; Burnell v. N. Y. Central R. R., 45 N. Y. 184; Platt v. Hibbard, 7 Con. 497; Schiveren v. McRie, 5 Rob. 404; Bartholomew v. St. Louis R. R., 53 Ill. 227; Camden & Amboy R. R. v. Baldauf, 16 Pa. St. 67.
   "White, J.

The court erred in refusing to instruct the jury, as requested, as to the agreement set up in the second cause of action stated in the petition. The verdict was for the plaintiffs, without specifying upon which cause of action it was founded. It may have been founded upon the agreement stated in the second cause of action; and if it was, the defendant was clearly prejudiced by the failure of the court to give the instruction. The defendant was entitled to have the jury instructed that it was not bound by the agreement, there being no evidence to show that the making of the agreement was authorized by the defendant.

The valise in question having been safely carried to its place of destination, and there received by the agent of the carrier and placed in its warehouse, the question, arising on the charge is, whether the rule laid down by the court for the guidance of the jury, prescribes a higher standard of care than the law requires. It is claimed, on behalf of the carrier, that it does; and that, if the carrier can be held liable at all, it can only be for gross negligence.

As was said in Griffith v. Zipperwick, 28 Ohio St. 388, “ the term gross negligence is scarcely susceptible of legal definition ; but there is a degree of care (indefinitely varied by the nature of the deposit and the circumstances of the case), which the depositor has a right to expect from the depositary, the want of which is so designated, and will render the depositary liable if a loss results therefrom.”

Accordingly, it was held in that case that good faith requires, generally, that a bailee, who is ouly liable for gross negligence, should keep the goods intrusted to him with as much care as he ordinarily keeps his own, of the same kind ; and that he should also keep them with such a degree of care as is reasonable, with reference to the nature of the goods, and the particular circumstances of the bailment.

In the present case the valise did not contain what was properly baggage. The contents consisted of samples of merchandise, which the agent of the plaintiffs carried with him to facilitate his business in making sales. The implied undertaking of the carrier, to insure the safe carriage of baggage, did not, therefore, extend to these goods. He was not, however, for this reason relieved of all responsibility in regard to the safe carriage aud keeping of the property. By voluntarily takiDg it into his charge, and finally putting it in his warehouse for safe keeping, ho assumed the relation to it of an ordinary bailee.-

The court told the jury that the duty, growing out of this relation, was to take such care of the property as an ordinarily prudent man would of his own property under like circumstances.

With the general rule thus stated we find no fault; and a less degree of care ought not, in our opinion, to be allowed.

There was a motion for a new trial on the ground that the verdict was against the evidence.

This motion ought to have been granted. We have examined the evidence in the case, and are clearly satisfied it does not warrant the verdict.

The judgment will, therefore, be reversed, as well for the refusal of the court to charge as above stated, as for refusing to set aside the verdict as being against the evidence.


author: Okey, J.

text:
    Scobey v. Gano.
    1. An administratrix of an estate in which a minor is interested, is, under the act of 1858 (1 S. & 0. 671, § 3), ineligible to be appointed guardian of the estate of such minor; and the minor having become a resident of another county, the probate court of that county has power to appoint another guardian, although no order vacating the former appointment has been made.

