text:
    The State v. Hutchinson.

      Pure food laib — Act of April 22,1890 — Application of, to whole law —Action under — Form of averment — Definition of adulteration —Construction of statute.

    1. The proviso contained in section 3, of pure food laws of the state, as amended April 22, 1890 (87 Laws, 248), applies to the whole act, and is not descriptive of any particular offense therein defined; and, for such reason, a negative averment of the facts within the proviso, is not required in an affidavit charging an offense against the act; but the facts may be offered in evidence as a'defense under the plea of not guilty.
    2. A charge to a jury that would preclude it from considering “ evidence tending to show that the defendant, in making a particular sale, complied with the requirements of the proviso, is erroneous.
    3. A sale of beer as food, containing salicylic acid in any quantity, without a lebel on the package notifying the purchaser that it contains such an ingredient, is, when found to be poisonous or deleterious to health by its continuous or indiscriminate use, an offense against the pure food laws of the state, under the definition of an adulteration contained in clause 7, paragraph “b," section, 3, of the act as amended April 22, 1890.
    (Decided January 26 1897.)
    Exceptions of prosecuting attorney to the rulings of the court of common pleas of Franklin county.

      F. 8. Monnett, Attorney-general, Joseph Dyer, Prosecuting Attorney, Charles Case and J. K. Bicharás, for the state.

      Samuel Uambleton and Edmund Smith, for defendant.
   Minshall, J.

The defendant, Hutchinson, was arrested on the warrant of a magistrate charging him with a' violation of the pure food laws of the state. The affidavit was founded on the 7th clause of paragraph “b” of section 3, of the act as amended April 22, 1890 (87 Laws, 248). It is charged that the defendant “did unlawfully sell to Willis Sells a package of a certain article of human food, to-wit, beer, which article, so sold as aforesaid, was then and there adulterated by having added thereto a quantity of a certain substance, to-wit, salicylic acid, which is injurious to the health. The said sale of said article as aforesaid was contrary to the statutes in such case made and provided.”

The magistrate charged the jury:

“The law in this state prohibits, as an ingredient of an article of human food, the use of any article that is poisonous or injurious to health. The law does not say that the particular quantity of such alleged injurious substance as may be found present in the one particular sample or quantity of food must be found' to be injurious to health ; and the court is of the opinion that the legislature, in enacting this law, did not intend it to be so understood. The purpose and intention of the law is to prohibit the use of any substance in human foods, whenever the indiscriminate or continuous use of such substance in the food, in any quantity, would result injuriously to health.

“If, therefore, you find from the evidence that the defendant, in the manner and form as charged in the affidavit, did sell beer to which was added salicylic acid, and you further find that salicylic acid is a substance, the continuous or indiscriminate use of which in foods would result injuriously to health, then I charge you that the sale-of such an article of food so adulterated is in violation of law, and you should find the defendant guilty.”

The defendant was convicted, and on error to the common pleas the court held that the charge was erroneous,, reversed the judgment and remanded the cause to the magistrate for further proceedings. To this ruling the prosecuting attorney took a bill of exceptions; and the ease is here for the decision of this court on the ruling so made.

Section 3 of the act contains this provision: “Provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds with the name and per cent, of each ingredient therein, and are not injurious to health.”

It is claimed by the defendant that, in any event, the conviction was properly reversed, because the affidavit did not negatively aver that the beer so sold is an ordinary article of food, and that each package sold was distinctly labeled as a mixture or compound with the name and per cent, of each ingredient therein, and is not injurious to health. On examination it will be found, that the proviso in the statute, on which this argument is based, applies to the whole act, and is not made descriptive of any particular offense made punishable by it. It was not, therefore, necessary that the affidavit should have contained the negative averments as claimed by the defendant.

Becker v. The State, 8 Ohio St., 392; Stanglein v. State, 17 Ohio St., 461; Billigheimer v. State, 32 Ohio St., 435; Hirn v. State, 1 Ohio St., 16. Such facts constitute a defense, and may be proved by the defendant under his plea of not guilty.

The question then arises, whether the magistrate erred in the charge to the jury; We think he did ; but not in what he said, but in what he omitted to say. Under the charge given, the jury would have been required to convict, although it may have been shown that the beer sold was an article of food, and that each package was labeled a mixture or compound with the name and percent. of each ingredient therein, and not injurious to health. The bill of exceptions here does not contain the evidence that was before the magistrate, and was incorporated in the record reviewed by the common pleas ; nor does it purport to set out all of the charge of the magistrate to the jury; nor does it appear whether instructions were asked by the defendant and refused by him. It is entirely consistent with this record that (the magistrate may have been requested to qualify what he said, so that the defendant could avail himself of the provisions of the proviso, if the evidence warranted it. The presumption is that the common pleas did not err ; and we cannot say that it did, unless we know that, in the record before it, there was no evidence tending to show that the defendant was within the proviso of the statute, and so not guilty of the offense charged.

For this reason we cannot find that the common pleas erred. If, however, there was no evidence before the magistrate of the character just adverted to, the charge as given was unexceptionable. A sale of beer as food, containing salicylic acid, without a label on the package notifying the purchaser that it contains such an ingredient, is, when found to be poisonous or deleterious to health by its continuous or indiscriminate use as a food, an offense against the pure food laws of the state under the definition of an adulteration contained in clause 7, paragraph “b,” section 3 of the statute above cited.

Exceptions overruled.


source: Caselaw Access Project

author: Shauck, J.

license: Public Domain

text:
    Bricker v. Elliott, Administrator.

      Suit to compel accounting of trustee — Action appealable.

    A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands, is not an action for the recovery of money only; and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Knox county.
    The defendant in error brought suit in the common pleas court against the defendant in error, alleging his appointment and qualification as administrator of the estate of Indiana Bricker, deceased ; that David Bricker, who was the husband of said Indiana Bricker, and the father of said Hiram, had died in 1878, leaving a will, whereby he devised to said Hiram, real and personal property of great value, but charged with an annuity of $150.00, payable to said Indiana during her life, which said defendant accepted, subject to said charge; that said David also devised to said Indiana, in lieu of dower, certain described real and personal estate for life; that said Indiana survived her said husband about eight years, but was, at the time of his death, very old, and infirm in both mind and body, and continued to be so infirm until her death; that in consequence of such, infirmity she was incapable of managing her said property, or of transacting any business whatever, and that the defendant, her son, assumed the active control and management of all her affairs, including the annuity and property so devised, and continued therein as her agent and trustee from the death of her said husband until her death, receiving in that capacity the proceeds of said annuity and said property of a policy of fire insurance belonging to her; that the plaintiff is unable to state the sums so received by said defendant as such trustee, or the amount paid out by him, or the amount of interest with which he is chargeable, and that the defendant holds and is liable to account to the plaintiff for said annuity, moneys and rents, with interest thereon. The prayer of the petition is as follows:
    “Wherefore the plaintiff prays that the defendant may be required to answer, and set forth fully the amount of rents and profits received by him as such agent and trustee, from the rent of said property as aforesaid, together with the dates and amounts when so received; also state explicitly what payments the defendant has made to the said Indiana Bricker, or on her account, out of said annuity, insurance fund, and moneys arising from said rents and profits, together with the dates and amounts thereof when so paid; and that upon a final hearing of this cause, the defendant be required by a proper decree of this court, and adjudged to account and pay over to this plaintiff all balance that may be found in his hands of said annuity, insurance fund, and moneys arising from said rents and profits, together with, interest on each annual installment of annuity when the same became due and payable; and the interest on said insurance fund, from the date of the receipt thereof, and on said moneys received from the said rents and profits from said property from the dates of the several receipts of the same; and for such other and further and different equitable relief as shall be just in the premises. ’ ’
    An answer and reply were filed, but they did not change the character of the issues tendered by the petition. In the-common pleas the ease was tried to the court. The judgment being unsatisfactory to the defendant there he appealed the cause to the circuit court, where the administrator moved to dismiss the appeal “upon the ground that the action is not one in which the defendant has the right to appeal. ”
    -The order of the circuit court sustaining the motion to dismiss is the subject of the petition in error here.

      John Adams, for plaintiff in error.

      Critchfield <& Graham and Charles H. Follett, for defendant in error.
   Shauck, J.

The administrator in this case stands upon the rights of his intestate, and the question submitted is to be determined as though she had brought the suit in her lifetime. If upon the trial of these issues in the court of common pleas either party was entitled to demand a jury, the appeal was properly dismissed; and that right existed if the action was for the recovery of money only. The adjudications of this court determine that, if the action is for that purpose only, it is triable by jury, even though the principles upon which a recovery is sought are equitable in their nature and origin. They also determine that eases are so triable if the remedy of accounting in equity is not necessary to full and adequate relief even though disclosures from the defendant may he desired.

Chapman v. Zee, 45 Ohio St., 356; Gunsaulus, Admr., v. Pettit, Admr., 46 Ohio St., 27.

But an action is not for the recovery of money only if it invokes the exercise of equitable jurisdiction, which, in cases of this character, must be found, if at all, in that prolific source of equitable jurisdiction — the inadequacy of legal remedies.

In the original petition the plaintiff did not allege .an indebtedness for a definite amount due from the defendant. He alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit, they had not been so in the transactions out of which it arose.

The case alleged showed that the defendant was a trustee; that in consequence of the trust and confidence reposed in him by his mother, he was in possession of funds belonging to her, whose amount he knew, and she did not. The ease was not for money only. It invoked the exercise of equitable jurisdiction to compel the trustee to render an account necessary to the ascertainment of the amount due, and for a judgment for that amount when ascertained. Pomeroy’s Eq., section 1421, and notes.

Judgment reversed.


author: Spear, J.

text:
    The German Fire Insurance Co. v. Roost.

      Fire insurance policy — Exemption in favor of company covering loss by explosion — Construction of contract — Remote and proximate causes.

