author: White, J. Johnson, J.

text:
    Howard v. Brower.
    1. A verbal promise in the alternative to compensate a party by will, either in hmd or money, is within section 5 of the statute against frauds and perjuries.

      2. Where the agreement sued on is within such statute, and it is fairly to be inferred from the petition that it is not in writing, the defense of the statute is available on demurrer.
    3. A verdict cannot be regarded as a finding of the value of services as upon a quantum meruit, where the case is not submitted to the jury for such finding, but under instructions to assess the damages according to the terms of a void agreement.
    4. Under the act of April 18, 1870 (67 Ohio L. 113), husband and wife are competent witnesses for and against each other, except as to the matters therein specified. Westerman v. Westerman (25 Ohio St. 500), approved and followed.
    Error to the District Court of Clermont County.
    The original action was brought in the court of common pleas by the defendant in error, Alexander II. Brower, against the plaintiff in error, Vm. Howard, as administrator of John Kugler, deceased. The substance of the cause of action, as stated in the petition, is as follows:
    “ The plaintiff further says, that after he came of age, the said John Kugler stated to the plaintiff, that he could not do without his services in his large business; and, that if the plaintiff would continue with him in his business, he would pay plaintiff a reasonable salary from year to year, and would also provide for plaintiff liberally out of his estate, by his last will and testament, at least to the amount of ten thousand dollars, either in real estate or money. That in consideration of the said promise and agreement of the said Kugler, so made to the plaintiff after he became of age, he continued in the service and employ of the said Kugler, in and about his manifold business of milling, distilling, dry goods, farming and stock-raising for many years, and up to his death in the year A. D 1868. That said Kugler died intestate and without providing for plaintiff, <fcc., ■.....”

      “ That he did not in his lifetime provide for him said sum of ten thousand dollars in money or real estate, or any part thereof, or any other sum in lieu thereof, nor has his administrator since his death, wherefore plaintiff asks a judgment for the sum of $10,000 with interest from January 4th, 1868, and for costs.”
    The petition was demurred to, and the demurrer overruled.
    The answer joined issue, and among other defenses set up the following:
    “ 3d. This defendant further answering says, as administrator as aforesaid, that each and every one of the supposed said promises made by the said John Kugler in his lifetime, as set forth in the said amended petition of plaintiff, are within the statute of frauds and perjuries of the State of Ohio, not being evidenced by any writing.”
    The following is the plaintiff’s reply to this defense:
    “ 2d. He denies that the promises mentioned in the third clause of said amended answer are within the statute of frauds and perjuries of Ohio.”
    On the trial, among other exceptions, exception was taken to the ruling of the court admitting the wife of the plaintiff to be a witness in his behalf.
    The court charged the jury, among other things, as follows :
    “ 6th. The plaintiff is required in this case to entitle him to a verdict in his favor, to prove by a preponderance of testimony that the agreement set forth in his petition was made between himself and the said John Kugler, and he may prove this by any testimony that will show or tend to show such agreement, and the testimony bearing on this question of contract between Kugler and Brower that has been submitted to you is for your consideration and you will apply it to the case and determine whether or not a contract such as is set forth in the petition has been established before you substantially.
    “ If, however, you find from the proofs that Brower entered into the service of Kugler on the distinct agreement and in consideration that Kugler would pay Brower a stated salary per year and in addition thereto, that for his services he would provide for him in his will the sum of $10,000 in real estate or money, and that Brower did in fact render the service to Kugler and received from Kugler his stated annual salary, but Kugler died without providing any sum to pay such additional compensation to Brower, then the agreement to be valid need not be in writing, for part performance takes the agreement out of the statute of frauds.
    “ The issue now before you grows out of an alleged contract between plaintiff and John Kugler touching the services of plaintiff to John Kugler in his lifetime. It is that plaintiff. alleges that he entered into and continued in the service of John Kugler, under an agreement on the part of Kugler, assented to by plaintiff, that as a compensation for such services of plaintiff he would pay him a fixed salary from year to year, and would at his death give him in his will ten thousand dollars in real estate or money, that he did render the services from year to year and received the stated compensation from year to year, but that Kugler did not provide any compensation for him in his will and that he is entitled to the sum of $10,000 in part consideration for his services, and for this suit is brought with interest.”
    The trial resulted in a verdict for the plaintiff in the sum of $11,530. A motion for a new trial was made on the ground, among others, that the verdict was against the law and evidence ; and the motion' being overruled a bill of exceptions was taken, embodying all the evidence and the charge of the court. Motion was also made in arrest of judgment, which was likewise overruled; and judgment rendered on the verdict. This judgment was affirmed by the district court. The object of the present proceeding is to reverse both judgments.

      Wm. Disney, P. F. Swing and T. M. Lewis, for plaintiff in error:
    I. A demurrer reaches the question of the statute of frauds. Browne Stat. Frauds, § 509, p. 484, citing Whitehead
      v. Bevis, 2 Bro. C. C. 559 ; Cozene v. Graham, 2 Paige Ch. 177, 182; Field v. Hutchinson, 1 Beav. 599 ; see 1 Chitty, 213 ; Headington v. Neff, 7 Ohio, pt. 1, 229, 236; McCullough v. Tapp, 4 W. L. M. 575.
    II. The demurrer was well taken. The alleged agreement was not in writing. It was an agreement for the conveyance of real estate. It was therefore within the statute of frauds. Ham v. Goodrich, 37 N. H. 185, and also because it gave Kugler the option to consider the contract as one for the conveyance of real estate.
    III. It was nofian action in guantum meruit. Browne on Stat. Frauds, § 124 ; Cocking v. Ward, 1 Man. Gr. & Sc. 858; King v. Brown, 2 Hill, 485 ; Hill v. Hooper, 1 Gray, 131; Browne Stat. Frauds, § 125 ; Falmouth v. Thomas, 1 Cro. & Mees. 89; Ham v. Goodrich, 37 N. H. 185 ; Erben v. Lorillard, 19 N. Y. 299 ; Lisk v. Sherman, 25 Barb. 433.

      Griffith & Giffith and A. Brower, for defendant in error:
    The contract was not within the statute of frauds. It was not for the conveyance of land. The agreement set forth was not for the conveyance of any interest in lands, tenements or hereditaments. John Kugler, by the terms of the contract, did not promise to, nor agree with Alexander H. Brower, that he would convey or grant him any interest in any specific real estate. The promise was merely to compensate Brower for his service in an amount not less than $10,000. Brower was to have the sum of $10,000 or more out of the estate of John Kugler; this was the intention and understanding of the parties. Kugler had the option to devise by his last will and testament, out of his vast premises, a tract of real estate of the value of not less than $10,000 or to bequeath to Brower a sum of money not less than $10,000 as compensation for the services. We think that no reasonable construction of this agreement can be placed upon it, that would give it the effect of a contract for the conveyance of land. If so, what land? what specific piece or parcel of real estate was agreed to be conveyed? None whatever. If the contract had been reduced to writing and signed by the parties, could Brower have brought his action against Kugler’s administrator and compelled him to convey any specific lands ? Certainly not. But he could have brought his action and recovered, as he has done, for $10,000 as compensation, and for the very reason that the contract was not for any interest in lands, but to pay for services by last will and testament.
    The testimony of the wife of plaintiff below was admissible. Westerman v. Westerman, 25 Ohio St. 500.
   White, J.

Under the Code the original action is one for the recovery of money only. Prior to the adoption of the Code it would have been an action at law as contradistinguished from a suit in equity. The case is not one calling into exercise the equity powers of the court.

The first question is, whether the contract sued on is within section 5 of the statute against frauds and perjuries. S. & C. 659. The statute declares that no action shall be brought upon any contract or sale of lands, or any interest in, or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.

The contract send on, and which the plaintiff avers he accepted and performed, is thus described in the petition:

The plaintiff further says, that after he came of age, the ' said John Kugler stated to the plaintiff, that he could not do without ■ his services in his large business; and that, if the plaintiff would continue with him in his business, he would pay plaintiff a reasonable salary from year to year, and would also provide for plaintiff liberally out of his estate, by his last will and testament, at least to the amount of ten thousand dollars, either in real estate or money P

Browne, in his work on the Statute of Frauds, in speaking of contracts in which a party promises to do one of two or more things, the statute applying to one of the alternative engagements, but not to the others, uses this language : It is manifest that of such alternative engagements, no action will lie upon that one, which, if it stood alone, could be enforced as being clear of the statute of frauds, because the effect would be to enforce the other, namely, by making the violation of it the ground of an action.” Browne on the Statute of Frauds, § 152. And in Patterson v. Cunningham it is laid down that a promise, being in the alternative, to pay money or convey lands, does not exempt it from the operation of the statute. 12 Maine, 506. See, also, Crawford v. Morrell, 8 Johns. 253; Van Alstine v. Wimple, 5 Cow. 162 ; Goodrich v. Nichols, 2 Root, 498; Agnew on Statute of Frauds, 86; Leak’s Dig. of the Law of Contracts, 675; Savage v. Canning, 1 I. R. C. L. 434; Fuller v. Reed, 38 Cal. 99.

The principle of the rule is that where the contract is entire, no one part being severable from the rest, and part of it is within the statute, the other part cannot be enforced.

The breach alleged in the petition is that Kugler, the intestate, did not in his lifetime provide for the plaintiff the sum of ten thousand dollars in money or real estate, or any part thereof. To constitute a cause of action on the agreement it was necessary to aver a breach of both alternatives of the promise; and as under the statute there could be no breach of the promise in respect to the land, there could be no cause of action on the promise in respect to the money.

It is fairly to be inferred, from the averments in the petition, that the agreement sued on was not in writing; and where such is the case the defense of the statute of frauds may be made' available by demurrer. Randall v. Howard, 2 Black U. S. 585.