      2i In the settlement of a guardian’s account, he was credited with the payment of moneys for his ward, which in fact had not been paid, and the account was subsequently corrected, during the minority of the ward— Held, that in such case the liability of the surety in the guardian’s bond is not affected.
    Error to the District Court of Butler county.
    On June IB, 1874, William H. Scobey, guardian of Eliza Kinney, commenced an action in the Court of Common Pleas of Butler county, against John Cox, administrator of Abraham P. Cox, and Charles L. Cano.
    An answer by Cano and a reply thereto were filed, the administrator making default; and the cause having been submitted to the court of common pleas on the testimony, that court found in favor of the plaintiff, Seobey, and rendered judgment in his favor, as such guardian, for $1,591.72.
    A motion for a new trial having been (overruled, a bill of exceptions was allowed, containing all the evidence, and, on error prosecuted by Gano, the judgment was reversed by the district court.
    A petition in error was filed in this court, on leave,to reverse the judgment of reversal.
    The material facts are as follows : Horatio S. Kinney dying in 1861, Amanda, his widow, was appointed by the Probate Court of Butler county as his administratrix. In 1865, Abraham P. Cox was appointed, by the same court? guardian of the person and estate of Kinney’s daughter, Eliza, then five years of age. Charles L. Gano was surety in his bond as such guardian. Cox continued to act as guardian until his death, which occurred in October, 1872, but he filed no settlement account in the probate court. Soon after his death, John Cox was appointed as his administrator.
    Amanda Kinney having, with her daughter, Eliza, removed to Hamilton county, of which county they became residents, Amanda was, on November 6, 1872, appointed by the probate court of that county guardian of the person and estate of Eliza, and gave bond and received letters of guardianship.
    On November 21, 1872, Amanda, at the request of John Cox, attended at the Probate Court of Butler county, where he, as administrator, filed a settlement account of A. P. Cox as guardian of Eliza Kinney. Amanda, as guardian, then gave him a receipt for $1,356.58, and he received credit in the settlement for the payment to her of that sum in money. In fact, however, no money was paid, but instead thereof, John Cox, as administrator, gave to Amanda a due bill for the amount, payable to her as guardian of Eliza Kinney; but no part of the due bill was ever paid. She says that the due bill was not received in payment; and it is clear that she did not fully understand the nature of the transaction.
    On April 6, 1874, Amanda and Eliza had again become residents of Butler county. On that day, Eliza, then nearly sixteen years of age, and living with her mother, went to the probate court of that county, and made choice of William II. Scobey as her guardian, and he was accordingly appointed guardian of her person and estate.
    On April 17, 1874, Scobey and John Cox appeared in the Probate Court of Butler county and consented to a modification of the settlement account; and thereupon the court entered an order modifying the settlement, so as to show that, while the true amount due to Eliza Kinney from the estate of her former guardian, A. P. Cox, was $1,356.58, yet that no part of it had been paid; and that Amanda had no authority to receive the due bill. The due 'bill was then surrendered, and the court ordered John Cox, as such administrator, to pay into com-t, forthwith, the amount so found due, with interest from November 21, 1872.
    The order to pay the money into court not having been complied with, Scobey, as guardian, brought this suit against John Cox, administrator, and Charles L. Gano, on the bond of Cox, as guardian, with Gano as surety ; and, as already stated, the district court having reversed the judgment which Scobey obtained, he seeks in this proceeding to reverse the judgment of reversal.
    P. G. Conklin and J. G. McKemy, for plaintiff in error.

      Thomas Millikin, for C. L. Gano.
   Okey, J.

In support of Scobey’s claim that he was legally appointed, his counsel rely on the fact that Amanda, mother of Eliza Kinney, was, at the time of her appointment as guardian, the administratrix of the estate of Horatio S. Kinney, father of the child; and they cite the act of 1858 (55 Ohio L. 54, § 3; R: S. § 6256), which provides that, “No person who may have been, or shall be, an administrator on an estate, or executor of a last will and testament, shall be appointed guardian of the person and estate, or of the estate only, of any minor who shall be interested in the estate administered upon, or who shall be entitled to any interest under, or by virtue of, such last will and testament; but an executor or administrator may be appointed guardian of the person only of any minor.”