    1. The meaning of a contract is to be gathered from a consideration of all its parts, and no provision is to be wholly disregarded as inconsistent with other provisions unless no other reasonable construction is possible.
    2. A special provision will'be held to:override a general provision only where the two cannot stand together. If reasonable effect can be given to both, each is to be retained.
    3. A fire insurance policy on a house and contents contained, in the printed portion, a provision that “this insurance does not apply to or cover any loss by explosion, unless fire ensues, and then the loss or damage by fire only,” and had attached thereto a special clause providing “that this policy insures against any loss or damage caused by lightning to the interest of the assured in the property described, not exceeding the sum insured, and subject in all other respects to the terms and conditions of the policy.” There was stored in a certain powder house situate across the street from the buildinginsured and seventy-one feet distant therefrom, over which house neither party had any control, two tons of powder. The powder house was struck by lightning causing an explosion of the powder, by force of which explosion the insured house and contents were totally destroyed.

      Held, That within the meaning of the clause recited, the loss was occasioned by explosion which was not included in the risk, and that the company is not liable.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Richland county.
    The action was upon a policy of fire insurance, with lightning clause attached, issued upon a house and furniture therein, the allegation of the petition as to loss being that “on the 3d day of June, 1890, said house and furniture were wholly destroyed by lightning.” The answer admitted the issuing of the policy as. alleged, and denied the other allegations.
    At the trial a jury was waived and the cause submitted to the court. Being requested to find its conclusions of fact and law separately, the court found as follows:
    “That said policy of insurance was issued by said defendant company as alleged; that the following clause was contained in the general contract of insurance: Section (2). ‘This insurance does not apply to or cover * * any loss caused by explosion, unless fire ensues, and then the loss or damage by fire only.
    “That upon a printed and written slip pasted upon the body of the policy, is the following clause, which is a part of said contract of insurance: ‘It is hereby specially agreed* that this policy insures against any loss or damage caused by lightning to the interest of the assured in the property described, not exceeding the sum insured, and subject in all other respects to the terms and conditions of the policy hereby referred to, i. e. the policy in question.
    “That the insurance was $400 on house and $100 on furniture therein.
    “That the house and furniture was totally destroyed by the force of the explosion.
    “That the house stood on the west side of the street, 40 feet wide and 21 feet from the street; that on the east side of said street and opposite said house was located a powder house. Neither plaintiff nor defendant had any interest in, nor control over said powder house.

      “That shortly before January 3d, 1890, there was stored in said powder-house two tons of powder, and on said January 3d, said powder house was struck by lightning, causing said explosion which destroyed said property as aforesaid.
    “As its conclusion of law the court find:
    “That said damage was not caused by the explosion, as contemplated by the exception contained in said policy, but that said loss was caused by an explosion, occasioned by lightning, and was included in the risk.”
    Judgment for the plaintiff followed, which was affirmed by the circuit court. To reverse these judgments the present proceeding is brought.

      John n. Doyle and Jenner <& Weldon, for plaintiff in error.

      Donnell dk Marriott, for defendant in error.
   Spear, J.

The plaintiff in error urges two propositions, either one of which being found in its favor, would result in a reversal of the judgments: 1. That the proximate cause of the fire, was the explosion, the lightning being only the remote cause, and the loss is, therefore, not within the terms of the lightning clause of the policy. 2. That whether the lightning clause taken alone, would, under the facts, create a liability or not, yet when that provision is considered in connection with the entire policy, it is plain that the loss which occurred was not, within the contemplation of the parties at the time of the. making of the contract, one which was intended to be covered.

1. Respecting the first proposition, it may be said that undoubtedly the rule is, that the proximate and not the remote cause of. the loss is to be regarded in determining liability. As said by Lord Bacon: ‘‘It were infinite for the law to judge the causes of causes, and their impulsions one of another; therefore, it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree.” And it is contended here, with much effect, that the true rule is, that where a new cause has intervened between the fact accomplished and the alleged cause, such 'new cause must be considered the real cause; that in this case the lightning-striking the powder house was inadequate to produce the disruption of the insured property without the intervention of some other and nearer cause; that the force and energy which produced the mischief came, not from the lightning, but from the explosion, and therefore the explosion was a new cause which intervened and hence must be regarded as the proximate cause. While on the other hand, it is insisted that the law seeks the first efficient cause, which will be regarded as the causa prójima, however many other agencies may have intervened, and that, in this case, the lightning was the efficient cause and the other merely incidental, and therefore, the mere agent or instrument through which the cause operated.

Attention has been called to a formidable array of decisions, pro and con, giving a review of the question of proximate and remote cause as the same has arisen and been decided in a great variety of cases, and these decisions bring- before the mind, as a subject of study, the general doctrine of proximate and remote causes. But we would regard it as unprofitable labor to seek through the cases for a satisfactory expression of the rule, since no general rule will be found suited to all conditions, and each case, as it arises, must, after all, be decided upon the special facts belonging to it, and often upon the very nicest discriminations. And it seems not worth while to pursue the point in considering the present case, because, as it appears to us, there is no necessity for such inquiry, inasmuch as the case may be satisfactorily disposed of upon the second proposition.

2. It is contended, in support of the judgment below, that, inasmuch as the lightning clause is not a part of the original policy, but is attached thereto as a modification, it must, therefore, control where it is inconsistent with other portions of the policy, and that it is inconsistent with that part of section two which relates to loss by explosion.

■ It is a rule of construction, founded in reason and resting upon abundant authority, that the meaning of the contract is to be gathered from a consideration of all its parts, and that no provision is to be wholly disregarded because inconsistent with other provisions unless no other reasonable construction is possible; and that a special provision will be held to override a general provision only where the two cannot stand together. If reasonable effect can be given to both, then both are to be retained. Are the two provisions referred to irreconcilably inconsistent? The lightning clause insures against loss or damage caused “by lightning to the interest of the assured in the property described;” but it is “subject in all other respects to the terms and conditions of the policy.” That is, while affording protection to the property insured from the lightning, the ocher terms of the policy are to have full effect. Recurring now to the other provision involved, we find that the insurance “does not apply to or cover any loss caused by explosion, unless fire ensues, and then the loss or damage by fire only.” Here there was no fire..

We think that these two claüses are not inconsistent, but that each can be given effect without destroying the other. Construed together, they make the company liable for any damage to the building and contents in case the same were injured by lightning, but that in no event, would the company be liable if the loss were occasioned by an explosion. The provision is against loss by lightning to the property insured, subject to the terms of the policy; i. e., provided the loss is not occasioned by an explosion. This, it seems to us, gives a reasonable construction to each clause, and does no violence to any part of the contract. We think, also, without stopping to refine upon the doctrine of proximate and remote causes, that, within the meaning of these provisions, the loss in this ease was by explosion, and not by lightning.

And this it is reasonable to assume, must have been the understanding of the parties in the making of this contract, for-, while it is unlikely that either had actually in mind the extent of the peril from the proximity of the powder house across the way, yet no more apt language could have been used to exclude liability for this very peril had the parties contracted with full knowledge of its existence and dangerous character. Construed with reference to the subject matter, the language used is equivalent to a declaration on the part of the company that it will not be held for any loss, whether it comes within the general peril of lightning or not, and without undertaking to consider whether it does or not, if such loss occurs by explosion, unless fire ensues. If fire follow an explosion, then liability attaches; if not, there is none. Nor can it reasonably be urged that the insured did not understand the meaning of the language of this provision, for it is obvious.

He could not as a reasonable man, in the face of such an exception, have expected the company to be liable for any loss, save from consequent fire, if such loss should accrue from explosion. Although the explosion of gunpowder by means of lightning happens but rarely, yet it is a possible peril and sometimes occurs, which fact may account for the company declining to take such risk, while its infrequency may account for the willingness of the insured himself to bear it. But whether the latter actually had the extent of this risk in mind or not, when he entered into the contract, he must be held in law to have assented to an exception which, upon its face, takes risks by explosion out of the perils insured against.

That destruction by explosion, of a house seventy-one feet away from one struck by lightning, should be deemed a natural' result of the lightning, is at least a doubtful proposition. But be that as it may, when there follows in a policy, after a lightning clause, a provision which distinctly excludes liability for loss by explosion, it appears plain that within the contemplation of the parties at the time of the making of the contract, a loss by explosion could not have been understood to be embraced within the protection of the policy.

The' conclusions stated are sustained by abundant authority. True it is that cases are to be found which declare principles of construction which, if applied here, would make the company liable for this loss, if its liability were measured wholly by the lightning clause. But in no case which has come within our observation, and we have examined a great many, has a liability been found to attach where there was a provision excluding liability for loss by explosion, and the loss was caused by fire, or as here, by lightning, taking effect in a distant building, and the damage being wrought to the insured property by an explosion, produced by the fire or the lightning without either of the latter agenciés coming in contact with the insured property: Everett v. The London Assurance, 115 E. C. L., 126; Caballero v. Ins. Co., 15 La. An., 217; St. John v. Ins. Co., 11 N. Y., 516; Briggs v. Ins. Co., 53 N. Y., 446; Montgomery v. Ins. Co., 16 B. Mon., 427; Heuer v. Ins. Co., 144 Ill., 393.

Judgments of the circuit court and of the court of common pleas reversed, and judgment for plaintiff in error. t


author: Burket, J.

text:
    The Lake Shore and Michigan Southern Railroad Company v. Orndorff.

      Damages — Liability for, by railroad — Ejectment from train for refusal to pay fare — Rights of passenger on ticket — Corporation law.