The court, therefore, erred in overruling the demurrer to the petition. But if the objection had not appeared on the petition, the judgment could not be sustained. The answer set up the statute as a defense, averring that the supposed promises sued on were not evidenced by any writing. The reply did not traverse this averment. True, it denied that the promises were within the statute ; but this was the statement of a mere legal conclusion. It did not aver that they were in writing. If the reply had any effect it could only be that of a demurrer, and as such it was not well taken.

The verdict cannot be sustained as a finding of the value of the plaintiff’s services as upon a quamtmn meruit. The case was not submitted to the jury upon that view of the law. The court charged the jury, in effect, that to entitle the plaintiff to X'ecover he must prove the making of the agreement sot out in the petition; that if such an agreement was proved it was valid, and the rights of the pax’ties wex’e to be determined by it. Of course, if the agx’eement was valid the rights of the parties were to be determined by its termas; but this precludes all idea of a finding by the jury of the value of the plaintiff’s services as upon a quantum meruit in the absence of such an agreement.

The only remaining question we deem it necessary to notice is the ruling of the court in allowing plaintiff’s wife to be examined as a witness. The question arises under the act of April 18,1870 (67 Ohio L. 113), and was decided in Westerman v. Westerman, (25 Ohio St. 500), in accox’dance with the rnrling of the court below. It is contended by counsel for the plaintiff in ex’ror that the decision in that case is wrong, and numerous authorities are cited to show the gi’ounds, at common law, upon which husband and wife were excluded from being witnesses for or against each other’. We do not question the correctness of these authorities ; but the case referred to was decided upon the construction of the code and its amendments, which regulate the whole subject of the competency of witnesses in civil cases. We are still satisfied that the decision in Westerman v. Westerman is correct.

Judgments of the district court and of the court of common pleas reversed, verdict set aside, demurrer to the petition sustained, and cause remanded to the court last named.

Johnson, J.

I am unable to concxxr in the first point of the syllabus, as applied to the facts stated in the petition and admitted by the demurrer'.

It is alleged, that in 1833, when plaintiff was fifteen years old, his father hired him to Kugler until he should come of age. In consideration of the services to be rendered, Kugler px-omised to support and educate him, and when he should ar« rive at majority, Kugler was to set him up in business. This contract he performed, but instead of setting him up in business as he agreed, Kugler stated to plaintiff, that he could not do without his services in his business, and if he would continue with him he would, in addition to a reasonable salary from year to year, provide for plaintiff out of his estate by his last will and testament, “ at least to the amount of ten thousand dollars, either in real estate or money.”

This was in 1841. The plaintiff, on his part, agreed to this contract, and continued in Kugler’s service until his death in 1868. The breach alleged is, that Kugler neither provided by will for payment in money or in real estate, nor otherwise paid said amount. This action is to recover said sum of ten thousand dollars, with interest from the date of Kugler’s death.

This was a contract to pay at least ten thousand dollars, in real estate or money. The option was in the promisor. He in terms bound himself to compensate the plaintiff, at least to the amount of ten thousand dollars, but reserved the election of doing so in either of two ways. It was to be done by a will. He died intestate, nor did he elect which mode of payment he would adopt; thus in contemplation of law, he elected not to pay in land and left the debt to be otherwise paid. The majority of the court now holds that inasmuch as one of the modes reserved by himself to discharge this obligation,—to wit, payment in land,—is within the statute of frauds, therefore no action will lie to enforce the other alternative, to wit,—payment in money,—though not within the statute, and though the contract has been fully executed by the plaintiff. While it is conceded the plaintiff may recover for the value of these services upon a yuaMtmn meruit, yet it is said he cannot sue on the alternative clause not within the statute, because the other alternative is within the statute.

It must not be forgotten, that this was a money contract for services to be rendered, and which were rendered. The parties had fixed the value of these services. The option related solely to the mode of payment, so that, at Kugler’s death, he owed ten thousand dollars at least,” which he could discharge in one of two ways, either to provide in his will for a payment in money, or of land of that value. It was not a contract to devise any specific tract of land, but to pay ten thousand dollars in any real estate he chose that was of that value. If it had been in writing, an action for a specific performance would not have lain because no tract of land was specified. Eor a breach of such a contract in writing the promisee could only recover a money judgment.

Where a contract is entire in its various parts, “ the disability of the plaintiff to recover on one of those stipulations manifestly results, not from the fact that the statute happens to apply to the remainder, but from the tenor of the agreement by which it has been shown ‘to be the intention of the parties, that if performed at all, it is to be performed as a whole. Browne on Stat. of Frauds, § 144.

The reason for the rule is, not because the statute of frauds happens to apply to one stipulation, but because on its face the contract shows it was the intention of the parties that the whole contract should be performed, in other words, that it is not divisible. When the reason of the rule ceases, the rule itself ceases. In the case at bar the intention was not to pay twice, nor to do two things—pay in land a/nd money, but in one or the other, at his election, to the amount of ten thousand dollars. If one alternative was not enforceable, the other was. To allow Kngler’s estate to escape liability on this contract on the ground that the option he reserved to pay in land was not enforceable, because not in writing, is making- the' statute an engine of fraud, rather than a means of preventing it. •

The opinion of my brother White relies on a citation from section 153 of Browne on Statute of Frauds.

The author states as a reason for the rule, “ That it is manifest that on such alternative engagement, no action will lie on that one which, if it stood alone, could be enforced as being clear of the statute of frauds, because the effect would be to enforce the other', namely by malcvng the violation of it the ground of am, action.” The reason thus given clearly shows that the learned author is speaking of alternative propositions, where a violation of one gimes a right of action on the other, and not of a contract to do one of two things at the promissor’s option, when both are violated. Goodrich v. Nichols, 2 Root, 498, cited by the author, to support the text, illustrates his meaning. That was an action to recover £100 as a penalty alleged to be forfeited to plaintiff on a verbal contract to convey lands which he had refused to convey.

The right to an action for the penalty depended on a breach of the contract to convey. As the contract to convey was void, the action could not be maintained, as that would make the breach of this void promise the ground of action. The case at bar is not analogous. Here Kugler violated the contract to pay in money, a promise not within the statute, as well as the one to pay in land. The right of action here is not founded on the breach of the contract to pay in land, but for failing to pay in either way. This case, therefore, does not support the application made of the text, to the case at bar.

Neither does Van Alstine v. Wimple, 5 Cow. 162, also relied on. That was not the case of two alternative promises. The head-note, which embodies the point decided, is : “ If part of an entire promise be void by the statute of frauds, the whole is voida principle not disputed.

Rice v. Peet, 15 Johnson, 503, so far from sustaining the majority, or the text cited, is an authority in support of the proposition, that a breach of a verbal contract within the stab me of frauds, cannot be made the foundation of a right in favor of the other party.

That was a verbal agreement to exchange lands, on which plaintiff delivered a note of a third person as a pledge to be forfeited if he failed to comply, which note the defendant col-1* lected. The suit was to recover the money collected on the pledged note. It was held he could recover, as the verbal agreement to exchange land was void ; there is no consideration for the promise that the note should be forfeited. No right of forfeiture arose from a refusal to exchange lands.

This case rests on the same principle as Goodrich v. Nichols, supra, namely, that the breach of a verbal contract within the statute cannot be made the foundation of a right. The only case cited in which the facts and decision support the text relied on, is Patterson v. Cunningham, 12 Maine, 503. This decision is based solely on authorities cited, neither of which sustains it, as will appear from a learned discussion of these cases, in Rand v. Mather, 11 Cush. 1.

The leading case, there cited, is Lexington v. Clark, 2 Ventris, 223, which was assumpsit, to recover £260 on a verbal contract to pay £160, the existing debt of a third person, a promise within the statute, and also, to pay future rents, not within the statute. It was held to be an entire agreement, and the action is brought for both sums, and indeed could not be otherwise without a variance from the promise.”

So Chater v. Becket, 7 Term R. 197, was where there Was a promise to pay the debt of another, which is void, a/nd also, to do some other thing. It was held that it was one indivisible contract which the plaintiff could not separate. Numerous cases might be cited of this character, but they utterly fail to establish this as the rule, where contracts are not entire, as where there is a promise to do one of two distinct things, one of which is valid.

On the other hand it is well settled, that a contract which is not an entirety, but consists of two or more independent stipirlations or promises, capable of severance, one of which is invalid, that fact will not prevent the enforcement of the other.

Ohio ex rel. Lasley v. Board of Education, 35 Ohio St. 519, was a contract to pay a debt, with lawful interest, and also a promise to pay usurious interest, all based on a single promise of the relator. It was held that the plaintiff could recover on the valid promise.

In Widoe v. Webb, 20 Ohio St. 435, it was held 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.”

So : “ if one branch of an alternative becomes impossible, so that the promisor has no longer an election, this does not destroy his obligation, unless the contract expressly so provides, but he is now bound to perform the other alternative.” 2 "Parsons on Contracts, *657.

In Stevens v. Webb, 7 C. & P. 60, it was held, that if an agreement is in the alternative, and one branch cannot by law be performed, the party is bound to perform the other.

In State v. Ex’rs of Worthington, 7 Ohio, pt. 1, p. 171, it was held that an alternadme contract to pay money or convey land in a certain event is not discharged by the death of the promisor, rendering it impracticable to convey the land. This action was on the special contract to recover the money alternative.

It was. insisted there, as it is here, that where a contract is in alternatives, one of which becomes impossible by act of God, the obligor is released from the discharge of the other.” But the court held otherwise, quoting from Pothier on Obligations, Where several things are due under an alternative, the extinction of one does not extinguish the obligation.”

The court adds : “ It would be indeed startling to the good sense of an honest man, if one who contracted to do one of two things, need to do neither if unable to do both.”

To the same effect is State v. Collins, 6 Ohio, 126.

The text books say : If the promise be to pay money at a certain time, or deliver certain chattels, it is a promise in the alternative; and the alternative belongs to the promisor. He may do either the one or the other, at his election ; nor need he make his election until the time when the promise is to be performed ; but after that day has passed without election on his pari, the promisee has an absolute right to the money, and may bring his action for it? 2 Parsons on Contr. *651, and note.