Clearly, as it seems to us, the facts show that Amanda’s appointment was within the prohibition of this statute, however it may be construed; but the question remains, whether such appointment can be regarded as void in a collateral proceeding. We fully recognize the rule stated in the well-considered case of Shroyer v. Richmond, 16 Ohio St. 455, as to the character of the jurisdiction of the probate courts and the verity which is imported by their records; but this does not conflict with another well established general rule, that the jurisdiction of a court is a matter into which inquiry may be made even in collateral proceedings, where the record contains no finding of facts expressly showing jurisdiction. Maxsom v. Sawyer, 12 Ohio, 195; Moore v. Starks, 1 Ohio St. 369; Buchanan v. Roy, 2 Ohio St. 252; Fowler v. Whiteman, 2 Ohio St. 270; Callen v. Ellison, 13 Ohio St. 446; Pennywit v. Foot, 27 Ohio St. 615; Spier v. Gorll, 33 Ohio St. 236; and see Thompson v. Whitman, 18 Wall. 457, as to cases where the record shows jurisdiction. But here there is no express finding as to the qualifications of Amanda, and the fact that she was administratrix of an estate in which Eliza Kinney was interested, was probably unknown to the Probate Court of Hamilton county.

We come, then, to the consideration of the question whether the Probate Court of Butler county could lawfully appoint Seobey guardian, no order having been made setting aside or rescinding the appointment of Amanda, mother of Eliza Kinney. In determining this question we fully recognize the general rule that where a guardian has been appointed by the proper authority, and is in the discharge of the duties of his trust, the appointment of another person to the same office is void. Griffith v. Frazier, 8 Cranch (U. S.) 9; Thomas v. Burrus, 23 Miss. 550; Copp v. Copp, 20 N. H. 284; Fay v. Hurd, 8 Pick. 528; Robinson v. Zollinger, 9 Watts, 169. But we do not think that principle applies in this case. Amanda, being the administratrix of- Horatio S. Kinney, was ineligible to be guardian of the estate of a minor who was interested in the estate of the decedent. She was merely a guardian de facto; but she had performed only one act as guardian, so far as the record discloses, when she voluntarily relinquished all claim to the office, surrendered to Scobey the due-bill which had been imposed upon her, and evidently desired Scobey’s appointment. Besides, no other court than the Probate Court of Butler county had jurisdiction on April 6, 1874, to appoint a guardian for Eliza Kinney, for she was then a resident of that county and subject to guardianship therein. True, as already stated, no formal resignation of Amanda, her mother, had been entered of record, nor had any order been made setting aside or rescinding her appointment ; but this did not interfere with the power of the probate court to appoint Scobey as guardian, under the circumstances of this case.

It is said, however, on behalf of Gano, the surety, that he was discharged by the final settlement in the Probate Court of Butler county, made November 21, 1872; and that he can not be affected by a Gbange in that settlement made without his knowledge. But the position can not be maintained. The correction of the account was made while Eliza Kinney was still a minor, and there was the consent of the administrator, who filed the account, and the present guardian. Moreover, it does not appear that Gano knew that any such settlement had been made, much less that he changed his condition in any way in consequence of or since such settlement. Goodin v. The State, 18 Ohio, 6, is readily distinguished in principle from this case. Eliza Kinney could file a petition to obtain such correction, “ at any time within two years after the said ward shall arrive at full age.” 1 S. & C. 677, §§ 31, 33; R. S. §§ 6289, 6291. But here it was no.t necessary to resort to that course. Whatever interest the surety had in the final settlement, he had none which could interfere with the power of the probate court to make the correction in question.'

Judgment of the district court reversed and that of the court of common pleas affirmed.


author: McIlvaine, C. J.