    1. When a person having in charge a child of sufficient age to require payment of fare, takes passage on a railroad, such person becomes liable for the payment of the child’s fare, and upon refusal to pay, both may be ejected from the train at the next station. '
    2. When such person has paid fare, or purchased a ticket which is taken up by the conductor, such conductor must, before ejecting such person and child, return or offer to return to such person, the unused value of such ticket or fare over and above the fares of both for the distance already traveled.
    3. If the ticket is such that a stop-over may be had thereon, the conductor may tender a stop-over check instead of money, but to retain the ticket and expel the parties from the train, renders the company liable in damages.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Fulton county.
    In the month of September, 1891, Sarah B. Orndorff, defendant in error, purchased a ticket for. herself from Kendaliville', in the state of Indiana, to Wauseon, in the state of Ohio, and got aboard one of the regular passenger trains of the plaintiff in error, and took with her into the ear her little boy aged nine years. The conductor came around and took up her ticket and punched it, and demanded half fare for the boy, which she refused to pay. He informed ‘ her that she must pay half fare for the boy, or both get off at the next station, Corunna, six miles east. Upon arriving at Corunna, she still refused to pay, and also refused to get off, and he thereupon removed her and the boy as' gently as possible, using no unnecessary force, she at the same time demanding the return of her ticket, and he ref using to return the same, as it was already cancelled. After she and the boy had been put out onto the platform of the station, she offered to pay the boy’s fare, and they again got upon the train and she paid his fare, and they rode in safety to Wauseon where they left the train and went to their home. The ticket was what is known as a stop-over ticket, entitling her to a stop-over check at any station.
    She afterwards commenced an action against the railroad company for damages for unlawfully ejecting her from the train, resulting in personal injury, and shocking and wounding' her feelings.
    Upon trial in the common pleas court she recovered a judgment for seven hundred dollars, which was reduced to four hundred dollars by the circuit court, and then affirmed.
    Upon the trial the counsel for the railroad company requested the court to charge the jury as follows:
    1. “The plaintiff, Sarah B. Orndorff, being a passenger upon defendant’s train, was responsible for the fare of a child under her charge and control, and upon plaintiff’s refusal to pay the railroad fare of such child, the defendant, by its officers and agents, had the right to remove both plaintiff and the child from the train, although plaintiff had paid her own fare and the conductor had refused to return same to her.
    2. In this ease, the minor child was accompanying his mother from Kendallville to Wauseon,.and boarded the train with its mother at Kendallville, was in plaintiff’s charge and under her control, and she was in law, responsible for his presence in the car, and it was plaintiff’s duty, in law, to see that his fare was paid. The defendant was under no obligation to carry the boy without being paid therefor, - and had a right to demand the fare of the plaintiff, and upon refusal so to ■ do, the defendant had a right to remove both from the train.
    3. If, in effecting such removal, the conductor used no more force than was necessary to overcome the resistance made by the plaintiff, and therein did no bodily injury, then the plaintiff is not entitled to recover, and your verdict should be for the defendant.
    4. It was the duty of the plaintiff, after refusing to pay the fare of her minor son, to leave the train at Corunna, after notice so to do by the conductor, and upon refusing so to do the conductor was justified in removing her therefrom, using-no more force than was necessary to accomplish the same.”
    The court refused to charge as requested, and proper exceptions were taken to such refusal.
    The court charged the jury as to the right of the conductor to eject her and her boy from the train as follows:
    “When the conductor demanded the plaintiff that she pay the fare of, or furnish a ticket for the child - in her charge, her own child, it was her duty so to do, and upon her refusal, and persisting in such refusal, the conductor had a right at the first station to stop and remove both her and the child from the train, if she refused to get off without such removal, providing, .however, that he first restored, or offered to restore to her, the unearned value of the ticket he had taken from her for the ride from Kendallville to Wauseon. Therefore before exercising the right to eject her from, the ear, and before ejecting her from the train it was his duty to either tender her the ticket he had taken, and demand the regular fare of herself and child for the distance they had already ridden, or if he retained the ticket, to tender her the difference between the price paid for the ticket at Kendallville and the regular fare of herself and child from Kendallville to Corunna, or tender her a stop-over check for herself from Corunna to Wauseon and demand the fare of the child from Kendallville to Corunna.
    “If he did none of these things, but retained her ticket, and while so retaining her ticket he ejected the plaintiff and her child from the cars at Corunna, and while in the line of his duty as defendant’s employee, and as such agent or conductor, then she will be entitled to a verdict at your hands. ’ ’
    Proper exceptions were taken to this charge by counsel for the railroad company, and a motion filed for a new trial, which was overruled.
    The judgment having been affirmed by the circuit court, a petition in error was filed in this court, seeking to reverse the judgments below.

      E. D. Potter, Thomas Emery and Geo. G. Green, for plaintiff in error.

      W. W. Touville, for defendant in error.
   Burket, J.

If the charge of the court, as given, was right, there was no error to the prejudice of the railroad company in the refusal to charge as requested. In the charge as given, the court fully concedes the right of the conductor to eject the defendant in error for nonpayment of fare for her boy, but held it to be his duty, before ejecting her, to restore, or offer to restore to her the unused value of her ticket over and above the fare of both from Kendailville to Corunna. •While the court held the. conductor to this duty, it gave him the option to perform the duty, either by returning the ticket and demanding the fare of both for the distance already traveled, or by tendering a stop-over check for herself from Corunna to Wauseon, and demanding fare for the child from Kendailville to Corunna, or by tendering her the difference in money between the price of the ticket and the fare of both from Kendailville to Corunna.

This charge concedes to the company all its rights, if not more.

Upon her refusing to pay fare for the boy, the company had a right to put both off the train at the next station, and collect fare for the boy to that station, but it had no right to confiscate her ticket to Wauseon, and appropriate the same to its own use without compensation to her. Before putting her off the cars, the conductor should have returned to her the unused value of her ticket, either by paying such value to her in money, or by giving her a stop-over check and collecting fare for the boy for the distance already traveled. If the ticket was already canceled so as not to avail her on another train, its return would have been of no value to her, and this the company knew, while she may not have known it. In such case it was the duty of the conductor to give her a stop-over check, or compensate her in money to the amount of the difference between the cost of the ticket and the fares of both to Corunna. As between her and the company, the conductor represented the company, and the rights and liabilities of the parties were the same as if the company had been present and transacted the business through its highest officers; and, therefore, neither the inconvenience of making change, nor the want of authority on part of the conductor to pay the unused value of the canceled ticket, can shield the company from liability. As the ticket was such as to entitle the holder to a stopover at any station, the contract of carriage was not an entire, but a severable contract, and upon notice to the conductor that she desired to stop at an intermediate station, it was his duty to give her a stop-over check; and when he was about to forcibly eject her from the train, it was still more his duty to give her such check. It was his duty before commencing to eject her from the train, to either pay her the unused value of her ticket over and above the fares of both for the distance already traveled, or give her a stop-over check and demand the fare of the boy, and if this had been done, she would most likely have paid the boy’s fare and avoided the diságreable scene which followed. At all events it was her right to have the unused value of her ticket restored to her before being ejected from the train. True, she was in the wrong in refusing to pay fare for the boy, but the company was also in the wrong in retaining the unused value of her ticket, and in ejecting her before returning, or offering to return to her such value, either in money or stopover check. Her wrong did not warrant the company in expelling her from the train without returning ' to her the remaining value of her ticket. The expulsion was, therefore, unlawful, and the company became liable to respond in damages.

There is always liable to be more or less friction between the traveling public and transportation companies, and while railroads should be fully protected in the enforcement of their reasonable rules, passengers must be protected in their rights of property, and against unreasonable annoyances.

The case of Railroad v. Hoeflick, 62 Md., 300, and Wood’s Railway Law, section 353, cited by plaintiff in error, only go to the extent that upon refusal to pay fare for a child, both the child and person having it in charge may be ejected from the train. Nothing is there said as to the right to have the unused fare returned. The charge of the court in the case at bar fully conceded all that is covered by these two authorities.

The following eases are in point, and throw some light upon the question under consideration in this case. 1 Wardwell v. Railway, 46 Minn., 514; 24Am. St. R., 249; Bland v. Railway, 55 Cal., 570; Vankirk v. Railway, 76 Pa. St., 66.

We find no error in the record.

Judgment affirmed.


author: Williams, C. J.

text:
    Ewan v. The Brooks-Waterfield Company.

      Promissory note — Payable to order of maker — Indorsement of maker's name necessary part of its execution, but maker not a regular indorser — Blank .indorsement• of third person —Consideration therefor — Held as surety when — Parol evidence.

    1 The indorsement of the maker’s name on the back of a promissory note payable to his order, and its delivery in that form to another for value, are essential parts of the execution of the note, which then becomes, in legal effect, payable to the holder or bearer ; but the maker does not thereby become an indorser in the legal sense of the term, nor contract any liability but that of a maker.
    2. The undertaking of a third person who places his name in blank on the back of such a note before or at the time it is so delivered by the maker, rests upon the qonsideration which supports the note in the hands of the holder, and prima facie, is that of a surety of the maker for the payment of the note ; and he will be held accordingly, unless he can show a different understanding or agreement between the parties, which it is competent for him to do.
    (Decided January 26, 1897:)
    Error to the Superior Court of Cincinnati.
    The original action was brought by Emma V. Ewan, against George W. Cox and The BrooksWaterfield Company in the Superior Court of Cincinnati, in which she filed the following petition:
    “The defendants, George W. Cox, and The Brooks-Waterfield Company which is a corporation under the laws of the state of Kentucky, are indebted to plaintiff on a promissory note, of which the following is a copy, with all the credits and indorsements thereon:
    “ ‘$3,500. Cincinnati, O., Jan. 25, 1889.
    “On or before May 1st, 1889, after date, I promise to pay to the order of myself thirty-five hundred dollars, at the office of the Globe Tobacco Warehouse. ■
    “ ‘Value received, with interest from date until paid — interest payable every 30 days. Geo. W. Cox.5
    On the back thereof: “ ‘Geo. W. Cox, The Brooks-Water field Co., L. H. Brooks, President.
    “ ‘$700.00. May 17th, 1889. Received on the within note the sum of seven hundred dollars.
    “ ‘$500.00. Sept. 17th, 1889. Received on the within note five hundred dollars.
    “ ‘$300.00 Dec. 21st, 1889. Received three hundred dollars on the within note.5
    “Plaintiff says that the name of The BrooksWaterfield Company was so signed on the back of said note at the time of its execution by said George W. Cox, and said note was delivered to her at the date thereof by said George W. Cox for a valuable consideration, the name of The BrooksWaterfield Company then being thereon.
    “There is due plaintiff from defendants on said note the sum of twenty-one hundred ■ and sixty-one and twenty-five hundredths dollars, with interest thereon from the 21st day of December, 1889, for which she prays judgment.55
    Judgment was rendered against Cox on default, leaving the action to proceed against the company, which answered as follows:
    “Now comes the defendant, The Brooks-Water-field Company, and for answer to the petition admits that it is a corporation under the laws of the state of Kentucky ; but it denies that it was a joint maker with George W. Cox of the note set forth in the petition, and alleges that it distinctly assumed the position of indorser upon said note. It denies that its name was upon the back of said note at the time of its execution by said Cox. It does not know the correctness of the statement of said petition as to indorsements on said note, and denies the same for the want of knowledge, and denies all other allegations in the petition not herein expressly admitted. This defendant denies that it received any notice of the maturity and nonpayment of said note.
    “Wherefore this defendant prays to be hence dismissed with its costs in this behalf expended.” ■ A reply was filed which avers that the company was a joint maker of the note, and denies it assumed the position of indorser.
    On the trial of the issues, the plaintiff put in evidence the note with the indorsements thereon, which are correctly copied in the petition, and testified in her own behalf to the following facts, namely: That she purchased and received the note from Cox on the day of its date, and either paid him its face value in money, or received it for that amount in payment of a previous note then held by her against Cox, which had been given for money she had loaned him ; that the name of The BrooksWaterfield Company was indorsed on the back of the note when she received it, and that she had no conversation with any representative of the company, nor with Cox, concerning the company’s signature, or the agreement under which it was placed on the back of the note; and further, that the credit of $500.00 indorsed on the note as shown by the petition, was paid by the check of the company, made payable to her. The plaintiff gave no further evidence. The defendants offered none, but moved for judgment in its favor upon the plaintiff’s evidence; whereupon, as the record shows, the cause was reserved to the general term for decision on the motion, where the motion was sustained and judgment rendered for the defendant. To -reverse that judgment the case is brought here on error.