In support of the foregoing principles I cite the following cases, which are more or less directly in point: Mobile Marine Duck Co. v. McMillen, 31 Ala. 711; Wood v. Benson, 2 Tyrw. 93, a leading case; Wiley v. Shoemak, 2 Greene (Iowa), 205 ; Townsend v. Wells, 3 Day, 327; Vanhoozer v. Logan, 3 Scam. 389; Exp. Littlejohn, 3 Man. Dea. & De Gex, 182 ; Choice v. Moseley, 1 Bailey, 136; Rand v. Mather, 11 Cush. 1. This last case is valuable as a discussion of the cases, and the reasons for the distinction, between entire and severable stipulations, where part is within and part without the statute ; it fully supports the principle, here claimed.

The conclusion reached is': that where one verbally promises, to pay a sum of money agreed upon, “ m real estate or m money ,’7 at the promisor’s election, on performance by the other of his part of the contract, and the time of such payment is suffered to pass without his making his election, or performing either alternative of his promise, the other party having fully performed, the sum agreed on becomes payable in money, and an action on the contract to recover the money agreed on, may be maintained, although the alternative to pay in land is within the statute of frauds.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Dille v. Lovell.
    In an. action to recover damages for assault and battery, where an issue was joined on an answer justifying the alleged trespass, the court allowed defendant to begin and close, in offering testimony and in the argument: Held :

    1. That unless there were special reasons authorizing the court to otherwise direct, the right to begin and close was in the plaintiff.
    2. Unless it affirmatively appears that special reasons did not exist, which would authorize the court to change the order of proceeding at the trial, or, that the plaintiff was prejudiced thereby, a judgment for the defendant will not be reversed.
    Error to District Court of Athens County.
    The plaintiff brought his action against Thomas Lovell, Sr., Thomas Lovell, Jr., and Lorenzo Lovell, to recover damages for assault and battery.
    The defendants filed separate answers, justifying the alleged trespass; the first named, on the ground that he acted in defense of his son, the said Lorenzo; the second that he acted in defense of his master, the said Lorenzo, who alleged that he acted in necessary self-defense.
    The reply denied each and every allegation of each of said answers.
    The trial resulted in a separate verdict for each of the defendants. A motion for a new trial was overruled, judgment was rendered on the verdict and a bill of exceptions taken by plaintiff.
    This judgment was affirmed by the district court.
    Among the grounds for a new trial, and the only one saved by the bill of exceptions, is, that the court, on the trial and against the objection of the plaintiff, allowed the defendants to open and close, both in the introduction of testimony and in the argument.
    It appears that this objection was made before any testimony was offered, and again after all the testimony was closed on both sides.
    None of the testimony is set out, and it does not appear that there were not special reasons why this order was adopted by the court, nor is there anything tending to show that plaintiff was prejudiced by the order of the court.

      Grosvenor, Dana & Jones, for plaintiff in error:
    Did the coui’t err in permitting the defendants in error to open and close the evidence and argument on the trial ? “ The party who would be defeated, if no evidence wex’e offered on either side, must first produce his evidence; the adverse party will then pi'oduce his evidence.” Code, § 266, subd. 3; Standart v. Shelton, 1 West. L. M. 405; Thompson v. Thompson, 2 West. L. M. 84; Lexington Insurance Co. v. Paver, 16 Ohio, 324; Beatty v. Hatcher, 13 Ohio St. 470; Ferguson v. Gilbert, 16 Ohio St. 88.

    Under these pleadings, was there anything left for the plaintiff to prove before he could escape “ defeat ?” What is defeat in such an action ? Why, clearly, a verdict for nominal damages would be a substantial defeat.
    The plaintiff set out special injury to his “head, face, and side,” vide petition, and he had a right to show how great it was.

      De Steigner & Jewett, for defendants in ex’i’or:
    If no evidence had been given on either side, both the verdict and judgment must have been for the plaintiff and against the defendants. To call this a defeat of the plaintiff and a victory for the defendants would be a perversion of language. The rnling of the court below was correct and in accordance with the Code, § 266, and Fewster v. Goddard, 25 Ohio St. 277; also see 1 Whart. Ev. §§ 353, 354, 357, 358.
    The claim of the plaintiff to open in the introduction of evidence and argument was a demand that the court should exercise the discretion vested in it by the above section of the code in his favor and give him the opening and closing. This the court declined to do, and no error can be predicated of its action in that respect; for, Eirst—It was a matter of sound discretion. Byrne v. Painter, 2 Law Monthly, 547; Randerbury v. Shelley, 6 Ohio St. 307; Elwill v. Chamberlin, 31 N. Y. 611. And, Secondly—What is matter of discretion will not sustain error. Byrne v. Painter, supra ; Legg v. Drake, 1 Ohio St. 286; Graham v. Davis, 4 Ohio St. 362; Runyan v. Price, 15 Ohio St. 5; Dallas v. Ferneau, 25 Ohio St. 635.
   Johnson, J.

Did the court of common pleas err in permitting the defendants in' error to open and close the evidence and argument of the case ?

When the jury has been sworn the trial shall proceed in the following order, unless the court for special reasons otherwise directs.”

. . Third—The party who would be defeated if no evidence were given on either side, must first produce his evidence.” Code, § 266.

Upon the issues joined in the case, if there existed no special reasons, authorizing the court to direct a different order of proceeding, the plaintiff was entitled to begin and close. It was an action for wnliguidated damages, with pleas in justification which were put in issue by the reply. Upon such issues, both reason and the weight of authority is, that the plaintiff should begin and close. 1 Greenl. Ev. § 77, and notes; 1 Whart. Law of Ev. §§ 353, 357, 358 ; Mercer v. Wall, 5 Ad. & El. N. S. 447 (5 Q. B. 447); Page v. Osgood, 2 Gray (Mass.) 260 ; 1 Phillips on Ev. § 816, note 223.

Conceding this to be so, it does not follow that this judgment should be reversed.

The code vests a discretion in the court to change the order of proceeding on the trial, which may be exercised where there are special reasons therefor. Por aught that appears such reasons may have existed. The bill of exceptions does not show that they did not. Error will not be presumed, and to authorize a reversal on the ground of an abuse of this discretion it should appear that the party has been prejudiced. Lord Abinger, in Huckman v. Fernie, 3 Mees. & W. 516, correctly states the rule upon this point thus: “ I cannot say that we should interfere in a very doubtful case; but if the decision of the judge were, clearly and manifestly wrong the court would interfere to set it right. This is sometimes a very important matter, and a departure from the usual rúle might be attended with serious consequences.”

In Geaeh v. Ingall, 14 Mees. & W. 97, Pollock, C. B., in speaking of this case as settling the English practice, says, “ where it is clear that wrong has been done by the ruling of the judge at nisi prius, as to which party should begin, by the onus of proof being thereby imposed on the wrong party, the court in banc will interpose to correct the error.”

The authority to change the order of proof and argument, is not an arbitrary discretion, but depends upon special reasons in the given case. To warrant this court upon error to reverse for allowing the wrong party to assume the onus, it must appear that wrong has been done. This is the object of a bill of exceptions where it does not otherwise appear in the record.

It appears that each party offered all his testimony, and that the case was fully argued to the jury by counsel representing each side. For aught that appears the verdict was supported by the law and the evidence after a full and fair trial. In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party, and no judgment, shall be reversed by reason of such en’or or defect; Code, § 138.

We hold therefore, that in the absence of anything in the record to the contrary, we must presume that the court had special reasons for changing the order of proceeding. Dallas v. Ferneau, 25 Ohio St. 635 ; Courbright v. Staggers, 15 Ohio St. 511. This principle has a forcible application in Fewster v. Goddard, 25 Ohio St. 276, much relied on by counsel for plaintiffs. That was a suit on a promissory note. The answer alleged payment in full. No reply was filed, but the case was tried as if the plea of payment was denied. The court erroneously ruled that the plaintiff had the rightto open and close. The plaintiff offered the note and rested his case. The defendant then gave evidence tending to prove payment, and nested. The plaintiff then gave evidence in rebuttal tending to prove admissions of defendant, that the note had not been paid. The defendant then offered evidence to rebut the plaintiff’s evidence of admissions, but the court rejected this testimony.

Tfus court holds, that in the absence of a reply, the defendant was entitled to a judgment, but that the parties proceeded upon the theory that a reply had been filed, and that upon this supposed issue, the defendant would have been entitled to open and close. The judgment was reversed' for error in holding otherwise, and in rejecting the rebutting evidence offered by defendant.

The court below had erred in two particulars, in allowing the plaimiff to open and close on a plea of payment, and as a consequexice in rejecting defendant’s evidence in rebuttal.

The defendant was denied a right that was manifestly prejudicial, the right to put in all the testimony he had. For a denial of this right the judgment was reversed. In the case at bar no such error appears.

Dragoo v. Whisner, 31 Ohio St. 192, simply holds, that in an action for an assault and battery, with a justification, it is not error to allow the plaintiff to open and close.

This is in harmony with our present holding.

Judgment affirmed


author: Okey, C. J.

text:
    West v. Klotz.
    1. A mechanic furnishing material for the construction of a mill, under a contract wiih the owner, may, by his agreement as to the manner of payment, and his acts with respect to the claims of other creditors, he precluded from asserting a mechanic’s lien, as against such creditors, although he has made no express promise that he will not assert such lien.
    2 The proposition of a manufacturing company incorporated under the ■ laws of New York, to huild a rolling mill at S., in this state, if its citizens would donate to the company ten acres of land and lend it $150,-000, to he evidenced hy the bonds of the company secured by mortgage on the property, was accepted by certain citizens of S.,who conveyed to it such land, loaned to it said sum, receiving from the company such bonds and mortgage. .Among the persons advancing money, and accepting bonds so secured, was K., who afterwards sold such bonds to other persons. After the mortgage was recorded, but before any considerable part of said sum was advanced to tbe company, and before any written consent of stockholders of the company to tbe execution olf the mortgage was filed in the office where mortgages are recorded, as provided in the statutes of New York, K. commenced furnishing material for the construction of the mill, under an agreement that he should he paid in monthly installments out, of the moneys received for the bonds. His account amounted to $76,000, and during the time it accrued, he received thereon, in installments, from the moneys so loaned to the company, $57,000, and the company paid out of the moneys advanced to it various sums to other creditors. Subsequently, when the company was in failing circumstances, K. asserted a mechanic’s hen for the balance due him, and brought suit to enforce it : Held, conceding hut without deciding that the objections to the mortgage would under other circumstances he fatal, that K. is precluded - by his acts and agreement from asserting such objections, and that on the facts stated the mortgage lien is superior to the lien of K.
    Error to the District Court of Erie County.