text:
    John Stites et al. v. Louisa Wiedner et al.
    1. The title of a purchaser at a judicial sale, as a general rule, can not be impeached, in equity, for errors or irregularities in the proceedings; but where a tract of land not in fact sold, and for which no consideration was paid or intended to be paid, is, by mistake, included in the report of sales, such mistake may be corrected, in equity, as against the pur- ’ chaser or his heirs even after confirmation and deed in pursuance thereof.'
    2. Parol evidence may be admitted to prove such mistake.
    Error to the District Court of Hamilton county.
    The original action was brought by plaintiffs in error against defendants in error, in ’ the Court of Common Pleas of Hamilton county, to quiet their title and possession to lot number two of a certain plat and subdivision of a tract of land known as the Turkey Bottom farm. At the hearing in the common pleas a decree was rendered in favor of the plaintiffs; but, on appeal to the district court, the petition of the plaintiffs was dismissed. A motion for a new trial was made and overruled, to which the plaintiffs excepted, whereupon a bill of exceptions was taken setting out all the testimony. It is now assigned for error that the finding of the district court was contrary to the evidence.
    The testimony very clearly establishes the following state of facts: Nathaniel W. Stites, being the owner in fee of lots numbers one and two in said subdivision — the last-named lot, number two, being subject to the life estate of one Ann "W. Thompson, executed a mortgage to one Perris upon.said lot number one, “containing 26.21 acres,” and also upon “ all his interest, present and prospective, in lot two of said plat and partition.” Lot two contained 29 acres and a fraction of an acre.
    Iu a proceeding to foreclose this mortgage (and two others upon lot number one) the premises were described in the petition as above set forth. A sale was decreed of “the premises in the petition described.” The order of sale issued to the sheriff* described the property as it was in the petition. Under this order an appraisement was returned, “ that the premises above described, upon actual view thereof, are of the value of $135 per acre.”
    In reporting the sale, the return was as follows: “Agreeably to the command of the within order, I have appraised and advertised the within described lot or parcel of land, . . . and sold to Prancis Portman the following described real estate (describing the same as in the petition), “ for the sum of $165 per acre. . . . Amount of sale, $4,324.65.” This amount was paid, and no more. Sale was confirmed and deed executed, describing the property as in the petition and order of sale. The defendants claim title to lot number two under this proceeding, as the heirs of the purchaser, Práncis Portman. The plaintiffs, the life estate of Thompson having terminated, entered into possession of lot two, and seek to be quited in their title as heirs of Stites, the mortgagor.
    On the trial in the district court, the plaintiffs proved, under objection by the defendants, that the appraisement of $135 per acre was of lot number one alone, and that the interest of Stites in lot number two was not considered by the appraisers, and also, that at the sale by the sheriff lot number one was offered for sale, without reference to the interest of Stites in lot number two, and was sold for $165.

      Harmon Harrell, for plaintiff in error:
    Equity may relieve against a mistake in a sheriff’s deed as well as any other. Crosby’s Heirs v. Wickliffe, 12 B. Mon. 202; Walford v. Phelps, 2 J. J. Marsh, 31.
    The actual proceedings of the sheriff may be shown by parol, to rebut the recitals of his deed. Lessee of Longworth v. U. S. Bank, 6 Ohio, 536.
    Error certainly will not lie against a sheriff’s deed, and it is that alone that we complain of; that alone passed the title. The only remedy is by a direct proceeding in equity to avoid or correct it, as the case may be.
    . We claim, in short, that if the sheriff, by inadvertence or mistake, included lot number two in his deed to Eortman, when it was not sold, that mistake entitles plaintiffs to relief in equity. If he included it intentionally, the act being void because without consideration or authority, plaintiffs are entitled to relief, because they are in possession, and the deed puts a cloud upon their title.
    Plaintiffs are seeking equity. Defendants are seeking to get something for nothing.

      Joseph MoDougal, for defendants in error.
   McIlvaine, C. J.