      Thomas McDougal; Willis M. Kemper and Richards <& Richards, for plaintiff in error.
    The Brooks-Waterfield Company stands in this case as upon a demurrer to the evidence, it being admitted by The Brooks-Waterfield Company that after it knew that the note was past due, and after it knew that it had not been notified of the non-payment of the note, it voluntarily by its own check paid to the plaintiff, on account of this note, the sum of $500.
    This was a waiver by The Brooks-Waterfield Company of notice of non-payment and an admission by it that it was liable on the note. This principle is elementary. Daniels Negotiable Instruments, vol. II, section 1165; Story on Promissory Notes, section 386, and Chitty on Bills, 564; Vaughn v. Fuller, 2 Stranger’s Rep., 1246; Horford v. Wilson, 2 Taunton, 12; Harvey v. Troupe, 23 Miss., 538; Curtis v. Martin, 20 Ill., 557; Lane v. Stewart, 20 Me., 98; Sherer v. Easton Bank, 33 Pa. St., 134; Bank of U. S. v. Lyman, 20 Vt., 667.
    We are unable to find a case of partial payment on a note in Ohio, perhaps because the doctrine is so elementary, but certainly from the syllabus in Boyd v. Bank of Toledo, 32 Ohio St., 526, the second part of the syllabus in Hudson v. Wolcott, 39 Ohio St., 618, and the syllabus in Bank v. Bank, 49 Ohio St., 351, where promises to pay or indemnify were held to excuse demand, etc., it cannot be doubted that if the partj^ had paid, instead of promised to pay, this court would hold that he had acknowledged his liability, and that he had waived demand and notice.
    That a stranger to the title thus putting his name on the back of a note is not technically an indorser' is clear, and in England such an act is held to be meaningless, imposing no liability whatever. 1 Ames’ Cases on Bills and Notes, 269.
    The rule in Ohio, differing radically from most of the others,"is there characterized as a “legal phenomenon.” Woods’ By les on Bills and Notes, 250 (note).
    As the note in suit was executed in Ohio, the obligation incurred by the defendant must be determined by the laws of this state as declared hy our courts. Bright v. Carpenter & Schurer, 9 Ohio, 139.
    The mere indorsement of a stranger’s name in blank upon a note is prima facie evidence of guaranty. To charge him as maker there must be proof, that his indorsement was made at the time of the execution by ostensible maker; or, if afterward, that it was in pursuance of an agreement or intention to become responsible from the date of execution. Champion et al. v. Griffith, 13 Ohio, 239; Robinson v. Abell et al., 17 Ohio, 43; Greenough et al. v. Smead et al., 3 Ohio St., 415; Seymour & Co. v. Leyman & Michey, 10 Ohio St., 204.
    The same legal principles are reaffirmed in a recent decision, where a stranger to the title signing after negotiation to a payee was held to be an absolute guarantor. Castle v. Rickly, 44 Ohio St., 490.
    The name of Cox on the back of this instrument was an essential part of this execution as a note. 1 Daniels on Negotiable Instruments, section 130;
      Commonwealth v. Dollinger, 118 Mass., 439; Hooper v. Williams, 2 Exch., 18; Bank v. Fowler, 36 Ohio St., 527.
    •' Until-thus completed and delivered to plaintiff, it created no obligation on the part of either Cox or The Brooks-Watérfield Company. Stage v. Oldset al., 12 Ohio, 158.
    The payee of a note is the person to whom it is payable, and the same person cannot be both payer and payee. 1 Daniels on Negotiable Instruments, section 130; Randolph on Com. Paper, Vol. 1, section 153; Pickering v. Cording, 92 Ind., 396.
    A promissory note must have a maker, and it must have a payee who is another person than the maker. Until a promissory -note made payable to the order of the maker has been indorsed and delivered to the order of the maker there is no payee or promisee.
    By special indorsement, a particular person may be made payee, as if his name were originally inserted as such in the note. The maker’s indorsement in blank will make the instrument equivalent to a note payable to bearer. Little v. Rogers, 1 Met. Mass., 108; Pitcher v. Barrows, 17 Pick., 363; Scull v. Edwards, 13 Ark., 24.
    We respectfully submit:
    1. That this note took effect and became legally operative when delivered to plaintiff. The Brooks-Waterfield Company not being then in the chain of title, having no ownership in the note, could not, in the capacity of indorser, vest the title thereto in this plaintiff, and enter into the contract of indorsement, namely, that they had a good title to the instrument.
    2. That were the rule of law otherwise and the question at issue, what obligation defendant intended to assume by its ambiguous indorsement, its unexplained payment on' the note shows that it did not regard itself as assuming merely the obligations of an indorser, and the testimony of Mrs. Ewan shows that she parted with her money fully believing that The Brooks-Waterfield Company were surety for its payment.
    In either view of the case this plaintiff is entitled to recover of The Brooks-Waterfield Company.
    Ramsey, Maxwell & Ramsey, for defendant in error.
    The case cannot be distinguished from Bigelow v. Colton, 13 Gray, 309 (1859), where it was held that —“One who puts his name, before delivery, on the back of a promissory note payable to the maker or order, and indorsed by the maker, is an indorser, and not a joint maker; and his liability cannot be varied by parol evidence.” DuBois v. Mason, 127 Mass., 37; First National Banker. Payne, 111 Mo., 291; Chicago Trust and Savings Bank v. Nordgren, 157 Ill., 663; Hately v. Pike, 162 Ill., 241.
    Counsel for the plaintiff in error are mistaken in supposing that the above cases from Massachusetts and Missouri are based upon statutes of those states, or that they are inapplicable at bar because of differences between those states and Ohio in the course of their prior judicial decisions. In Massachusetts and in Missouri it had theretofore been held, just as it had been held by this court, that parol evidence is admissible to charge a person, who is not a party to a note as an original maker, if he has put his name on the back of the note before its deliverjn But both courts point out the distinction between such a case and that of a «person who puts his name on the back of a note which is payable to the makér’s order. It is true that in 1874 (St. 1874, c. 404), the legislature of Massachusetts passed a statute declaring all persons whose names appear in blank, on the back of promissory notes to be liable as indorsers only, but the decision of the supreme judicial court made in 1859 was of course not based on a statute passed in 1874. Chicago Trust & Savings Bank v. Nordgen, 157 Ill., 663; Thacher v. Stevens, 46 Conn., 561; Armstrong v. Harshman, 61 Ind., 52; Greusel v. Hubbard, 51 Mich., 95.
    If the note be payable to bearer, either in terms or becomes so in effect by being made payable to the makers’ order and then being indorsed by him, in either case the party who places his name on the back of it will be deemed an indorser only. 1 Daniels on Negotiable Instruments, section 707<z.
    The ease at bar is not that of an anomalous indorser, but of an indorser whose name takes a' regular place on the back of the paper, under that of the payee.
    Every one knows that a note made payable to the order of the maker cannot become effective until indorsed by the maker, and when so indorsed by the maker in blank it becomes in effect a note payable to bearer. One who places his name on the back of a note payable to bearer is not an anomalous indorser,
    It is the object of-the law to make the obligations of persons whose names appear on commercial paper as certain and free from doubt as possible. In many states this tendency of the commercial community has found expression in laws, like the Massachusetts act hereinbefore referred to, which declare that every person whose name appears on the back of a negotiable instrument, no matter how anomalously, shall be liable as an indorser only. Early in the history of this state the principle was recognized in Greenough v. Smead, 3 Ohio St., 416.
    But it is said that The Brooks-Waterfield Company had made a payment on this note since its maturity.
    The evidence shows simply that Mr. Cox’s bookkeeper made a payment to the plaintiff by a check which he obtained from The Brooks-Waterfield Company. Whether that payment was made on account of The Brooks-Waterfield Company, or on account of Mr. Cox, to whom The Brooks- . Waterfield Company may have been indebted at the time, does not appear. Such we understand, was the fact.
   Williams, C. J.