      H. & L. H. Goodwin, for plaintiff in error.

      W. A. Collins and G. & W. H. Mills, for defendants in error.
   Okey, C. J.

Tbe Nes Silicon Steel Company erected a rolling mill at Sandusky, and subsequently failed, and- tbe question presented is as to tbe priority among its creditors.

On December 10, 1875, Klotz & Kromer filed in tbe court of common pleas of Erie county, a jietition to enforce a mechanic’s lien on property in that county belonging to the Steel Company. Among the defendants in the action, beside the Steel Company, was William T. W est (plaintiff in error), who claimed as successor of Lester S. Hubbard, under a mortgage on the same property executed by the Steel Company to Hubbard as trustee for its bond holders. Answers, cross-petitions and replies were filed, and after a decision of the cause in the court of common pleas, it was appealed to the district court, where it was held that the lien of Klotz & Kromer, as mechanics, was superior to that of West as such trustee under the mortgage, and the court ordered that the property should be sold to satisfy the liens thereon; and thereupon, on leave of this court, this petition in error was filed by West to reverse the judgment of the district court.

All the evidence is set forth in the record, and there is no material conflict therein. Klotz & Kromer furnished to the Steel Company a large quantity of material to be used, and which was used by the Steel Company in the erection of a rolling mill on the premises above referred to, at Sandusky city. This was done under a written proposition of Klotz & Kromer, assented to in writing by the Steel Company, on December 24, 1872, though the proposition embraced materials already furnished as well as materials to be thereafter furnished. The acceptance was in these words: “The Nes Silicon Steel Company hereby accepts the above proposition and agrees to pay as follows: eighty five per cent, to be paid on delivery of work once in each month, and balance to be paid on the completion of the rail milland the acceptance was signed by the president of the Steel Company. The first material was furnished on the 10th of November, 1872, and the last on March 14, 1874. The materials were furnished continuously, so that the whole constituted one account, which account amounted to $76,531.42. The first payment was made on the account on December 19, 1872, and the last on December 31, 1873, the payments in the aggregate amounting to $57,769.83, and leaving a balance due Klotz & Kromer of $18,761.59. On March 20, 1874, they asserted, in the form prescribed by statute, a mechanic’s lien for their claim, and subsequently brought suit and recovered judgment thereon in the court of common pleas of Erie county. No doubt their lien for such balance is entirely valid and should date from November 10,1872; but the question is whether such lien is superior to the lien of the mortgage.

Previous to August, 1872, the Nes Silicon Steel Company was incorporated under the laws of the state of New York, and engaged in the business of manufacturing steel at Rome, in that state. On August 7, 1872, that company made a proposition to the citizens of Sandusky city, with a view to the erection of a rolling mill at that place. The proposition, signed by the president of the company, was as follows : “ The Nes Silicon Steel Company, of Rome, N. Y., proposes to the citizens of Sandusky, Ohio, as follows: If the citizens of Sandusky will donate five acres of land to the Nes Silicon Steel Company in some suitable location for a rolling mill in said city, and loan on bond and other security hereafter named, and on the conditions hereafter named, one hundred and fifty thousand dollars in cash, the Nes Silicon Steel Company will erect on said five acres of land, in a good and workmanlike manner, and of good and suitable material, a rolling mill for rolling railroad rails, of a capacity of at least fifty to sixty tons per day of twenty-four hours, and puddling furnaces sufficient for re-rolling; to commence and prosecute the same vigorously, as soon as notified by the-citizens of Sandusky that this proposition is accepted, to an early completion of the same, to be done within one year from said notice, and when completed, to stock and run and operate the same for five years, at least, after its completion, destruction by the elements excepted. This proposition is as follows : The Nes Silicon Steel Company proposes, as soon as the aforesaid land is deeded to it, to execute a mortgage on the same, to a trustee appointed by both parties, for one hundred and fifty thousand dollars, to secure the payment of bonds for one hundred and fifty thousand dollars, and to issue bonds to the same amount, payable in five years, bearing ten per cent, annual interest, payable semi-annually, and to place the same in the hands of said trustee, agreed upon by both parties. Coupons for said interest to be attached to said bonds. Interest shall only be paid on said bonds from the time the moneys are actually received by said company, to be adjusted by the trustee before delivering the bonds. Said bonds' are to be guaranteed by Elisha P. Wheeler, Charles H. Horton, Coe Robertson, William Evans, W. L. Graham, David Robertson, J. C. Robertson, E. Gulick, and as many other persons as the above named may choose to do so. The duties of said trustee are to hold the bonds in trust for the parties hereto, and to receive the money from the citizens of Sandusky for said bonds at par, and to dispose of said bonds and money as follows: When said company shall' present to him bills or accounts for materials, work or machinery, used in erecting said rolling mills and puddling furnaces, eighty-five per cent, of the amount of said bills or accounts shall be advanced to said company, lie receiving its receipt therefor, and describing the bill or account; and when said mill and'furnaces are completed, the fifteen per cent, remaining shall be paid on the same, not exceeding the amount of said bonds, and when the amount of said bonds has been paid to said company, said trustee shall deliver said bonds to the parties subscribing for the same, to the amount each has so subscribed. In case of the failure of the Nes Silicon Steel Company to pay said bonds or the coupons attached thereto, then, at the request of any bondholder then unpaid, said trustee shall proceed to collect said bond or coupon from the company, or guarantors of said bond, and pay tbe avails to the holder of said bond. Said Nes Silicon Steel Company is to get and keep its works insured against loss or damage by fire, and the policies assigned or payable to said trustee, for the benefit of the bondholders. Any bondholder is to have the privilege, at any time within one year after the completion of said mill, to take the stock of said company at par in place or lieu of the amount of bonds he may hold, by delivery of such bond or bonds.”

On August 16, 1872, a largo number of the citizens of San-dusky assented to the proposition. Several of them agreed to advance to the Steel Company certain sums of money, and receivo therefor bonds so secured. Among the citizens who had interested themselves in this matter was William H. Mills, one of the defendants in error, who owned lands adjoining San-dusky. In consideration that he was not to be called upon to loan to the company any money, he agreed to and did convey to the company ten acres of his land, on which the rolling mill was to be and was erected, its value then being, it is said, $10,000. And among the subscribers to such loan were Klotz & Kromer, plaintiffs below, who, on October 16, 1872, agreed to lend to the company $5,000, and receive from the company bonds therefor, so secured. They were subsequently released, however, as to one-half of the amount, but performed the agreement as to the other moiety. And it was agreed by ail persons interested that Lester S. Hubbard should be trustee for the bondholders under such mortgage.

On October 28, 1872, the following instrument was signed by stockholders of the Steel Company, owning more than two-thirds of the stock of the company, they being the persons mentioned as guarantors in the proposition already set forth :

“ The Nes Silicon Steel Company, an incorporation duly organized under the laws of the state of New York, located at Rome, Oneida county, New York, having negotiated with Lester S. Hubbard, of the city of Sandusky, Ohio, and others, for a loan of one hundred and fifty thousand dollars, to be secured by the bonds of said company, issued at Rome aforesaid, payable to the said Lester S. Hubbard or bearer, on the first day of January, 1878, with interest at 'the rate of ten per centum per annum, payable semi-annually, for which interest coupons are to be attached to said bonds, the payment of which bonds are to be secured by a mortgage of ten acres of real estate of said company, situated in Sandusky aforesaid, to said Lester S.' Hubbard, as trustee for the holders of said bonds, and which loan was agreed to be made upon condition that the undersigned should personally guarantee, in writing, the payment of said bonds, both principal and interest, and should deposit with said trustee such guaranty for the benefit of said bondholders: Now therefore, in consideration of’the premises and of one dollar to the undersigned and each of us, paid by said Lester S. Hubbard and said bondholders and each of them, and for the purpose of carrying into effect the agreement for said loan, and the condition upon which the same was to be made, we, the undersigned, hereby covenant and agree to and with said Lester S. Hubbard and said bondholders to and do hereby guarantee the payment of said loan, both principal and interest, and of said bonds and each of them, both principal and interest, and of the coupons and each of them attached to said bonds and each of them.”

That instrument was, in October or November, 1872, delivered by the Steel Company to Hubbard, the trustee, who in June, 1874, caused it to be recorded in the office of the recorder of Erie county and filed in the office of the clerk of the court of common pleas of that county.