If the testimony, admitted by the court below, was properly before the court, there can be no doubt that the finding by the district court upon which the petition was dismissed was contrary to the evidence. The controlling question therefore is, was it competent to show by parol testimony that lot number two was not appraised or offered for sale in the proceeding to foreclose set forth in the record? But before looking into the parol proof, how does the record evidence stand? That the property was appraised and sold by the acre is clear. The successful bid was $165 per acre; the gross sum paid was $4,324.65 ; the number of acres in lot one was 26.21, which, multiplied by $165, give the exact product of $4,324.65. It' follows from this calculation that if lot two, separated from lot one by a street and containing 29.25 acres, was also sold, there was not any thing paid for it. That lot two was not appurtenant to lot one is clear, and that the value, of the niortgagor’s iiiterest therein was included in the appraised value of lot one, or in the bid of $165 per acre, for which lot one was sold, is not affirmed by any thing appearing in the record, and that it would have been irregular to have so included it, leads us fairly to the conclusion that neither the sheriff who sold, nor the purchaser under whom the defendants claim, could have intended or understood that lot two was embraced in the sale. Purther than this, the sheriff'reports that he had appraised and advertised “the within described lot or parcel of land” — “containing 26.21 acres.” True, he adds to the report of the sale of lot one, “ also all his (Stites) interest, present and prospective, in lot two of said plat or subdivision.” Thkt this addition was made by mistake is scarcely susceptible of a doubt from the face of the record, and is made entirely clear by the parol testimony, that lot two, or any interest therein, was not appraised, and that in point of fact lot one and that only was offered for sale and struck off at $165 per acre.

We can see no objection to the admission of parol testimony to prove such mistake. And it being shown that lot number two was not sold, nor was any consideration paid or intended to be paid therefor, the subsequent confirmation of the report and deed in pursuance thereof were not effectual in equity to pass an indefeasible title to the grantee.

Of course, this decision is not intended to depart from the well-established doctrine that the title of a purchaser at a judicial sale who has paid a consideration for his purchase can not be attacked collaterally for irregularities.

Judgment of district court reversed, and decree for plaintiffs.


text:
    John W. Rutherfoord & Co. v. The Cincinnati and Portsmouth Railroad Company.
    1. Section 1 of the act of 1877 (74 Ohio L. 168), which authorizes a mechanic’s lien on “any house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other structure,” and on the interest of the owner of the same, “in the lot of land on which the same shall stand or be reinoved to,” for labor performed or machinery or materials furnished by the contractor, “ for erecting, altering, repairing, or removing” the same, does not authorize such a lien upon a railroad.

    2. “Whether this statute provides for a lien on the bridges which form part of a railroad is not decided.
    Error to tbe District Court of Hamilton county.
    The courts below sustained a demurrer to plaintiffs’ second cause of action. It seeks to enforce a mechanic’s lien, in favor of the plaintiffs as railroad contractors, against defendant, an Ohio railroad corporation, for a balance due for constructing eleven miles of its railroad, from Columbia station, Hamilton county, to Mount Carmel, Clermont county, Ohio.
    The defendant’s road, as provided for in its charter, extends from said first named station, through Clermont, Brown, and Adams county, to Portsmouth, Scioto county. Of this line, only the western end has been completed under plaintiffs’ contract, while some work has been done further east, but all work is now suspended on the uncompleted part.
    Plaintiffs claim a lien on the railroad and right of way on entire line of said railroad from Columbia to Portsmouth, including not only the road itself and the defendant’s interest in the land on which it is located, but also on all its property, income, and franchises. The laud on which this lien is sought, is described as' “ a strip of land” from twenty to one hundred feet wide, extending from Columbia to Portsmouth, constituting defendant’s right of way. From the former point to Georgetown, the route is specifically described as passing through sections and surveys designated; but from thence to Portsmouth, it is generally described as passing through the counties above-named.
    It is stated that the work was done under a contract, which need not be here set out, and that there is a balance due, for which this lien is sought.
    The affidavit filed with the recorder states, that it is made to secure a building lien on said premises, lands, rights of way, structures, railroad bridges, and all parts of said railroad, etc.
    The contract as modified, and under which the work was done, included graduation, masonry, bridges, culverts, trestles, and such other work as would be required to complete the road ready for the rolling-stock, at agreed prices for the different classes of work, to be paid for upon estimates and measurements of the defendant’s engineer.