The allegation of the answer, that The Brooks-Waterfield Company, by signing its name on the back of the note a'ssumed the position of an indorser, is an admission of the due execution of the note, and of the genuineness of the company’s signature thereon; but the nature of the obligation the company thus contracted, must be determined from the facts attending the • transaction, which, as shown by the record, are substantially, that the name of the company was signed on the back of the note when it was delivered to the plaintiff, and it was purchased and received by her from the maker on the day of its date, without information of any agreement concerning the company’s obligation, other than that derived from the note itself. The note being payable to the order of the maker, was incomplete in its execution until indorsed by him and delivered to another for value; and it was so indorsed when, received by the plaintiff, who paid the maker its full value. The execution of the note being thus completed, then, for the first time became a valid obligation, and in legal effect was payable to the plaintiff or bearer. At that time it bore the signature of the company written on its back. There is here no room for any inference that the note had been previously transferred by the maker to the company, and thereafter indorsed by it' in order to transfer the title. If the company had thus become the indorsee, the note, in due course of business, could only have found its way back into the hands of the maker upon its surrender on payment or other satisfactory discharge, and its indorsement by the company on such surrender would be so entirely out of the usual course of business as to raise a presumption against it. The note being found in the hands of Cox on the day of its date with the company’s name indorsed upon it, is inconsistent with the theory that it had been indorsed and transferred to the company as the owner of the note, or that it had been taken up by payment. A more reasonable inference would be, that the note was then in the maker’s hands with authority from the company to negotiate it for his accommodation. “If a holder produce a note having a blank indorsement of one not the payee, the presumption is that it was made at the inception of the instrument.” Good v. Martin, 95 U. S., 90. So that, upon presentation of this note to the plaintiff, she was authorized to deal with it as belonging to Cox, with the signature of the company indorsed thereon at the time of its execution in order to give it credit and aid in its negotiation; she not having been informed of any different agreement or understanding between the parties.

Precisely what is the nature of the legal obligation contracted by a stranger who indorses his name in blank on the back of a negotiable promissory note before or at the time it takes effect, is a question upon which the courts have widely differed; some holding that his obligation is that of a second indorser; others have held him liable as a guarantor; and still others as a maker with the rights of a surety. The rule established in this state is, that when the name of such third party appears upon the note at the time it takes effect, his undertaking rests upon the consideration which supports the note, and the presumption is he intended to be liable as surety for its payment, and is held accordingly, unless he can show that there was a different agreement or' understanding between the parties, which it is competent for him to do. Bright v. Carpenter, 9 Ohio, 139; Champion v. Griffith, 13 Ohio, 228; Robinson v. Abell, 17 Ohio, 36; Seymour v. Leyman, 10 Ohio St., 284; 15 Ohio St., 515; Castle v. Biddy, 44 Ohio St., 449. And it is said in Randolph on Commercial Paper, section 831, that: “The view which finds most support is probably that which holds the indorsement of a negotiable note by a stranger before or at the time of its delivery to the payee to be prima facie an original undertaking as joint maker with an implied liability as such to the payee and all holders for value.” The present case must be governed by this rule, unless it is rendered inapplicable by the fact that the note in suit -is payable to the order of the maker and his name appears indorsed thereon above that of the defendant in error. There are cases in which that distinction is made. Bigelow v. Collins, 13 Gray, 309; Dubois v. Mason, 127 Mass., 37; Bank v Payne, 111 Mo., 291; Bank v. Nordegen, 157 Ill., 663. These decisions are placed upon the grounds, that the nature of the liability of the parties whose names appear on the back of a negotiable note is conclusively determined by the position of the signatures with reference to those of the other parties when the note takes effect, and, that as a note payable to the maker’s order cannot take effect until indorsed by him, a third person in placing his name on the back of the note previous to its indorsement by the maker, intends to become liable only as a second indorser; he understands that to be the nature of his liability, it is said, and a different intention or agreement cannot be shown by parol proof. In one of the cases, Bank v. Nordgen, supra, the reason of the decision is stated as follows: “Inasmuch as the note can never have validity until the name of the payee appears upon it as an indorser the person writing his name in blank upon the noté understands that when the note takes effect his name will appear upon it as a second indorser, and it is reasonable to conclude that such was the position which he intended to occupy. ” The real foundation on which these decisions appear to rest is, that the maker by placing his name on the back of the note to give it effect becomes the first indorser, and the third person who places his signature on it, though done before that of the maker is indorsed on it, contracts the obligation of a second indorser. It is undoubtedly true that such a note is without any validity so long as it remains in the hands of the maker, and its indorsement and transfer by him to a holder for value is necessary to give it obligatory effect. But it is equally true that by indorsing his name on the back ■ of the note and delivering it in that form to the holder, the maker does not become an indorser in the commercial acceptation of that term. He is nevertheless the maker of the note, his signature on its back being an essential part of its execution, and his liability continues to be that of . a maker only. He does not thereby enter into the contract of an indorser, which is to pay the note if the maker upon demand fail to do so at maturity, and due notice thereof be given. It would be • a useless ceremony, if not a palpable absurdity, to require the holder to make demand of the maker and give him notice of his own default, in order to charge him with the payment of the note. He is liable as maker, without demand and notice, and sustains no other legal relation to the paper; which relation, it must be presumed, is within the knowledge of third persons who place their names on the note while in the maker’s hands. It is no less true that such third person whose name appears on the back of a note of that kind before or at the time its execution is completed by the indorsement of the maker’s name thereon, is not an indorser in the proper and legal sense of the term. There is a popular sense in which the term is used that is sufficiently comprehensive to include "any person who lends his name in any form to another on commercial paper. But courts do not use it in that sense. In its well understood legal and commercial meaning, the indorsement of a note in blank amounts to a contx-act on the part of •the indorser with and in favor of the indorsee and every subsequent holder to whom the xxote is ■transferred, that the indorser had a good title to the instrument at the time of its indorsement, and was competent to transfer that title, which he undertook to do by the indorsement and delivery of the instrument to his indorsee; so that, to give rise to the contract and relation of an indorser, it is necessary that he should have been the payee or' indorsee of the paper. Beckweth v. Angel, 6 Conn., 317; Story on Prom. Notes, section 135. Hence, neither the indorsement of the maker’s name on the back of a note payable to his own order to complete its execution, nor that of a third ■person in blank before or at the time of its execution and delivery, constitutes a regular indorsement of commercial paper, nor creates the contract arising from a reguiar indorsement in blank, the terms of which are distinctly defined by law, • and are therefore not subject to be varied by parol; the indorsement of thé third person, in such case, ’ belongs to tnat class known as irregular pr anomalous indorsements, whose obligation' depends upon the agreement of the parties, and being ambiguous in that respect, parol evidence becomes admissible to show the terms of the agreement’ as actually made by the parties, or other facts showing their intention at the time.

The assumption that the stranger who places his name in blank on the back of a negotiable note payable to the order of the maker intends to contract as a second indorser, is based upon the supposition that he knows the note cannot become effectual without the indorsement thereon of the maker’s name. But, he must also know the latter does not become the first indorser, nor contract the liability of an indorser at all; and, that his own signature placed on thev note before or at the time of its delivery creates no such contract; and since he does not thereby contract the liability of a regular indorser, the presumption that he did not intend to do so would be quite as reasonable and legitimate, as that he intended to do what he knew his act would not accomplish. It is not doubted that such third person may, by proper stipulation prescribe the extent of the liability he intends to incur by his indorsement, and make it that of a second indorser, or whatever else he chooses; but in the absence of such stipulation, the nature of his undertaking, like that of other irregular indorsers must be determined from the circumstances of the case. That neither the order in which the names appear on the back of the .paper, nor the order in point of time in which they were placed there, is conclusive of the relation of the parties to the paper, or to each other, or of the liability incurred where the paper is for the accommodation of the maker, was held in the early case of Douglas v. Waddle, 1 Ohio, 413, and in the late case of Castle v. Rickly, 44 Ohio St., 490. In the first case, a note drawn by Barnes, payable to the order of Waddle, was indorsed by Waddle, and afterwards by Douglass, and then discounted for the maker’s benefit. Douglass paid half of the note after maturity, and sued Waddle for reimbursement, claiming that as second indorser he had recourse on Waddle the first indorser, and that parol evidence was inadmissible to show any different relation between the parties. But the court sustained Waddle in his claim that, as the indorsements were made before the discount of the paper, to give it credit, for the maker’s accommodation, the obligation of Waddle and Douglass was that of co-sureties for the maker, and therefore, Douglass having paid no more than his share of the debt, was not entitled to recover against Waddle. The court said that: “When a note is indorsed and transferred by a payee, the indorsement is an actual contract between the indorser and indorsee of the note, that the latter received it for a consideration paid, and therefore the indorsement, like the making, is evidence of a debt due from the indorser to the indorsee, and the former is bound to pay if the maker,upon demand, fails to do so, and the requisite notice is given the indorser. But when the transaction between the parties is different, when it is a mere accommodation transaction, neither the reason of the rule nor the justice of the case admits of its application.” And the court further said that: “Douglass knew that Waddle did not in fact own the note, but had indorsed it for the accommodation of Barnes, as surety. He knew that he himself indorsed it for the same purpose, and not as owner; it was intended to pay a debt due from Barnes who, and not Waddle, was the person benefited. Douglass himself never had a beneficial interest in the note, and the money paid by him was paid for Barnes.” So, it may be said in this case, the defendant in error must have known when it placed its name on the back of the note in suit, while in the hands of Cox, that its indorsement by him could have no other effect than to complete its execution, and that he would not thereby become a regular indorser of the paper, and that the defendant in error was not the owner of the note, nor had any beneficial interest in it, and therefore could not, and did not, become a regular indorser, but that the effect of its signature on the note was to give it credit, and enable Cox to negotiate it for his benefit. Speaking of irregular indorsements of this character, and of the understanding of parties to them, the court, in Douglass v. Waddle, supra, said: “In this country the parties to this description of paper have usually understood their relation to be that of principal and surety, and upon this understanding have generally acted both in creating the paper and adjusting their liabilities upon it. ” And in Randolph on Commercial Paper, section 888, that author says: “That in a great majority of instances the purpose of all the original parties to such irregular indorsements was to furnish additional security by way of guarantor or surety to the actual or nominal payee.”