On October 28, 1872, the Steel Company, by its president, executed, acknowledged, and delivered, in due form, to Hubbard, as such trustee, and to his heirs and successors, a mortgage on the premises, “ with the buildings, engines, machinery, fixtures and appurtenances,” which mortgage contained the following provision : “-Provided always, and these presents are on this express condition, that if the said Nes Silicon Steel Company, the party of the first part, shall well and truly pay or cause to be paid to the party of the second part, as such trustee, his certain attorney, heirs, executors, administrators, successor or assigns, the sum of one hundred and fifty thousand dollars and interest at the rate of ten per cent, per annum, by paying the bonds given by the party of the first part therefor1, and which this mortgage is given to secure, viz.: seventy-five bonds bearing even date herewith, made by the Nes Silicon Steel Company for the payment to L. S. Hubbard, trustee, or bearer, of $1,000 each, on the first day of January, 1878, with interest coupons attached for the payment of the interest semi-annually, and one hundred and fifty bonds of the same date, made by the said Nes Silicon Steel Company for the payment to L. S. Hubbard, trustee, or bearer, of $500 each, on the first day of January, 1878, with coupons attached for the payment of interest at the rate aforesaid, payable semiannually to the said party of the second part, which said sums the said Nes Silicon Steel Company hereby covenants and agrees to pay, then these presents shall cease and be void. And in case default shall be made in the payment of the principal sum hereby intended to be secured, or in the payment of the interest thereof, or any part of such principal or interest, as above provided, then the said party of the second part, his successor, executors, administrators, or assigns, are hereby authorized, pursuant to statute, to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount then due, with costs and expenses allowed by law, rendering the overplus, if any there may be, to the said parly of the first part.”

The mortgage was deposited by Hubbard in the office of the recorder of Erie county, where it was recorded on November 7, 1872.

Clothed with this authority, Hubbard, the trustee, under direction of the Steel Company, proceeded to dispose of the bonds from day to day. Before November 10, 1872, he had received from the proceeds thereof for the Steel Company $8,000 ; before November 19, 1872, he had received $21,000; and on August 6, 1873, he received for the Steel Company the proceeds of the last bond, and had thus received the full sum of $150,000.

On December 19, 1872, it was agreed between Klotz & Kromer, the Steel Company and Hubbard, the trustee, that Klotz & Kromer should present their bills to the company once a month, and that upon approval of the bills by its superintendent, they should be presented to Hubbard for payment out of the money received by him for the bonds. This arrangement, though not incorporated in terms in the writings between the parties, was carried out to this extent, that payments were made by Hubbard to Klotz & Kromer in December, 1872, and each of the months of the year 1873, except January, the payments, as already stated, amounting to $57,769.83, and leaving a balance of $18,761.59. The payment made August 22, 1873, was in full of the amount due Klotz & Kromer, including the fifteen per cent., down to July 23, 1873. Of the amount so received by them, the sum of $16,888, was paid after the whole sum of $150,000 had come to the hands of Hubbard. Hubbard also paid money to divers other creditors of the Steel Company. He died before the commencement of this suit, having in his hands, it is said, no portion of the moneys so received, and William T. West (plaintiff in error) was appointed by the court, in this case, as his successor.

On behalf of Klotz & Kromer,' it was successfully claimed in the district court that the mortgage- was invalid as against the claims of the mechanics and the judgment creditors. ■ The court so held, it is said, on two grounds; first, that the mortgage was given to secure future advances, and that the mechanics’ lien attached before any considerable portion of the bonds had been purchased; and, secondly, that by the statute of New York, under which the Steel Company was incorporated, it is made a condition precedent to a valid execution of a mortgage by the company, that the owners of two-thirds of its capital stock should consent in writing that such mortgage might be made, and that such consent should be filed in the office where the mortgage is to be recorded, at the time or before such mortgage is presented for record.

With respect to the first objection, it is certainly true that this court has held, that where a mortgage is given to secure future advances, a subsequent mortgage will have priority over it as to any advances -made after such subsequent mortgage is placed on record. Spader v. Lawler, 17 Ohio, 371; Choteau v. Thompson, 2 Ohio St. 114; cf. Jones v. Guaranty & I. Co., 101 U. S. 622. We are not disposed to intimate any dissatisfaction with this rule, and, for a reason hereinafter stated, we need Dot express any opinion whether the rule applies to a mortgage of this character.

The other objection to the mortgage, that is, non-compliance with the statutes of New York, referred to in the record, has been discussed at length. Originally corporations of this character in New York were prohibited from mortgaging their property. Subsequently such power was given, and the amendatory act, in force when this mortgage was made, authorized the execution of a mortgage like this. Central Gold Mining Co. v. Platt, 3 Daly, 263. But the latter act contains tho provision, “that the written assent of the stockholders, owning at least two-thirds of the capital stock of such corporation, shall first be filed in the office of the clerk of the county where the mortgaged property is • situated.” 2 Rev. Stats. N. Y. (6 ed.), 501. Sections 22 and 23, on the same page, relating to the filing of such consent, show, it is claimed, that the provision quoted applies as well to mortgages of lands situated beyond the limits of New York as to lands within that state. The statute of that state further provides that mortgages shall be recorded in the office of the county clerk.

The questions as to the construction of these statutory provisions, and their application to mortgages of real estate situated within this state, have been considered. No doubt, if the provisions apply to such mortgages of lands in this state, the recorder’s office is the proper place to deposit the consent, and perhaps recording it on the margin of the record of the mortgage, as in this case, may be a substantial compliance with the statute as to filing, leaving out of view in this statement the matter of time of filing and the form of the consent. So, we would probably have no difficulty in holding that such guaranty signed by stockholders of the company owning two-thirds of its capital stock, and thus recorded, was such substantial compliance with the statute as to the form of the instrument. Greenpoint Sugar Co. v. Whitin, 69 N. Y. 328; Amerman v. Wiles, 24 N. J. Eq. 13. It is also urged that the statute of New York on this subject, however clear its words may be, can have no application to mortgages of lands situated in this "state. The same objection was urged and left undecided in Amerman v. Wiles, supra. Again, it is insisted that this mortgage is in the nature of a purchase-money mortgage, and that as to a mortgage of that character no such written consent is necessary; and, furthermore, that the statutory provisions requiring such written consent were enacted for the benefit and protection of the stockholders, who alone can take advantage of a noncompliance therewith. These views with respect to those statutory provisions are stated in the opinion of the court in Greenpoint Sugar Co. v. Whitin, supra, but the points were not decided. Finally it is urged that in any view the mortgage became effectual, as of November 7,1872, the day it was filed for record, when the guaranty was recorded in the office of the recorder of Erie county.

We do not find it necessary to decide whether the objections to this mortgage might not, under other circumstances, be held as well taken. We are relieved from determining whether the principle declared in Spader v. Lawler, supra, applies to such a mortgage as this, or whether the New York statute, as to making and filing the written consent of stockholders, applies to such a mortgage, or has not been substantially complied with. Klotz & Kromer are, upon the plainest principles of equity, precluded by their acts and agreements with the Steel Company, from asserting such objections to the mortgage. Phillips on Mech. Liens, §§ 273, 495. They joined other citizens of Sandusky in accepting the proposition of the Steel Company to build the rolling mill; they subscribed and paid for bonds issued by the company and secured by the mortgage, and thereby induced others to do the same thing; they are beneficiaries under the mortgage; they received from the Steel Company, in payment of more than two-thirds of their claim, the sum of $57,000, which they knew had been advanced to the Steel Company on the faith that this was a valid mortgage ; they sold to others the larger portion of the bonds they received from the company, and it is fair to say that their purchasers relied on. the mortgage as a security. Under such circumstances, there can be no justice in saying that, because they were not fully paid, as they expected to be, out of the moneys so loaned to the Steel Company, they may, on discovering that the company and its guarantors have failed, assert a mechanic’s lien for the balance of their debt, and thereby defeat the mortgage, which everybody interested in it believed to be valid, until the whole turn of $150,000 had been advanced on the faith of it, and expended.

The judgment must be reversed, and the cause remanded for further proceedings. All the facts with respect to the mechanics’ lien asserted by Barney & Ferris'(defendants in error) are not before us, and hence we are unable to say whether the remarks as to the claim of Klotz & Kromer apply to tlieir claim. We do not think they should be concluded on a further trial by their failure to offer proof on the trial in the district court.- As to the judgment of William H. Mills for $10,000, it is said that it is founded on a claim for the value of the land, but this does not appear. The claim upon which it was founded is, however, a matter of no importance in the case as now presented, for it is stated in his answer that the- judgment only “ became a lien on the premises in said petition described on the 19th day of October, 1874,” and hence, on the facts appearing in the record, his lien is inferior to that of the mortgage. And the views here expressed dispose of all questions as to other judgment liens asserted against the property.-

Judgment reversed. '


text:
    Bascom v. Shillito.
    Where one rendering service for another under a monthly employment, says to his employer that he desires to have his employment made more permanent, and thereupon a specified amount per year is agreed upon, payable in semi-monthly installments, a hiring for a year may be inferred. Express words that the employment should continue for a year are not essential.
    Ebbor to the Superior Court of Cincinnati.
    Silas H. Bascom brought suit in the superior court of Cincinnati against John Shillito & Co., upon an alleged contract of employment of the plaintiff, as a clerk, for one year, and his discharge without cause before the end of the year. The defendants admitted in their answer the employment and discharge, but insisted that the hiring was by the month and not by the year, and that the plaintiff was paid, in semi-monthly installments, in full for five months, at the expiration of which time he was discharged. The jury found for the defendants, judgment was rendered on the verdict, and the court in general term rendered a judgment of affirmance. The record contains the pleadings, testimony, charge requested and refused, and charge given. This petition in error was filed to reverse the judgments.

      Moulton, Johnson & Levy, for plaintiff in error:
    Smith’s Mas. & Ser. *41; Addison on Con. (7th ed.) 684; Story on Con. (4th ed.) § 962c; 1 Parsons on Con. 518; Smith’s Mer. L. (by H. & G.) 532; Bleeker v. Johnson, 51 How. 380; Franklin. Mining Co. v. Harris, 24 Mich. 115; Patterson v. Suffolk Man. Co., 106 Mass. 56; Farwell v. Cash, 5 B. & Aid. 904; Wood on Mas. & Ser., § 134, commented on.

