text:
    The Toledo & Ohio Central Railway Co. v. Wren.

      Dtity of railroads to extend freight facilities — Section 3373-1, Revised Statutes — Action for damages for discrimination — Recovery for actual loss — Measure of damages — Law of common carriers.

    1. (it is the duty of a railroad company both under the common law, and by statute in this state, — Section 3373-1, Revised Statutes,— to extend to all persons, without favoritism or discrimination, equal opportunities and facilities for receiving and shipping freights of all kinds of the same class.^)
    2. In an action against a railroad company, by a person engaged in the handling and shipping of hay, grain and straw, to recover damages for alleged discrimination against him by the company’s giving to other shippers, handling and shipping the same kind of freight, special or unequal preferences in the distribution and delivery of cars, the plaintiff is only entitled to recover as damages such sum as will compensate him for the loss or injury actually sustained as the result of such discrimination, except, that in any such action, if discrimination be proved, the recovery shall not be less than five hundred dollars.
    3. In such action, where there is no allegation of special damages,— the measure of damages to which the plaintiff is entitled, is the difference between the market value of the hay and straw that would have been transported in the cars the plaintiff should have received, at the point to which they were to have been • carried, at the time when they would have reached their destination, and the market value of said hay and straw at the same time at the place from which they were to have been carried, less the cost of transportation between the two points.
    (No. 10590
    Decided April 14, 1908.)
    Error to the Circuit Court of Wyandot county.
    Suit was brought by the defendant in error John Wren, in the court of common pleas of Wyandot county to recover from the plaintiff in error as a common carrier, damages for alleged unlawful discrimination against him in the matter of the furnishing of cars for the shipment of hay and straw. The petition of plaintiff after averring the corporate capacity of the defendant railway company, that it is a common carrier, etc., contains, by way of statement of his cause of action, the following averments:
    “John Wren, the plaintiff herein, lives in the town of Deunquat in said Wyandot county, and which town is and for many years has been a station on said defendant’s railway at which it has received freight and especially hay, straw and grain. The said plaintiff has for a long time been engaged at said town of Deunquat in the business of buying and shipping grain and hay and straw. There is no line of railway except that of the defendant’s extending through the said town of Deunquat.
    “Said plaintiff has expended a large sum of money in building and maintaining an elevator, warehouse and other things necessary for the proper caring for and shipping of grain and hay at and from said station. ■
    “There is a sidetrack, which was built many years ago at the joint expense of this plaintiff and deféndant, extending along the side of plaintiff’s elevator and warehouses and connecting with defendant’s main tracks, which was placed there by the parties to this suit for the purpose of running cars upon to be loaded and unloaded of freight. •
    “This plaintiff receives large orders for hay and straw to be shipped to various points in Ohio and elsewhere, and which he can only ship over defendant’s line of railway.
    “The town of Deunquat is located two and one-half miles from Sycamore, about eight miles from McCutchenville; about four miles from Lemert; and about fourteen miles from Bucyrus; all of which towns are stations on the defendant’s line of railway, and at all of which places the defendant receives for shipment hay and straw, all conditions at said places being the same as those at Deunquat for shipping said hay and straw.
    “Plaintiff says that for three months prior to the filing of this petition said defendant has refused to furnish any cars to this plaintiff to be loaded with hay and straw, though this plaintiff has requested defendant to furnish him cars at Deunquat to be loaded with hay and straw, notifying the defendant daily of his need for said cars.
    “During said period of three months prior to the filing of this petition this plaintiff has had a large number of orders for hay and straw to be shipped to various points in Ohio and elsewhere, but through this defendant’s refusal and that alone, he has been prevented from filling the orders of his said customers.
    “This plaintiff as a buyer contracted to buy the hay crops, 1905, from many of the farmers in the vicinity of Deunquat, and through said refusal of the defendant to furnish cars for shipping as aforesaid, he has been prevented from carrying out his said contracts to his great and irreparable damage.
    “During the said period of three months the defendant has furnished many cars to be loaded with hay and straw at the other stations herein-before named, and which have been loaded with hay and straw for shipment from said stations, though this plaintiff has absolutely received no cars for said purpose, though he has ordered cars daily from the defendant, and he was ready and willing to load said cars and pay the legal charge for the same.
    “By reason of being discriminated against as above set forth this plaintiff has been damaged in his business of the sum of fifteen thousand dollars, for which he asks judgment.”
    To this petition the following answer was filed:

      “Now comes the above named defendant and for answer to the plaintiff’s petition says:
    “The defendant admits that it is a corporation, as alleged in the petition, and that it operates a line of railroad from Toledo, Ohio, in a southerly direction through Wyandot county. Defendant admits that Deunquat is and has been for many years a station on defendant’s railway at which defendant receives and discharges freight. The defendant admits that the plaintiff is engaged in the business of buying and shipping grain, hay and straw. Defendant admits that there is a sidetrack extending along the line of railroad at the station of Deunquat. Defendant admits that Sycamore, McCutchenville, Lemert and Buey rus are all stations on the line of defendant’s railway.
    “The defendant denies each and every other allegation in said petition that is not hereinabove specifically admitted to be true.
    “Wherefore the defendant having fully answered, prays to be hence dismissed with its costs.”
    Upon the issues thus tendered and presented the cause was tried and submitted to a jury and a verdict was returned in favor of the plaintiff for the sum of two thousand dollars. A motion for new trial was made and overruled and judgment was entered by the court of common pleas upon said verdict. This judgment was affirmed by the circuit court. The Toledo & Ohio Central Railway Company prosecutes the present proceeding in error and asks that the judgments of the courts below be reversed and that final judgment be entered by this court in its favor.

      Messrs. Doyle & Lewis and Messrs. Finley & Gallinger, for plaintiff in error.

      Mr. D. C. Parker and Messrs. Carter & Goodrich, for defendant in error.
   Crew, J.