That the defendant in error intended and understood its liability to be that of a surety, and not of a second indorser, is manifest from its subsequent conduct. The payment of $500.00 on the note by the defendant in error was made long after the maturity of the note, and after the failure to make the demand and give the notice necessary to charge the company as an indorser. It then was aware that, if its liability originally was that of an indorser only, that liability had then ceased; and it was under no obligation to make any payment to the plaintiff. It is not to be supposed that the cheek was given the plaintiff as a gratuity; the evidence shows that it was a payment on the note, which is a recognition of the validity of the ! demand. The payment, therefore, is at variance i with the claim that the liability of the company I was conditional, dependent upon proper demand I and notice, and amounts to an -unequivocal [acknowledgment of an absolute and unconditional liability at the time of the payment. And this construction by the defendant in error of its obligation is in harmony with what we have considered it to be, both on principle and in view of the former adjudications of this court, that of a surety for the payment of the note. This conclusion has not been reached without a careful consideration of the cases which hold otherwise. But we have found ourselves unable to concur in their holdings, reluctant as we are to differ with the courts by which they were decided, and desirable as it is that there should be uniformity of decision on so important a question of commercial law.

Judgment reversed.


author: By The Court.

text:
    Hagerty, Judge, v. The State ex rel.

      Taxation — Collateral inheritance tax — Validity of act of April SO, 1894 — Constitutional law.

    1. The act of April 20, 1894 (Ohio Laws, 91, p. 169), amending “An act imposing a collateral inheritance tax,” is not repugnant to any provision of the constitution, because of- its discriminations among collateral kindred,
    2. The property ‘which shall pass by sale”' within the meaning of the act is such only as passes in transactions which are in fact gifts, though m form saies, and the act does not restrict the right to dispose of property by sale for a valuably consideration, which the parties, in good faith, deem adequate.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Franklin county.
    The prosecuting attorney filed a petition in the circuit court for a peremtory writ of mandamus, commanding the probate judge to appoint three disinterested persons to view and appraise the personal and real property left by Elizabeth Noble, deceased, for the purpose of assessing thereon the tax provided for by the act entitled “An act imposing a collateral inheritance tax,” passed January 20, 1893, as amended April 20, 1894, said judge refusing to make such appointment because he believed said acts to be unconstitutional and void. A demurrer to the petition . was overruled, and peremptory writ allowed as prayed for.
    A reversal of that judgment is sought here.
    Ha/rrison, Olds & Henderson, for plaintiff in error.
    The tax upon successious is defended upon the broad ground that the state may appropriate to public uses the estates of decedents. Does a power so sweeping exist in this state? The question is, whether, under our constitution, the general assembly may at any moment declare the state to be the universal successor of property upon the death of the present holders, and that thereupon, within the period of a generation, private ownership shall cease.
    Is not the right of private property as opposed to the power of the state to nationalize all property, secure by these provisions? Constitution Art..l, section I; Art. I, section 19.
    Blackstone draws a distinction between the natural and the civil right of property, holding’ that the natural right arising from occupancy or possession ends with death; and that right to control and dispose of property after death originates solely in political establishments. 2 Blackstone’s Com., 11, 12, 13, Christian’s Ed.; Strode v. Commonwealth, 52 Pa. St., 181; Dos Passos on Collateral Successions, Chap. 1, section 2; Lee v. Rail

      road Co., L. R., 6 Com. Pl., 576; 1 Hare’s Amer. Const. Law, 167; 1 Blackstone, 160.
    There are necessarily and equally involved in the idea of an absolute interest in property the right’ of inheritance and the right of alienation.
    The right of inheritance, whatever its origin, is as old as the common law itself. 2 Blackstone’s Com., 11; Maine’s Ancient Law, 183, 190, 259; Genesis ii., 7, xv., 3, 4; 2 Kent’s Com., 320, 327.
    A man cannot attach to a grant or transfer of property, otherwise absolute, the condition that it shall not be alienated, such condition being repugnant to the nature of the estate granted, contrary to public policy, and void. Anderson v. Gary, 36 Ohio St., 506.
    If the act in question is constitutional, then the constitution secures to the people the right of acquiring, possessing and protecting only a life estate in property and violates the right to alien-: ate during the lifetime of the owner, the estate in fee in remainder. It is therefore, unconstitutional and void.
    It is the general doctrine that when a deed, absolute on its face, is delivered to a third party, to be by him delivered to the grantee after the death of the grantor, the delivery is absolute; the grantor retains no control or dominion over the deed in the hands of the depositary; the effect of the conveyance is to vest the estate in the grantee, subject to a life estate in the grantor; the depositary becomes a trustee of the deed for the grantee ; and the delivery of the deed by him, in pursuance of the grantor’s instruction, is to all intents and purposes, as valid as if made by the grantor during his life. Crooks v. Crooks, 34 Ohio St., 610; Ball v. Foreman, 37 Ohio St., 132; Williams v. Schatz,
      42 Ohio St., 47, 51; Wallace v. Harris, 32 Mich., 380; Alsop v. Eckles, 81 Ill., 424; Tooley v. Dibble, 2 Hill, 641; Geisinger’s Est., 11 Pa. C. C. R., 168; Bury v. Young et al., 3 Pac. Rep., 338; Sneathen v. Sneathen, 104 Mo., 201; Duer v. James, 42 Md., 492; Bovee v. Hinde, 135 Ill., 137; 25 Minn., 520; Johnson v. Hines, 31 Ga., 720; Owen v. Williams, 114 Ind., 1791; Shirley v. Ayers, 14 Ohio, 307; Price v. R. R. Co., 34 Ill., 13.
    The validity of ah act which makes such discriminations as are made by the act in question, involves the question of the power of the legislature to make such discriminations when prohibited from so . doing by the second section of the bill of rights; and the question is, therefore, one for final determination by the courts. State v. Ferris, 53 Ohio St., 314.
    A collateral succession tax, exempting direct succession, has been pronounced unconstitutional. Curry v. Spencer, 61 N. H., 624; Knowlton v. Supervisors of Brock Co., 9 Wis., 410; Portland Bank v. Apthorp, 12 Mass., 252; State v. Gorman, 40 Minn., 232; Mr. Cooley on Taxation, 128; 1 Hamilton Works, Ed. 1885, 270.
    Invidious discrimination is not classification.
    That the exemption and supposed classification made in the act under examination is condemned by the Supreme Court, is proved by the principles laid down in the following cases: Costelo v. Wyoming, 49 Ohio St., 202; Bronson v. Oberlin, 41 Ohio St., 481; Commissioners v. Rosch eBros., 50 Ohio St., 103; City of Fenton v. State ex rel. 52 Ohio St., 59.
    The rule prescribed by section'2 of Art. XII, of the constitution, by implication furnishes the governing principle as to equality and uniformity of taxation. City of Zanesville v. Auditor, 5 Ohio St., 592.
    Irrespective of constitutional limitation, taxes must be uniform or equal on .the same class of property or privileges. Loan Assoc. v. Topeka, 20 Wall., 655; Parkersburg v. Brown, 106 U. S., 487; Cole v. Le Orange, 113 U. S., 1.
    Consequently, it is submitted, the grant in article I, section 1, of the legislative authority of this state to the general assembly, including the power to tax, contains the implied limitation that all tax laws should apply equally, impartially, and uniformly to all similarly situated.
    The inherent and fundamental nature and character of a tax is a contribution to the support of the government, levied upon the principle of equal and uniform apportionment among the 'persons taxed. Any other exaction does not come within the legal definition of a tax. Cooley’s Const. Lim., 6th ed., 598, 607, 608, 615; Dillon on Municipal Corp., section 736; Desty on Taxation, section 10; Cooly on Taxation, 2d ed., p. 54; People v. Salem, 20 Mich., 452; Albany Bank v. Maher, 9 Fed. Rep., 884.
    It' has been said that no comprehensive statement of what constitutes a valid classification is to be found in any one reported case, though they all agree that it must not be arbitrary. But an effort has been made to embody such statement in five rules, all of which are supported by judicial decisions, though some authorities rely more exclusively upon one ground, and others upon' another. These rules are as follows:
    1. All classification must be based upon substantial distinctions, which make one class really different from another. •

      2. The classification adopted in any law must be germane to the purpose of the law.
    3. Classification must not be based upon existing circumstances only, or those of limited duration, except where the object of the law is itself a temporary one.
    4. To whatever class a law may apply, it must apply equally to each member thereof.
    5. If the classification be valid, the number of members in a class is wholly immaterial. State v. Hammer, 42 N. J. L., 436; Commissioners of Hamilton Co. v. Rosche Bros., 50 Ohio St., 103; State v. Cal. Min. Co., 15 Nev., 234; State v. Judges, 21 Ohio St., 1; State v. Covington, 29 Ohio St., 102; McGill v. State, 34 Ohio St., 228; State v. Shearer, 47 Ohio St., 275; Brooks v. Hyde, 37 Cal., 366; McCormick v. Busch, 15 Iowa, 127; Randolph v. Wood, 49 N. J. L., 85; Dundee Mortgage Co. v. School District, 10 Sawy., 52; People Cent. Pac. Ry. Co., 83 Cal., 393.
    All authorities agree that the class to which the general laws' are applicable must be real and substantial, and the following description of a general law as contra-distinguished from a special or local law, has been deduced from the authorities:
    1. ' A g’eneral law is one which applies to and operates uniformly upon all members of any class of persons, .places or things, requiring legislation peculiar to itself'in the matter covered by the law.
    2. A special law is one which relates either to particular persons, places or things, or to persons, places or thing’s which, though not particularized, are separated, by any method of selection, from the whole class to which the law might, but for such limitation, be applicable.