      Ramsey, Matthews & Matthews, for defendants in error:
    Frazer on Mas. & Ser. 28; Chitty on Con. 841; Leake’s Dig. Con. 673 ; Smith’s Mas. & Ser. 46, 48; 4 Wait’s Act. & Def. 396; 2 Parsons on Con. 32; Butterfield v. Marlen, 3 Car. & K. 163; Williams v. Byrne, 7 A. & E. 177; Baxter v. Nurse, 6 M. & G. 935 ; Fairman v. Oakford, 5 H. & N. 635 ; Coffin v. Landis, 46 Pa. St. 426; Peacock v. Cummings, Ib. 434; Beach v. Mullen, 34 N. J. L. 343 ; De Brair v. Minturn, 1 Cal. 450; Kansas P. Ry. Co. v. Roberson, 3 Col. 142; Stark v. Palmer, 2 Pick. 267; Olmstead v. Beale, 19 Pick. 528; Prentiss v. Ledyard, 28 Wis. 131.
   Okey, C. J.

From the record it appears that the plaintiff was employed as entry clerk for the defendants, merchants in Cincinnati, in the fall of 1873, and remained in such employment for six. months, when' he voluntarily left it. ITe was again employed by them in the fall of 1874, at a salary of $75 per month. In February, 1875, his compensation was, on his application, increased by the defendants, acting through Mr. Colclesser, their superintendent, to $1,100 per year, such new service to commence March 1,1875. Under this new arrangement, he remained in the service of the defendants until July 31, 1875, when he was discharged. During all the time he was in the defendants’ employ, ho received payment for his services semi-monthly, as rendered, and the amount paid to him on July 31,1875, was in full for such services to that time. This suit was brought October 1, 1875, aud of course, if there was a valid contract for a year, the plaintiff was entitled to recover. 7 Am. L. Reg. N. S. 148.

The plaintiff testified that when he applied for such increase of salary, he stated that he wanted his situation made more permanent; but Mr. Colclesser testified that he had no recollection tbat such statement was made. There was no other conflict in the testimony, and the above statement contains the substance of all the evidence.

The court properly charged the jury, “that the issue presented was purely one of fact; that it was for the jury to say whether that which took place between the parties, as detailed by the evidence, constituted a hiring for a year; that it was a question of intention, to be determined with reference to all the circumstances and facts of the case; that the jury should consider the previous relationship of the parties, all that was said between Colclesser and plaintiff at each interview, and determine frpm these and all the circumstances whether it was the intention of the parties that there should be a yearly hiring.” But the court further charged the jury that “ a contract for a year will not be implied unless it was definitely agreed upon between the parties,” and “ if the jury find that nothing was said as to the duration of the service, the defendants were entitled to dissolve the relationship between the plaintiff and defendants- at the end of any month.” Furthermore, the court refused to charge, as requested by the plaintiff, that “ if the jury believe, from the testimony, that the plaintiff stated to Mr. Colclesser that he desired his employment to be made more permanent, aud that upon this statement an agreement was made to pay the plaintiff $1,100 a year, then the jury have a right to infer that this constituted a contract for a year.”

The rule, that from the mere fact that a servant has been hired, the law wid presume an employment for a year, is by no means inflexible even in England, and perhaps a hiring for a shorter period will be more readily inferred in this country than in England. There, as well as here, proof of the periods at which payments were to be made, the character of the employment, custom, the course of dealing between the parties, or other fact which may throw light upon the question, is admissible. But in this case the facts recited in the request to charge were in harmony with the presumption, and we entertain no doubt that the plaintiff was entitled to such charge.

The alleged verbal contract was made in February, and was to continue for one year from the 1st of March, but payments were to be made semi-monthly. If this was an agreement within the statute of frauds (as to which see Abbott v. Inskip, 29 Ohio St. 49 ; Cawthorne v. Cordney, 13 C. B. N. S. 406; Banks v. Crossland, L. R. 10 Q. B. 97; Evans v. Roe, L. R. 7 C. P. 138), the objection was not made in the pleadings or on the trial, and will not be determined here. Townsley v. Moore, 30 Ohio St. 184. And whether the defendants desire, or should be permitted, to make the objection hereafter, are questions not before us for decision.

Judgment reversed.


text:
    The C. & M. R. R. Co. v. Himrod Furnace Co.
    On error to reverse a judgment in damages, for a breach, of contract, where a motion for a new trial, based on the ground of an erroneous charge, and because the verdict is unsupported by the law and the evidence, is overruled, and the evidence is made part of the record, and where it appears that the verdict is too large, by reason of error of the court in its rulings, or of the jury, and there is nothing necessarily implying passion or prejudice in the jury, the court may, where it can be done, ascertain from the evidence the amount of such excess, and may, on a remittitur of the same being entered, affirm the judgment as modified.
    Motion to modify judgment.

      R. P. Ranney and S. Burke, for the motion:
    All evidence to prove damages after the suit was commenced was excluded, and for tlie two years ensuing another action is pending. And yet upon the trial, which if not a farce was certainly not a model, a verdict and judgment were rendered for twice as much as the party claimed to be injured when the suit was commenced. Upon this, error was brought, the execution superseded, and upon reservation to this court, it was found that some of the rulings of the court below were erroneous, to the prejudice of the plaintiff in error many thousands of dollars. We state this to be the fact, although no such information is furnished by the entry made in the ease. From that, it does not appear that any error was found; but rather that the defendant, from generosity or a stricken conscience for having got twice as much as it had the face to ask for, voluntarily abandoned about one-sixth of it, and thereupon the court affirmed the erroneous judgment for the remaining five-sixths.
    What we ask, as matter of right, is very plain and simple— that the entry shall show the truth ; that the judgment is found to be erroneous and is therefore reversed ; and that the legal consequences of a reversal shall be ordered, which we claim to be remanding the case for another trial.
    We base ourselves upon the positive provisions of the statutes, which alone give jurisdiction to this court in error cases, and we insist that such a construction shall be given as will harmonize them, and make them consistent with the paramount right of jury trial, secured by the constitution and laws. We do not deny that the court may, in a proper case, reverse in part and affirm in part; but we do deny that an erroneous judgment can be left unreversed, either in whole or in part, and a judgment of affirmance be entered; and we do deny that this indivisible claim made in the pleadings, and carried into the verdict and judgment, can, for the first time, be divided in the error proceeding, by an examination of controverted parol evidence found in a bill of exceptions, so as to authorize a reversal and affirmance in part, or that in this manner the right of the party to a new jury trial can be avoided.
    If the judgment is found to be erroneous it must be reversed, and if “ reversed either in whole or in part,” the statute declares “ the court reversing the same shall proceed to render such judgment as the court below should have rendered, or remand the cause to the court below for such judgment.”
    If there was error, the issue must be found for the plaintiff in error, leaving but one of two courses to be pursued, either to render such judgment as the court below should have rendered, or remand the case for a new trial, and in this case, cither course would result in exactly the same thing.
    A new trial was moved, alleging, amongst other causes, “ error of law occurring at the trial, and excepted to by the party making the application,” and “ error in the assessment of the amount of recovery,” the action being upon contract, and the amount being “unreasonable and excessive.”
    In such cases, the positive injunction of the statute is that “ the former verdict, report or decision shall be vacated, and a new trial granted on the application of the party aggrieved.”
    Language contains no plainer words, or more imperative in their import. It was the duty of the court below to set aside or vacate that verdict, and grant a new trial; and exactly what that court should have done, this court is bound to do. No curative plasters were applied there, and none can be made legally available here.
    But notwithstanding these very plain provisions, imposing . positive obligations, it is said that this court has so construed them as to authorize the affirmance of an erroneous judgment, if the party will remit from it enough to reduce it to what the court thinks, from an examination of the parol evidence found in the bill of exceptions, he might reasonably have recovered.
    And for this purpose, counsel cite us to the cases of Doolittle v. McCullough, 7 Ohio St. 299; Durrell v. Boyd, 9 Ohio St. 72 ; and Pendleton St. R. R. v. Rahman, 22 Ohio St. 446, saying at the same time, that “ there are many other cases where the practice is adopted.” We have examined the cases cited, and some of the “ many other cases,” and without undertaking to reconcile them all, much less to approve what is said in some of them, we have no hesitation in saying that no one of them has gone the length of supporting the proposition above stated.

      Doolittle v. McCullough was an action of trover, commenced before the codo, and tbe only error was in giving damages for tbe whole value of the property, when it stood conceded, and was shown by a written instrument, that a liquidated amount ($250) had been paid by the defendant on account of a purchase of the property. The court thought this equivalent to a restoration of so much of the property, and it being shown that, pending the error proceeding, the plaintiff had remitted that amount from his judgment, the court refused to reverse it.
    To allow the entry to stand, as now made, is not only to antagonize several positive provisions relating to proceedings in error, but to take from the plaintiff in error important legal rights.

      First. Jt presents the anomaly of finding the issue of error or no error with the plaintiff, and then, ignoring that fact, giving judgment for the defendant.

      Second. If the judgment is reversed the plaintiff recovers his costs; and, if affirmed, the statute is equally imperative that the defendant shall recover costs.

      Third. If the judgment is reversed, the condition of the supersedeas bond is complied with, and no liability arises against the surety, while an affirmance leaves him liable for “ the condemnation money and costs.”

      Fourth. An affirmance leaves the judgment below to draw interest, compounded upon any interest included in the amount of the judgment below, while a reversal, even upon the rendition of another judgment here, or upon a new trial, would not, as matter of law, authorize any interest to be included, much less compound interest. This consideration alone amounts to a difference of several thousand dollars, and leaves the lien of a confessedly erroneous judgment to stand against all the property of the plaintiff in error.

      Fifth. A reversal wholly vacates the judgment below, with all its incidents of lien, &c., while a judgment rendered here, if a case was made for it, would be the judgment of this court, and take effect only from its date.