      Sayler & Sayler; lioadly, Johnson Colston, and Jordan, Jordan & Williams, for plaintiff's in error:
    A railroad built by a private corporation is such a structure as may be subjected to a lien under our mechanics’ lien law. 11 Wis. 119-122; Constitution, art. 13, § 3; Phillips on Mechanics’ Liens, 260, § 182; 11 Wis. 215; 26 Conn. 573; 37 N. H. 420; 10 Ohio St. 372; 27 Ark. 571; 39 Ill. 620; 44 Cal. 18.

      Mallon § Coffey and Stallo, Kittredge $ Shoemaker, for defendant in error:
    Under our mechanics’ lien act, the lien involved in this case could not be taken. See Brady v. Anderson, 24 Ill. 110; Coddington v. Dry Dock Co., 2 Vroom (N. J.) 477; Phillips on Mechanics’ Liens, § 15; Choteau v. Thompson, 2 Ohio St. 128; 55 E. C. L. (8 Q. B.) 452; 26 Ohio St. 47; 12 Cal. 452; 14 Bush (Ky.), 425; 3 Bush, 650.
    It is not contended that the mechanics’ lien law in terms embraces railroad structures, etc.; but, it is said that its-language is broad enough to include them.
    We can not believe that it was the intention of the legislature to give such a lien, and we can not, by construction,,, decide that the mechanics’ lien law embraces railroad structures, when such a construction would not only be contrary to, but ruinous to the public interest.
    In further illustration of the rules of construction which have been applied to mechanics’ lien laws, see McPheeters v. Merrimac Bridge Co., 28 Mo. 467; Dunn v. North Missouri Railroad Co., 24 Mo. 493; Abercrombie v. Ely et al., 60 Mo. 23; L. C. Mil. R. R. Co. v. Vanderpool, 11 Wis. 119; Esterly’s Appeal, 54 Pa. St. 192; Tuesdale v. Gay, 13 Gray, 311; Bank of Charlestown v. Curtiss, 18 Conn. 342; N. E. Car and Spring Co. v. B. & O. R. R. Co., 11 Md. 81; Leonard v. City of Brooklyn, 71 N. Y. 498; Rothguber v. Dupuy, 64 Ill. 452; Smith v. Kennedy, 89 Ill. 485; Coddington v. Dry Dock Co., 2 Vroom, 477.
   Johnson, J.

The statute under which this claim is-made, is the act of 1877 (74 Ohio L. 168). Section 1, which is relied on, reads: “That any person, who shall perform labor, or furnish machinery or materials for constructing,, altering, or repairing any boat, vessel, or other water-craft, or for erecting, altering, repairing, or removing any house, mill, manufactory, or other building, fixture, bridge, or other-structure, by virtue of a contract with the owner or owners, his or their authorized agents, shall have a lien to secure the payment of the same, upon such boat, vessel, or other-water-craft, or upon such house, mill, manufactory, or other-building or appurtenance, fixture, bridge, or other structure, and the interest of said owner or owners in the lot of land on which the same shall stand or be removed to.”

The second section provides for the mode of perfecting-this lien, by filing with “ the recorder of the county where-said labor was performed, or machinery or materials were-furnished,” an affidavit to an itemized account,, and copy -of contract, if in writing, and a description of the land on which, said improvement “ shall stand or be removed to,” :and the claim then becomes a lien from the date of the first item of the account, on the designated property, “ and the interest of the owner in the Jot of land on which the ■same shall stand or be removed to.”

The first section manifestly relates to such structures as have a definite locality.

The words house, mill, manufactory or other building, and the words fixture and bridge, each imports, an improvement on a lot of land on which it stands or may be removed to, and the requirement that the lien shall describe the land on which it stands, and shall be recorded in the county where the labor was performed, or machinery or materials were furnished; all point unequivocally to •structures having a certain locality, on which they are ■erected, and from which they may be removed.

There is no provision, as in case of mortgages, for recording these liens in several counties, as would be neees-sary, if they apply to a continuous line of railroad, extending, as this does, through several counties.