      3. A local law is one whose operation is confined within territorial limits other than those of the whole state or any properly constituted class of localities therein.
    It does not make an act the less local or special that its operation is general as far as it goes, nor because it applies to many persons or things. If the persons or things be regarded by the law as individuals, be they few or many, this stamps it as special. Topeka v. Gillett, 32 Kan., 431; Miller v. People, 100 Mo., 439; Nichols v. Walter, 37 Minn., 264; Home Ins. Co. v. People of New York State, 134 U. S., 594.
    Uniformity in taxation requires uniformity in the mode of assessment, as well as in the rate of percentage charged. County of Santa Clara v. Southern Pac. R. Co., 18 Fed. Rep., 385; 13 Fed. Rep., 722; Northern Pac. R. Co. v. Walker, 47 Fed. Rep., 681; Strode v. Com., 52 Pa. S., 181; Mixter’s Estate, 10 Pa. Co. Ct. Rep., 409.
    But, if it be held that the distinction may be made between collateral kindred on the one hand, and kindred in the direct line on the other, in reference to the assessment of such a tax, by exempting the kindred in the direct line, upon the ground that such a distinction has a sanction in reason, on the theory that the moral claim of collaterals is less than that of kindred in the direct line, and the privilege therefore greater, as held, in Minot v. Winthrop, 162 Mass., 116, the exemption or discrimination ceases when the reason of the distinction ceases; and, therefore, a succession tax upon collateral kindred must include all collateral kindred. If any of such kindred can be exémpted, then all of them except those of a single particular degree of relationship may be exempted. Exemption of persons of a class taxed, produces inequality. Cooley on Taxation, 128.
    It is peculiarly a province of the court to determine that such unreasonable exemptions cannot stand. Ry. Co. v. Minnesota, 134 U. S., 418; Reagan v. Trust Co.. 154 U. S., 362.
    Under this constitutional provision, a law which applies to an individual, or to a number of individuals selected out of a class to which they belong, is a special law. State v. California Min. Co.. 15 Nev.. 234; Brooks v. Hyde. 37 Cal., 366; People v. Judges. 17 Cal., 547; Ewing v. Hoblitzell, 85 Mo., 64; Wheeler v. Philadelphia, 777 Pa., 338; Phillips v. Railway Co., 86 Mo., 540; McAunich v. Railroad Co.. 20 Iowa, 338; State v. Mitchell, 31 Ohio St., 592; State v. Wilcox, 45 Mo., 458.
    If the exemptions are invalid, the whole act must fail. Virginia Coupon Cases, 114 U. S., 270; Baldwin v. Franks. 120 U. S., 678; California v. Pacific R. R. Co., 127 U. S., 1; Spraigue v. Thompson, 118 U. S., 90: Livingstone v. Maducah, 80 Ky., 656: St. Louis v. Speigel, 75 Mo., 145; In re Washington Ave., 69 Pa. St., 352; Agens v. The Mayor, 37 N. J. L., 415; Bank v. Hines, 3 Ohio St., 1; Veazie Bank v. Fenno, 8 Wall., 533; Ward v. Maryland, 12 Wall., 418: United States v. Singer, 15 Wall., 111; Township v. Talcott, 19 Wall., 666.
    Moreover, the act authorizes a tax to be collected on the estate of a decedent situated in several counties, for the use and benefit of only the county in which the estate is probated. This question was not decided in the Ferris case. The burden of a tax must be made to rest upon the state at large, or upon any particular district of the state, according as the purpose for which it is levied is of general concern to the whole state, or, on the other hand, pertains only to the particular district. Cooley on Taxation, 105. It is therefore, a general tax for state purposes, and not at all a local tax for local objects. State ex rel. v. Auditor, 15 Ohio St., 482; Revised Statutes, sections, 236, 2820, 3951, 10116, 181a, 2834, 2822, 2823, 2824, 2826, 2827.

      Joseph H. Dyer., Prosecuting Attorney and Henry A. Williams, First Assistant Pros. Atty., for defendant in'error.

      First — By a comparison of the language used in the law passed taxing direct inheritances in this state (91 O. L., 166), and the law in question in this case, taxing collateral inheritances, it will be found that the exact language is used in both, with the exception that in the law under discussion, the features are absent, which were declared as being obnoxious to the constitutional provisions by this court in the case of State ex rel v. Ferris (53 O. S., 314).
    This court in the Ferris ease reached the conclusion that the direct inheritance act was intended by the legislature to be a tax upon the right or privilege to receive property and not a tax upon the property itself, and as a result of that conclusion held to be constitutional all the provisions of the law sought to be assailed upon the ground that it was a tax on property..

      Second — It was next urged that this law was unconstitutional for the reason that it. was an attempt to impose a tax upon the right or privilege to receive property, for general revenue purposes • only, and that therefore it was in conflict with section 2 of article 12 of the constitution.

      It was urged in that case, as in this, that the law was unconstitutional, for the reason that it was in conflict with section 26 of article 2 of the constitution. The court does not discuss this question at length, .but simply cites the case of The State v. Nelson (52 O. S., p. 88): and this, for the reason that through a long line of decisions, whenever this section of the constitution has been questioned, this court has uniformly held that a law was of a general nature when the subject matter of the law was general jn application, and that its operation was uniform when all persons in all parts of the state affected by it, were not exempt from its operation. This is substantially the definition given in the case of Heck v. The State, 44 Ohio St., 536; Adler v. Whitbeck, 44 Ohio St., 539; Driggs v. State, 52 Ohio St., 37.
    We thereto re conclude that this feature of the case is perfectly secure under the former decisions of this court from the objection made as to its being unconstitutional on account of being in conflict with section 26 of article 2.

      Third — The only remaining question to consider is the one upon which this court declared the direct inheritance tax law unconstitutional, and that was for the reason that section 1 of that act was in conflict with section 2 of the bill of rights which provides that “All political power is inherent in the people. Government is instituted for their equal protection and benefit.” (53 Ohio St., 314, 336.) The graduated scale of assessing taxes and also the exemption of the first twenty thousand dollars was held to be not for the equal protection and benefit of all the people upon whom this law operated, and therefore the law was not upheld. These two particular features are absent from the act under discussion, and in place of the graduated scale, the legislature substituted a tax of five per centum of the value of said estate, and substituted in place of the exemption of the first twenty thousand dollars, the exemption of the first two hundred dollars, which is the constitutional exemption allowed to all persons in the state. (Article 12, section 2.) It is only the property that passes to such collateral heirs, or to a stranger that is taxed, that this property, is to be divided only after administration on the estate. State v. Hamlin, Exr., 86 Me., 496; Scholey v. Rew, 23 Wall., 331; State v. Telegraph Co.; Brewer Brick Co. v. Brewer, 62 Me., 74; 2 Blackstone, Com., 10, 11, 12, 13, 515; Edwards v. Freeman, 2 P. Wms., 442; Eyre v. Jacob„ Sheriff, 14 Grat., 422; Matter of McPherson, 104 N. Y., 306.
    Taxes upon legacies and inheritances have been approved generally by writers upon political economy and systems of taxation, and no tax can oe less burdensome and interfere less with the productive and industrial agences of society. (Williams’ Case, 3 Bland’s Ch’y R., 186, 259. Carpenter v. Comm. of Penn., 17 How., 456; Clapp v. Sampson, 94 U. S., 589; Wright v. Blakeslee, 101 Id., 174; Mason v. Sargent, 104 Id., 689; In re Short’s Estate, 16 Pa., 63; Stinger v. Comm., 26 Id., 422; Comm. v. Freedley, 21 Id., 33; Strode v. Comm., 52 Id., 181; Miller v. Comm., 27 Gratt., 110; Tyson v. State, 8 Md., 578; State v. Dorsey, 6 Gill., 388; Williams’ Case, Bland’s Ch. R., 186.
    The position for which we contend is also upheld in Minot v. Winthrop, 162 Mass., 113; Tyson v. State, 28 Md., 577; State v. Dalrymple and Lemmon, Administrators, 70 Md., 294; Pullen
      v. Commissioners of Wayne County, 66 N. C., 361.
    The only court of last resort wherein legislation of -this kind has not been upheld, so far as we have been able to find, is in the case of Curry v. Spencer, 61 N. H., 624.
    The decision of the court in that case rests entireLy upon a strained construction of the constitutional provisions of New Hampshire with respect to taxation, and of article 12 of their bill of rights, and upon the authority of the case of State v. Express Cos., (61 N. H., 219.)

      Fourth — It is urged by counsel in argument that this legislation is invalid because the tax which it levies is for a general purpose, but the act provides that 25 per centum of the tax collected under it shall be placed to . the credit of the county expense fund of the county in which the tax is levied and 75 per centum thereof shall be paid into the state treasury to the credit of the general revenue fund. This contention, we think, is settled by the decision 6f this court in the Ferris case.
   By The Court.

The only'question raised by the demurrer is the constitutional validity of the legislation referred to. Its validity is denied because of the provisions of the first section of the amended act, which is as follows:

1 ‘Section 1. That all the property within the jurisdiction of this state, and any interest therein, whether belonging to inhabitants of this state or not, . and whether tangible or intangible, which shall pass by will or by the inter-state laws of this state, or by deed, grant, sale or gift made or intended to take effect in possesion or enjoyment after the death of the grantor, to any person in trust or otherwise, other than to or for the use of the father, mother, husband, wife, brother, sister, niece, nephew, lineal descendant, adopted child, or person recognized as an adopted child, and made a legal heir under the provisions of section 4182 of the Revised Statutes of Ohio, or the lineal descendant thereof, or the lineal descendant of any adopted child, the wife or widow of a son, the husband of the daughter of the decedent, shall be liable to a tax of five per centum of its value, above the sum of two hundred dollars, seventy-five per centum of such tax to be for the use of the state, and twenty-five per centum for the use of the county wherein the same is collected and all administrators, executors and trustees, and any such grantee under the conveyance made during the grantor’s life, shall be liable for all such taxes, with lawful interest as hereinafter provided, until the same shall have been paid as herein after directed. Such taxes shall become due and payable immediately upon the death of the decedent, and shall at once become a lien upon said property, and be and remain a lien until paid.”

Most of the objections urged against the validity of the act are answered in State ex rel v. Ferris, 53 Ohio St., 314. The act there held invalid made an inhibited distinction as to the value of the property received, the right to receive being there, as here, the real subject of the imposition. No such distinction appears in this act, which lays a uniform tax upon the reception of all amounts above 4 two hundred dollars, and that exemption is expressly authorized by the constitution in the levying of taxes upon property.