      Sixth. No case whatever is made for invoking the statutory power to render a judgment here, unless the court is prepared to say that in every case whore the judgment is found to be erroneous, and a bill of exceptions embodies the testimony given at the trial, that will be canvassed and an amount found by the court as a basis upon which to render a judgment. That would simply annihilate the right to another jury trial, and to produce additional evidence in support of the defense.
    It is a wholly unfounded assumption that there is anything in the bill of exceptions, or other parts of the record, to show how the jury made up their verdict, or the amount of the different elements entering into it. The testimony relating to docking the ore, as well as that tendered for carriage, covers fifty or sixty pages in print, and is of the most uncertain, indefinite and even contradictory character.
    Solomon’s three things past finding out, would .constitute absolute certainties, in comparison with the ability of any man to declare that he had found out the exact amounts in dollars and cents of the different items of damages which make up 'this verdict.
    Indeed, no two men can take the evidence now, and, com bining calculation and conjecture, come within hundreds and probably thousands of dollars of reaching the same result, either as to what was or should have been allowed.
    The only thing certain is, that the aggregate returned was many thousands, upon any hypothesis, greater than it should have been, measured by the plaintiff’s own claim at the commencement of the action. But how much of this, that, or the other entered into it—how much should be credited to passion, prejudice, or stupidity, no man can tell

      S. O. Griswold, for defendant in error:
    In reply to the argument of Judge Ranney, we beg leave to suggest that, in his complaint, that the entry as it now stands does not show that any error had intervened in the record, he ignores what the court had previously done, which shows that the remittitur was not volunteered, but was filed by the suggestion and allowance of this court on finding that a portion of the damages were excessive and not authorized by law, as a condition of the affirmanee of the balance of the judgment. The entry made is in accordance with the usual practice in such cases.
    The only new point made in the brief is the argument drawn from the phraseology of the section of the code in regard to new trials. The logic of this argument would lead to the conclusion that the trial court, after verdict, could not permit a remittitur and enter a judgment for the balance of the verdict. It is submitted that the provisions of the code as to a new trial do not differ from those of the old practice act, in as far as the power of the court is concerned. The code specifically defines the causes for granting a new trial. In the old practice act the causes were simply stated to be those for which courts at common law had been accustomed to grant new trials, and when one of these was found to exist, the court was required to grant a new trial, and the cause was remanded for that purpose. Sections 114, 115 and 116. The old modes and the code do not differ, so far as the action of the court is concerned, and, as we have shown in our printed brief, this court, from the earliest days to the present time, has upheld the practice of permitting a remittitur after verdict in cases where the verdict could thus be corrected, whether the error intervened from the misdirection of the court, the admission of improper evidence or the exclusion of evidence, or when the damages were excessive from an improper weighing of the evidence. The learned gentleman admits it has been so held by this court, but suggests that the present case goes farther than any other. It is submitted that he certainly does not have in mind all the cases which appear in the reports.

      We desire to specially notice his criticism of the case of McCullough v. Doolittle, which he passes by with the remark that it was a case begun before the adoption of the code. In view of the fact that sections 6726 and 6727 of the Revised Statutes are mere transcripts of the old practice act, and that the proceedings on a motion for a new trial were the same before as since the code, it was, we think, incumbent on the gentleman to show how the difference in form, or rather in name, between the issue upon a plea of not guilty to a declaration in trover, and that upon a general denial by answer to a petition under the code, setting forth the same facts, could affect the rights of the parties or the power of the court in the premises.
    The only other suggestion we desire to notice is the complaint that as the judgment now stands interest is allowed on the amount of the judgment, which was, in part, made up of interest on the sums which the defendant below had wrongfully exacted from us. The judgment, as affirmed, is for the amount which, as was shown, the plaintiff below was justly entitled to recover; and interest thereon is the inadequate compensation given by the law for the long delay and great expense to which the plaintiff below has been subjected.
    The suggestion that the record docs not show precisely the sums paid, upon which the jury based their verdict, must arise from a persistent refusal to read the testimony.
   Johnson, J.

The decision to which this motion relates will be found reported in the present volume, ante, p. 321. Por . a statement of the pleadings, reference is made to the same case, reported in 22 Ohio St. 451.

It appears, that the action below was to recover $75,000 damages for an alleged breach of contract, by which the plaintiff in error was to receive and dock at Cleveland, and to carry on its railroad from thence to Youngstown, Lake Superior ore, at an agreed rate per ton, for. a term of years. The specific breach alleged as a basis for damages, is, that after performing the contract for part of the term, the defendant refused longer to do so, and thereafter exacted, and plaintiff was compelled to pay, large sums in excess of the agreed rate, to the plaintiff’s damage $75,000. This suit was brought in 1868, nearly two. years before the term the contract had to run, had expired. Issue was joined and a final judgment thereon was before this court, and was reversed in Himrod Furnace Co. v. C. & M. R. R. Co., 22 Ohio St. 451. The case was remanded for a new trial. This resulted in a verdict for the plaintiff, assessing his damages at $59,024.22.

A motion for a new trial, based on the following grounds, was filed:

“1. The court erred in admitting evidence offered by plaintiff, to which defendant objected and excepted.
“2. In excluding and ruling-out evidence offered by the. defendant.
“3. In the charge and instructions given to the jury, and in refusing to charge and instruct the jury as requested by defendant.
“4. The damages assessed are unreasonable and excessive.
“ 5. The verdict is against and contrary to law.
“ 6. The verdict is not sustained by sufficient evidence.
“ 7. The verdict should have been for defendant instead of ' the plaintiff.”

The motion was overruled and a bill of exceptions taken, setting out the evidence, and excepting to the charges of the court, and to its refusals to charge.

To reverse the judgment on this verdict, the ease was reserved for decision in this court.

Numerous errors were assigned for such reversal. After full argument and patient consideration, none of them was found to be well taken, except that part of said verdict was unsupported by the law. See case, ante, page 321.

Thereupon the court, on an examination of the evidence, computed the amount of this erroneous part of the verdict, put the defendant in error to his election, either to have the whole judgment reversed, or to remit the amount so found to be erroneous. The remittitur of this amount being filed, the judgment, so modified, was then affirmed. The journal entry, however, only shows the remittitur and the affirmance of the judgment as modified.

The record shows that the damages proved were limited to over-charges actually paid for the services provided for in the contract before the commencement of the action, and that all evidence touching damages for the remainder of the term was excluded.

These items of over-charge may be classified as follows: 1st, amount paid to plaintiff in error for transportation m excess of the agreed rate; 2d, amounts paid to plaintiff in error for dockage, <£•<?., of the ore at Cleveland; and 3d, amounts paid to third persons at Cleveland for dockage, &c.

This third item, as ascertained by this court, including interest from date of payment to the date of the verdict, was $9,192.60, and is the sum remitted, as of the date of the judgment.

Prom an examination of the evidence, it satisfactorily appears that the verdict was the aggregated amount of all the overcharges proved belonging to each of the foregoing classes, together with interest from dates of payment to the date of the verdict. This finding was in strict accord with the charge, which was to the effect that if the plaintiff was entitled to recover, the rule of damages was the amounts paid for transportation, including dockage, with interest from the time of payment.

In the opinion of the court, the petition did not make a cause of action to recover damages for dockage, &c., paid to third persons, and, hence, the court erred in permitting proof of such payments as well as of dockage paid defendant, and in charging the jury that such payments, with interest, could bo included as part of the verdict.

This court, having found that said verdict was erroneous to the amount stated, instead of formally reversing the whole judgment and then proceeding to render a new judgment for the correct amount, simply affirmed the balance of the judgment, after deducting the amount remitted. While the former mode of proceeding would, perhaps, have been in conformity to the usual mode, yet, in legal effect, and in substance, the result is the same, and, as the plaintiff in error recovered his costs, as upon a formal reversal, he is not prejudiced.

It is now claimed that the court, having found error in the amount of the judgment, it was its duty to reverse and remand for a new trial; that, as a court of error, it had no authority to look into the evidence for the purpose of ascertaining the amount of such error, and modifying the judgment accordingly.

It is conceded the court may so modify, by reversing in part, and affirming in part, or by a remittitur, when, by tbe pleadings, or by a special verdict, or by an agreement of the parties, tbe amount of sucb error is ascertained, but it is denied that tbe appellate court can, on error, look into tbe bill of exceptions and ascertain for itself tbe amount of sucb error.

Tbe power of tbe court on error to review tbe evidence is conferred by tbe act of April 12, 1858 (2 S. & C. 1155 ; Revised Stat. § 5301).

Under this statute, tbe court has power, on error, when tbe motion for a new trial is overruled and all tbe evidence is made part of tbe record, to look into tbe evidence, and from it determine whether tbe verdict is erroneous in whole or in part. In determining tbe powers of tbe court, as defined in section 6126 of tbe Revised Statutes, reference must be bad to this act of 1858. Both should be construed together. *

In tbe case at bar, tbe error of tbe jury arose from an error of tbe court, in not excluding from consideration tbe payments made to third persons for dockage at Cleveland.

Tbe amount of sucb error is readily ascertainable.

. If, as is conceded, tbe court may look into and weigh tbe evidence, as well as tbe charge of tbe court, for tbe purpose of determining whether tbe verdict is too great, and therefore erroneous in part, we think it logically follows it may also determine from tbe same evidence, when tbe error is ascertainable, tbe extent to which it is too great.

If, as is conceded, tbe court may, on error, examine and weigh tbe evidence, for tbe purpose of determining whether tbe judgment is too great, or contrary to law in whole or in part, for tbe purpose of reversing tbe same, it may, for equally cogent reasons, when it can be done, ascertain tbe amount of sucb excess, and make its remission a condition of tbe affirmance of tbe residue.

Tbe distinction which it is sought to draw, between tbe power of tbe trial court-and tbe appellate court in this respect, in our opinion, does not exist, in view of tbe provisions of tbe act of 1858.

Tbe charge of tbe court, to include these erroneous items, was “error of law occurring at tbe trial,” which led to “ error in the assessment of the amount of recovery,” and, being in an action upon a contract,” and the damages being too large, as a consequence of such error, and the amount being ascertainable, this court has the same power to correct the error that the trial court had, on the motion for a new trial.

It is not claimed that the verdict was excessive under the influence of passion or prejudice, therefore the power of the court, on error, where the action of the jury is thus tainted, is not in question.