This view is strongly supported, by considering the provisions of section 3 of said act, which provides, in favor of a head contractor, a lien on a class of improvements of the same nature as railroads. There, a lien is given to any persou who shall perform labor or furnish materials for constructing, altering, or repairing any street, turnpike, road, sidwalk, way, or drain, ditch or sewer, under a“ private contract with the owner, upon the abutting lands, etc.

Plaintiffs do not claim a lien under this section, but it is ■cited here to show that the act provides for contractor’s liens on two classes of improvements: the one relating to buildings, fixtures, bridges, and other structures standing on a lot of land; the other to improvements of a different class, which, like railroads, are continuous from point to point, such as roads, ways, turnpikes, etc. In the former class, the lien is upon the designated structure and the lot or land on which it stands, which must b¿ specifically de•scribed in tbe lien; while in the latter, it is upon abutting lots or lands along the lines of the improvement, which lands must be described with the feet frontage of •each owner.

Section 10 provides to sub-contractors, laborers, and ■other middie-men, a mode of securing their dues, by stopping the pay coming to the head contractor.

This provision extends only to the class of improvements described in the 1st and 3d sections of the act. ¡Subsequent sections provide for enforcing payment by a lien which are not material to the case before us. The act omits tbe word railroad, which was in original section 2, ■as amended in 1871 and 1875, as hereafter shown.

This act was intended as a revision, as well as an amendment of prior acts on the same subject; and it repeals them, to wit: the acts of 1843, 1871, and 1875.

The plaintiffs’ claim is made under section 1, above recited, and is: 1. That a railroad, though not named, is a .structure, within the meaning of the term “ or other structure,” following the words “fixture” and “ bridge;” 2. If this is not so, then an express lien is given on all the bridges built by plaintiffs on the line, and the case should go to a master, to ascertain the cost of these bridges, and decree a lien to that extent.

1. Is a railroad a structure, within the meaning of section 1 of this act?

That it is a structure, within the general signification of that term, may be conceded. But a reasonable application of the maxim, noseitur a sociis, when construing the sentence, “ erecting, altering, repairing, or removing any house, mill, manufactory, or other building or fixture, bridge or other structure,” taken in connection with the provisions that the lieu is to be on the same, and on the lot of ■land on which it stands or shall be removed to; and the further provision that the lien shall be recorded in the county where the work is done, or materials or machinery is fornished, would, to our minds, lead clearly to the conclusion that this phrase “ other structures ” must be limited to improvements of the same class as those specifically named,, and can not be extended so as to include a railroad.

Again, to call a strip of land, for a right of way for a railroad from Cincinnati to Portmouth, a lot of land,, would be a misnomer.

If a railroad is a structure, within the meaning of this statute, then so is a common road, a turnpike, and all other improvements named in section 3, for which a special lien is given on the abutting lands, and we would have two liens for the same claim, the one on the lot of land, the other on the abutting property.

A brief summary of the previous legislation on this subject demonstrates the correctness of our conclusion, and precludes the idea that it was the intention to provide for a lien upon railroads.

The first general statute on the subject was the act of 1843 (1 S. & C. 833), and gave to the contractor a lien “for constructing, altering or repairing any house, mill, manufactory, or other building, or appurtenance” on the same, “ and the lot of land upon which the same shall stand.”

The 2d section provided for middlemen, in the same-class of cases, by notice to the owner, under which the amount due the head contractor could be intercepted.

This section was amended in 1871 (68 Ohio Laws, 107), and this right of middlemen was extended far beyond that of the head contractor, as to the class of improvements. It gave to the mechanic or other person the right to stop payments due the head contractor, for work or materials in the erection, construction, alteration or repair of any “house, mill, distillery, bridge, manufactory, fixture, road, turnpike, street, sewer, ditch, railroad, or other structure, building or appurtenance.”

. This gave to the middleman a lien on a railroad in express terms, but no such lien existed in favor of the head contractor.