This act* is said to be invalid because of its discriminations among the collateral kindred, the tax being imposed upon the value of the property-received by some and not upon that received by others. rI he power exercised by the general assembly in this instance is legislative and vested by the first section of the second article of the constitution. Since the right to receive property by inheritance is not guaranteed by the constitution, it prescribes no limitation upon the power of the general assembly to designate the persons who may thus receive. The discrimination is based upon, and justified by, the fact that there are degrees in collateral kinship.

It is further objected that the act is invalid because the provision that all property “which shall pass by will * * * sale or gift” shall be subject to the imposition, invades the owner’s guaranteed right to sell and convey property, which right is embraced within its enjoyment. But the meaning of the word “sale,” as used in the statute, is to be determined by the maxim noscitnr a sociis, and it includes only transactions which, though, in form sales, are in fact gifts. Since the act is within the legislative power granted, and not within the letter or spirit of any limitation hereon, it is valid.

The conclusion of the circuit court is well sustained by its opinion in the ease. 12 C. C. R., 606.

Judgment affirmed.


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    Farley et al., Executors v. Lisey, Executrix.

      Testimony — Incompetency of — By one executor against another— Sec. 524®, -Rev. Stat.

    1. In an action by one executor or administrator against another, the parties are adverse within the purview of section 5242, of the Revised Statutes, and neither is competent to testify against the other to any matter not within one of the exceptions contained in that section.
    2. When such party is called to give testimony not permitted by either of the exceptions, an objection by the adverse party to the proposed testimony on the ground that it is incompetent, is sufficient; it is not necessary to object to the witness as incompetent.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    Suit was brought in the court of common pleas of Cuyahoga county, by Farley, as executor of the estate of Mary A. Montpelier, against Isaac Lisey, to recover rent alleged to be due under a lease made by the plaintiff’s testator to the defendant, of premises in the city of Cleveland. The petition sets up the lease, and alleges that a certain modification of it, by which the rent was reduced, and an additional covenant entered into by the lessor, was without consideration; and seeks to recover according to the original lease. That allegation was denied by answer, and a breach of the additional covenant averred by reason of which the lessee was discharged from the payment of the rent sought to be recovered. Before the trial, the lessee died, and the executrix of his estate was made the party defendant, and the suit thereafter prosecuted against her. At the trial, the plaintiff was called as a witness in his own behalf to testify to conversations which it was claimed had occurred between him and the lessee, and between the parties to the lease in his presence, touching the consideration for the modification of the lease; and for the purpose of showing it was without consideration. The proposed testimony was objected to by the defendant, as incompetent, and the objection was sustained. Judgment having been rendered for the defendant, which was affirmed by the circuit court, the plaintiff prosecutes error here, assigning the exclusion of the testimony referred to as a ground of reversal, with others.

      II. O. Bunts and Boynton <& I-Iorr, for plaintiffs in error.
    In the case at bar the adverse party is an executor, but is J. H. Farley, executor, such a party as the inhibition of this section was intended to reach?
    Manifestly, the intent and purpose of this provision was, to prevent the living adversary from taking advantage of the death of his opponént when their differences should become the subject of litigation.
    Can it be faiily contended that Mr. Farley, in this case, is such a part j as this provision had in mind? He was not a party to the transaeton out of which this litigation arose. He never had an interest adverse to the defendant’s testator. This contention is not one between Mr. Farley and the defendant. It is a contest between the estates of two late adversaries, both of whom are dead. The beneficiaries under the will, or creditors of the estate, are the real parties in interest, yet they are competent witnesses — while one who occupies the position of a “figured-head” to the action — a nominal party in fact — is to be held incompetent.
    Is not the absurdity of this claim apparent when we reflect that by the mere act of resigning his trust this witness establishes his competency?
    If this be the law, then this estate in order to gain the advantage of the testimony of this witness must first be dep lived of his services as executor, which, presumably, he is peculiarly qualified to discharge. Abbott on Trial Evidence, 61; Bank v. Hunt, 25 Mo. App., 170; Theiman v. Meier, 25 Mo. App., 306; Powers v. Sheeler, 55 N. W., 817; Chase v. Chase, recently decided (1894) in the Supreme Court of New Hampshire.
    The same ruling upon similar statutes was made in the following cases, viz.: Weltsie v. Weltsie, Exr., 1 N. Y. S., 559; Hoyt v. Davis, 30 Mo., App., 309; Davis v. Gallagher, 9 N. Y. Sup., 11; Miller v. Miller, 1 Pa. Dist., 95; Haines v. Watts, 26 Atl. Rep., 572; Bowers v. Schuler, 55 N. W. Rep., 817; Bowie v. Bowie, 26 Atl. Rep., 405; Kenyon v. Peirce, 17 R. I., 794.
    We believe that a fair consideration of the Ohio decisions on this subject will disclose that so far as they involve this question, their reasoning sustains our position. Stevens et al v. Hartley, 13 Ohio St., 531; Baker Admr. v. Kellogg, 29 Ohio St., 664; Wolf v. Powner, 30 Ohio St., 476; Rankin v. Hannan, 38 Ohio St., 441; Roberts v. Briscoe, 44 Ohio St., 600; 17 Ohio St., 640; 21 Ohio St., 658; 18 Ohio St., 73; 22 Ohio St., 221.

      George B. Solders and Thomas H Hogsett, for defendant in error.
    Was there error excluding Parley under section 5242?

      It is contended Parley was not a party to the transaction out of which the litigation arose. He (individually) never had an interest adverse to the lessee, deceased. The contention is not between Parley, individually, and the defendant in error.
    Granted — the answer to this claim is: Parley represents in this litig’ation, and seeks to enforce the rights of the lessor, deceased, and not his individual rights ; and if Parley resigns as executor, he is competent. Yes, but why? Because he no longer represents or stands in the shoes of lessor, deceased (9 Ohio St., 561); has no interest either by way of commissions as executor, upon moneys accounted for, or otherwise, which would bias, prejudice or swerve him, consciously or unconsciously, and he would not be the adversary party. 9 Ohio St., 558; 11 Ohio St., 625; 42 Ohio St., 308; 13 Ohio St., 264; Staphens v. Hartley, 13 Ohio St., 531; Bell, Admr. v. Wilson, 17 Ohio St., 640; Baker, Admr. v. Kelley, 29 Ohio St., 663; Thompson v. Thompson, 18 Ohio St., 73; Doughman, Admr. v. Doughman, 21 Ohio St., 658; 22 Ohio St., 221; Wolf v. Powner, 30 Ohio St., 472 ; 38 Ohio St., 438; 41 Ohio St., 368; 42 Ohio St., 211; Roberts v. Briscoe, 44 Ohio St., 600.
    Said Ohio cases support the following conclusions.

      a. Section 5242, proceeds upon the principle of mutuality of rights.
    v b. That where the adverse party is an executor or administrator, the opposite party (who must be the real, and not merely formal or unnecessary party), cannot testify.

      c. That both the party disqualified (Parley), and the adverse party must be ■ parties to the record, and adversely interested in the determination of the issues of fact.
   By The Court.

At the trial, tne defendant as executrix, was a party to the action adverse to the plaintiff, within the purview of section 5242, of the Revised Statutes, and the testimony excluded does not come within either of the exceptions contained in that section. True, the plaintiff was prosecuting the action in his representative character as executor of the lessor; but the issues in the action were joined between him, as such, and the defendant; and he was interested in maintaining the issues in his behalf, not only in his representative capacity, but individually also to the extent, at least, that his compensation was affected by the amount recovered in the action. The statute has reference to the adverse character which the parties sustain toward each other as parties in the action at the time of the trial, and not necessarily to their relation as parties to the transaction which is the subject of the action or defense; and unless these parties were adverse, there were none in the action, for they were the only parties. It is said the plaintiff might have resigned as executor, and then he would have been competent to testify as desired; but then he would no longer be a party to the action, and therefore not within the inhibition of the statute. But being a party to the action when his testimony was offered, it was properly excluded. The objection to the testimony he was called on to give, on the ground that it was incompetent, was sufficient; it was not necessary to make an objection to the competency of the'witness. He was not incompetent to testify to any matter falling within any one of the exceptions in the statute, and there might be room for contention thab a general objection to the witness was too broad. The testimony which was sought to be elicited from the witness was incompetent, and an objection to it on that ground properly called for its exclusion.

Other questions arising upon the record were argued, and have been considered. But, as to them, we deem it necessary to say only that we find no prejudicial error.

Judgment, affirmed.


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    No. 3542.
    Mutual Reserve Fund Life Association v. Snyder.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Fulton county.

      Foraker & Pryor, 3. IP <& T F. 3am, for plaintiff in error.

      Wash <& Lentz; W. W. Touvelle a,nd Files <& Fuller, for defendant in error.
   Judgment affirmed.


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    No. 3548.
    Stewart v. Village of Ashtabula et al.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Ashtabula county. j

      Edward 3. Fitch and W. W. Boynton, for plaintiff in error.

      Worthioay <& Williams, for defendants in error.
   Judgment affirmed.


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    No. 3555.
    Railroad Company v. Reppert, an Infant
    (Decided June 9, 1896.)
    Error to the Circuit Court of Washington county.

      E. W. Strong; Eye ds Follett; Edward Colston and Judson Harmon, for plaintiff in error.

      Ellenwood ds Smith and William B. Loomis, for defendant in error.
   Judgment affirmed.


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    No. 4001.
    Evans, Admr., v. Jones et al.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Van Wert county.

      Hash ds Lentz; G. M. Saltzgaber and L. G. Addison,, for plaintiff in error.

      Glenn ds Wolcott; John Da/rnell and Sweet ds Blackly, for defendants in error.
   Judgment affirmed.


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    No. 4044.
    Noe et al. v. Powers.
    (Decided June 9, 1896.)
    Error to the Circuit Court of Hamilton county.

      L. H. Pummill, for plaintiffs in error.

      A. J. Cunningham, for defendant in error.
   Judgment affirmed.


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    No. 4073.
    Haines et al. v. Reiff.
    (Decided June 9, 1896.)
    Error to. the Circuit Court of Seneca county.

      Seney da Sayler, for plaintiffs in eyror.

      Breioer dé Brewer, for defendant in error.
   Judgment affirmed.