Neither was the amount of this verdict a matter of opinion merely, as in actions of libel, slander and the like, hence the power to order a remittitur in such a case is not involved. The amount of the verdict was a matter of computation from the evidence. It was strictly limited to actual payments made to plaintiff in error, and to others, in excess of the contract rates. This being so, and the error being that of the court in admitting evidence of payments to others, and charging the jury to include such payments, the court may, on error, examine the bill of exceptions, and determine the amount the evidence tended to prove, and may, on remittitur being entered, modify the judgment accordingly. In thus correcting the verdict of the jury its province is not usurped.

The parties have had a fair and impartial jury, uninfluenced by passion or prejudice. > The verdict is erroneous in part, from a cause not affecting their action as to the other part. The error is easily ascertainable by looking into the evidence. By affirming the judgment, as modified by the remittitur, it is reduced to the proper amount legally found by the jury.

That the court has the power to do this, in cases like the present, is too firmly settled to be now disturbed. Marietta Iron Works v. Lorrimer, 25 Ohio St. 621; Smith v. Exchange Bank, 26 Ohio St. 141; Douglas v. Day, 28 Ohio St. 175; Lear v. McCullough, 17 Ohio St. 464; Sibila v. Bahney, 34 Ohio St. 399; Averill v. Verner, 22 Ohio St. 372; Doolittle v. McCullough, 7 Ohio St. 299; Durrell v. Boyd, 9 Ohio St. 72; Pendleton St. R. R., 22 Ohio St. 466; Saymin v. Phillips, 15 Ohio St. 218.

2. Objection is also made to this form of proceeding by reason of its supposed effect on the judgment lien, and on the liability of sureties on the supersedeas bond. This question is not now before us, and we need express no opinion until the question properly arises. A like objection is made because the judgment as modified bears interest from the date of its rendition, and thus it is said interest is compounded. Such is always the case when the judgment is reversed in part and affirmed in part; the part affirmed bears interest from the day it was rendered.

3. Finally it is insisted that there are a number of questions assigned as error, that were left undisposed of.

This makes it necessary to repeat what has already been stated in the published opinion, before referred to, that after a careful consideration of all these questions no error was found, except as stated. Some of them were questions of fact, some were controlled by reported cases, and some were of minor importance, hence the opinion was limited to the single point reported.

Motion overruled.


author: Longworth, J.

text:
    Nolte v. Hulbert.
    S. brought suit against N. and others to obtain a sale of land to Satisfy a judgment lien thereon. To this suit H. was made a party defendant, who, upon receipt of summons, give to C., his regular attorney, certain notes indorsed by him in blank, together with a mortgage upon the land to secure the same, for collection. C. caused a cross-petition to be filed on behalf of H., setting up his mortgage lien. The court, upon trial, ordered the land to be sold to satisfy the liens of S. and H. Pending the suit, H. agreed with N. to extend the note for a year from the time when it fell due. Before the time so extended had expired, N., fearing that the land would be sacrificed, employed a broker, who applied to 0. to find a purchaser at private sale. C. went to J. S. and offered him the land for $3,500, telling him of the mortgage, and saying that he had in his possession all the papers necessary to make a clear title. J. S. paid him the money and directed him to pay off all the claims upon the land, including the mortgage of H., and to obtain H.’s cancellation of the mortgage upon his return, he being then absent. C. paid the costs and the claim of S., but embezzled the remainder of the money.
    Held,—That under this state of facts, C. acted as the agent of ,T. S., to make payment to H., and not as the agent of H., to receive payment from J. S,; and that, as between the two innocent parties, the loss must be borne by J. S.
    Error to the Superior Court of Cincinnati.
    The action in the court below was brought by William P. Hulbert, trustee of Julia Harberon, against Herman Nolte and others, to foreclose a mortgage securing certain notes held by him against Nolte. The mortgaged property had been conveyed by Nolte to Seasongood, and by him to Dallas. These latter were both made parties defendant to the suit.
    The facts of the case, as disclosed by the record, were as follows:
    On January 18, 1812, Nolte delivered to Hulbert his note for $2,500, to secure a loan of that amount, together with certain interest notes, the whole secured by mortgage upon city property ; the principal note was payable in two years afterdate.
    In August, 1873, one Steineke, a judgment creditor of Nolte, brought suit against Nolte to obtain a sale of the mortgaged land to satisfy his judgment lien and for other relief. To this suit Hulbert was made a party defendant. On receipt of summons, he sent for Charles Cist, his regular attorney in such matters, and handed to him the summons, together with the notes indorsed in blank, and the mortgage, and took his receipt therefor for collection. A cross-petition was filed on behalf of Hulbert, asking that if the land should be sold to satisfy Steineke’s lien, his rights might be protected and his claim satisfied from the proceeds of the sale.
    While the suit was still pending, the principal note became due, and Hulbert then agreed with Nolte to extend it for another year. There is no evidence' to show whether or no Cist had knowledge of this agreement.
    In March, 1814, the ease was heard and decided, and the land was ordered to be sold. No entry, however, was made upon the minutes.

      Nolte, thereupon, fearing that the land would be sacrificed, engaged a broker to find a purchaser at private sale. This broker applied to Cist, who went to Seasongood, a capitalist with whom he had had many dealings of a like character, and between whom and himself existed relations of perfect confidence.
    Cist offered the land to Seasongood for $3,500, and told him of the incumbrances upon it. These he agreed to pay ofE out of the purchase-money, and to furnish a certificate that the title was clear. He said that he had in his possession all the papers necessary to make a clear title.
    Thereupon, Seasongood gave to Cist his check for $3,500, the latter agreeing to pay off all the liens upon the property and to obtain from Hulbert a cancellation of the mortgage when he should return to the city.
    The land was then conveyed by Nolte and wife to Season-good.
    Cist paid the costs and the Stein eke claim, but embezzled the remainder of the money and fled the city.
    At the trial below, in general term, the case having been reserved, the court found that the facts did not show a payment of Hulbert’s claim, and that the loss caused by Cist’s dishonesty ought to fall upon Seasongood rather than Hulbert, and overruled a motion for a new trial.
    The proceeding in error is to review this judgment.

      Thomas McDougall, and Jordan, Jordan & Williams, for plaintiffs in error.

      Hoadly, Johnston, & Colston, for defendants in error.
   Longworth, J.

The only question before us necessary to a determination of the case is whether at the time the check was given by Seasongood to Cist, the latter acted as Hulbert’s agent to receive payment, or Seasóngood’s agent to make payment to Hulbert. This is a question of mixed law and fact.

The maxim that no man shall serve two masters ” does not prevent the same person from acting as agent, for certain purposes, of two or more parties to the same transaction when their interests do not conflict, and where loyalty to the one is not a breach of duty to the other.

Thus the doings of Cist as Nolte’s agent to procure a purchaser were not inconsistent with his duties to Hulbert as his agent to receive, or to Seasongood as his agent to make payment.

The fact, if fact it be, that at the time Cist received the check he had full authority as Hulbert’s agent to receive payment, would not preclude Seasongood from choosing to deal with him in a different capacity. He might prefer to deal directly with the principal and to receive his receipt rather than that of his agent; and for this purpose to appoint Cist his agent to make payment. He had only Cist’s statement that he was Hulbert’s agent, and was in possession of the notes and mortgage to evidence the fact of such agency. Suppose he had doubted the truth of these statements, would it not have been competent for him to direct Cist to make payment to Hulbert and to bring him his (Hulbert’s) receipt of satisfaction ? Clearly so.

Seasongood testified: “ I gave Mr. Cist the money at the time he gave me the deed, May 9, 1874; the certificate I got after, and I then believed he had paid off the JJuTbert mortgage,” and further, in cross-examination he said : I took it for granted that he would take the money and pay off the mortgage. 1 trusted Mr. Cist to malm the mortgage pa/yment and get me a dear title.”

It is also worthy of note that this was not the only transaction between Seasongood and Cist. They were in the habit of' dealing together in matters of this kind. Seasongood in another place says, I always gave my check to him (Cist) in similar transactions, and trusted him to clear the title.”

Prom this it is manifest that at no time did Seasongood understand that when he gave his check to Cist he was paying Hulbert’s mortgage; on the contrary, he trusted and expected Cist to make the payment and to obtain for him Hulbert’s cancellation.

This conclusion is perhaps strengthened by the circumstance that but one check was given to cover all the several claims. That Cist was Seasongood’s agent to pay off the costs in the Steineke suit, and the judgment in favor of Steineke is beyond doubt. If he was to act in any other capacity in respect to Iiulbert’s claim, would it not be natural to suppose that separate checks would have been given?

These considerations make it unnecessary to inquire whether Cist actually had authority from Hulbert to receive payment, or whether his possession of the notes and mortgage would have authorized Seasongood to deal with him as such agent.

We are asked to hold that the mere foot of possession of a note by an attorney will protect the maker who pays to the attorney against the claim of the payee, and Patten v. Fullerton, 27 Maine, 58, is cited in support of the rule claimed. We should not be prepared to subscribe to this doctrine, even in a case where the question necessarily arose; nor do we think that Patten v. Fullerton bears it out. In that case the additional and most important circumstance existed, that prior partial payments had been made by the debtor to the unauthorized agent, which had been accepted by the creditor. We should long hesitate to hold that a maker of a note may safely pay it to one who has stolen it from the payee, and who falsely pretends to hold it for collection, in the absence of any other evidence of authority than the bare possession. Yet this is the result of the doctrine as claimed.

True, in the case at bar, the notes had been indorsed in blank by Hulbert, and had Seasongood relied on this and’paid them, he would have been safe; yet it appears that this fact was never known to him or communicated to him by Cist.

Upon the whole case we are clearly of opinion that Seasongood did not deal with Cist in any manner as the agent of Hulbert, or at any time suppose that in delivering to him his check he was paying Hulbert’s claim.

We find no error in the judgment of the court below.

Judgment affirmed.