The practical difficulty of enforcing such a lien against “ the lot of land on which the same shall stand,” in case of work done on roads, turnpikes, streets, sewers, ditches, etc., -as provided in this amendment, doubtless led the legislature in 1877, to change this provision and give the lien on -the abutting property; and to omit railroads, altogether, from the list of structures for which such liens were provided.

In 1875 (72 Ohio Laws, 166), section 1 of the act was • ■amended, giving to contractors a lien for removing, raising .and lowering any of the buildings named in the original .act, as well as for constructing, altering or repairing the same, and on the lot of land on which the same shall stand, ■or be moved to.

At the same time section 2 was also amended in the same respect by adding the words “ removal, raising, low•ering.”

These acts were repealed by said act of 1877, which, as we have seen, makes full provision for the class of cases embraced within it, in favor both of contractors and middle-men.

From 1871 to 1877, therefore, middlemen were secured for work and materials in case of railroads. Owing, as we suppose, to the difficulty of working out and enforcing this lien on such works, because of the fact that they were generally covered by mortgages before they were completed or even begun, and of the numerous conflicting claimants, the act of March 31, 1874 (71 Ohio L. 71), was passed, providing a special remedy — “ to secure pay to persons performing labor or furnishing materials in constructing railroads.” Its provisions are new and comprehensive, and were evidently intended as fully accomplishing the intention expressed in the title.

From 1874 to 1877 middle-men had, therefore, a double provision made for them, first by this act, and also by section 2-of the lien law, as amended in 1871 and 1875.

The statute of 1877 omitted railroads, doubtless, for the reasons stated as well as for the additional one — that this act of 1874, which was left in force, gave a sufficient remedy. It thus appears that this was no mere eassus omissus. The mind of the legislature was frequently directed to the subject, and after retaining railroads in the-2d section from 1871 to 1877, for the benefit of middlemen, it was deliberately omitted from the act 1877.

This omission is significant, and to our minds, conclusive, that the words, “ other structure,” which then first appears, in favor of head contractors, does not include a railroad.

The practical difficulty, and I might say the impossibility, of enforcing such lieDs on a line of railroad extending for long distances, constructed in sections as is the-usual mode, by different contractors, each of whom might assert, as in this case, a lien on the whole line, or, at least,, on the part he constructed, is apparent.

Again, the law authorizes a mortgage on the line of road to be constructed and the franchises, as well as the road when completed, to aid in its construction.

It is a part of the history of railroad building in this-state, that this mode of raising capital is generally resorted to. Such works require a large amount of capital, which could not be raised except oh bond and mortgage. This-can not be done if this lien existed, unless the mortgage-was recorded before work was commenced, or after it'was-fully paid for.

It has always been the policy of our legislature to encourage the construction of railroads as aids to the development of the resources of the state. Hence the legislation which permits such mortgages to aid in their construction.

The security which capital requires, and which was intended to be given by making such mortgages for completing the line of road as well as other purposes, not only on the property and franchises of the corporation then existing, but also on all after-acquired property and income (70 Ohio L. 291), a first lien on such property, forbids the-idea of a mechanic’s lien. It would defeat all efforts to-negotiate bonds, for no one would purchase them if the-entire cost of construction could thus be made a prior lien.

2. It is claimed that such lien is expressly given on the-bridges constructed by plaintiffs, as the word bridge is found in the statute.

It is enough to say that no such claim is made iu the pleadings. The only point presented by the record is properly stated by plaintiffs’ counsel in these words: “Can a mechanic’s lien be taken on a railroad of the kind set out in the pleadings, under the laws of the State of Ohio?” The lien sought is on a strip of land from Cincinnati to Portsmouth, and the railroad constructed and projected thereon,, including bridges, culverts, trestles, aud every thing necessary to a completed road. No bridges are specified, nor is any lot of laud on which they stand described. The petition does not state the cost of these bridges, nor pray for a lien thereon, but upon the railroad as an entirety.

Whether or not such a lien could be taken upon a railroad bridge, built under a specific contract for that purpose,, is not decided.

Judgment affirmed, and cause remanded.