It is a part of the common law duty of railroad companies to afford to all shippers, without favoritism or discrimination, equal opportunities and facilities for receiving and shipping freights of the same kind and class. In this state such duty is declared and specifically enjoined by Section 3373-1, Revised Statutes, which provides that: “It shall be the duty of all railroad companies and of all persons operating a railroad, to secure and extend to all persons, companies and corporations, the same and equal opportunities and facilities for receiving and shipping freights of all kinds, of the same class (and the same and equal opportunities and facilities for receiving and shipping freights of all kinds of the same class), that such railroad company or the person operating such railroad, extends to, has used or enjoys, of and concerning freights owned by such railroad company, or the person operating such road or any of the officers or stockholders therein, or in which it, they or either of them have any interest and any railroad company or person operating any railroad failing to comply with or observe the provisions or requirements of this section, shall be liable in a civil action to the party injured for the damages sustained, but for any violation of this section the recovery in any such action shall not be less than five hundred dollars.” It is the claim of counsel for plaintiff in error, that a proper interpretation of this statute will not permit the recovery of the penalty therein provided, except only in cases where the discrimination alleged and proved, is a refusal on the part of the railroad company to furnish to the shipper equal opportunities and facilities for the shipment of freight, that such railroad itself uses or enjoys of and concerning freights owned by said company, or the officers or stockholders therein, or in which it, they, or either of them have an interest. That it was not the legislative intent that this statute should be thus limited in its operation and effect, and that the legislature did not in fact so contemplate or enact, becomes apparent we think from a brief consideration of the course and history of this particular enactment. H. B. No. 658, (Section 2 of which is the law now under consideration), as originally introduced in the House of Representatives, was amended in the Senate by striking out all of said original Section 2 after the word and figure .“Section 2” and inserting in lieu thereof what is now Section 3373-1, Revised Statutes, as above quoted. Senate Journal, 1891, pp. 742, 743. The Senate amendment was concurred in by the House and the bill as so amended was passed and became a law on April 29, 1891. 88 O. L., 429. In the bill as passed, no parenthetical marks, such as are now found in the statute as published, were used or inserted, but .in said statute in the form in which it became a law, a comma was inserted and is found after the word “class,” in the first paragraph of said section. Thus indicating that the language now found in parenthesis, is not a mere repetition by inadvertence of the language which immediately precedes it, but that this language was advisedly and intentionally so repeated and used, by way of appropriately describing and defining a further and particular preference or discrimination thereby intended to be prohibited and forbidden. In other words, it was we think, the evident design and purpose of the legislature by this statute to enact and provide, — i. That it shall be the duty of all railroad companies to secure and extend to all persons, companies and corporations, the same and equal opportunities and facilities for receiving and shipping freights of all kinds of the same class. 2. That it shall be the duty of all railroad companies to secure and extend to all persons, companies and corporations the same and equal opportunities and facilities for receiving and shipping freights of all kinds of the same class that such railroad company extends to, has, uses, or enjoys, of and concerning freights owned by such railroad company, or any of the officers or stockholders therein, or in which it, they, or either of them have any interest. The first provision doubtless, was intended to be and is, merely declaratory of the common law duty and obligation of railroad companies as common carriers, while the obvious purpose and effect of the second provision, was and is, to declare unlawful, and to specifically prohibit by direct and positive enactment, the particular kind of preference or discrimination therein expressly pointed out and forbidden. The penalty clause of the statute, applies alike to both of these provisions, and is in terms as follows: “Any railroad company or person operating any railroad failing to comply with or observe the provisions or requirements of this section shall be liable in a civil action to the party injured for the damage sustained, but for any violation of this section the recovery in any such action shall be not less than five hundred dollars.” Whether or not in a particular case equal facilities have been refused and a discrimination made, as between shippers, is a question of fact to be determined from the evidence. Inasmuch therefore, as it affirmatively appears from the record in the present case, that there was sufficient evidence to warrant the finding of unlawful discrimination on the part of the railway company against the complainant John Wren, the latter was entitled, by force of the statute, to a verdict' and judgment in his favor for at least five hundred dollars. But with the qualification that the amount recovered shall not be less than five hundred dollars, a party suing for the violation of any of the provisions of this statute is only entitled to recover by way of damages, such sum as will compensate him for the loss or injury he has actually sustained. And in such action if, under the averments of his petition the plaintiff is only entitled to recover general damages, there being no sufficient allegation therein of any special damages, the true rule and measure of such general damages is the difference between the market value of the goods that would have been transported in the cars the plaintiff should have received, at the point to which they were to have been carried at the time when they would have reached their destination, and their market value at the same time at the place from which they were to have been carried, less the cost of transportation between the two points. In the present case a verdict was returned by the jury in favor of the plaintiff and against the railway company for the sum of two thousand dollars; a sum, which upon the undisputed facts is shown to be so grossly' in excess of the damages actually sustained by plaintiff, as to compel the conclusion either, that such verdict was given and returned by the jury under the influence of passion or prejudice, or under the mistaken belief that they were permitted and had full right, to arbitrarily fix and determine the amount of the damages they would assess and allow, no instruction whatever having been given them by the court, as to how, or by what rule, they were to ascertain and measure the amount of such compensation, in the event they should find for the plaintiff. The entire and only instruction given by the court to the jury on the question of the amount of compensation proper to be allowed by them, was as follows: “If you find for plaintiff your verdict will be for such sum as will compensate the plaintiff for damage which he received by reason of defendant discriminating against the plaintiff as in plaintiff’s petition alleged. But if you find for plaintiff your verdict will be for not less than five hundred dollars.” How such damages were to be ascertained, or by what rule they were to be measured and determined the jury was not told, although counsel for the railway company specially requested an instruction upon this point. While the particular instruction asked by counsel in this behalf was properly refused as not containing an accurate statement of the rule or measure of damages applicable in this case, nevertheless, the request as made challenged the court’s attention to the necessity of, and counsel’s desire for, some positive and pertinent instruction on this very material question, and the total omission and failure of the court to advise and instruct the jury as to the law applicable to such question was in this case, under the circumstances, both erroneous and prejudicial. The railway company also requested the trial judge to give to the jury the following instruction:

“The plaintiff claims to have given defendant an order on or about the 26th day of September, 1905, for two cars for shipment of plaintiff’s hay over defendant’s road to C. & O. and N. & W. points and that the defendant refused to deliver said cars, in consequence of which plaintiff claims damage.

“The court instructs you that before plaintiff can recover in this action, he must satisfy you by a preponderance of the evidence,

“First — That such order was given to defendant.

“Second — That defendant had the cars of the kind ordered and facilities for furnishing the same during the period of- which plaintiff complains, and

“Third- — That defendant discriminated against the plaintiff in favor of other shippers in the delivery of cars for the transportation of hay and straw.”

This instruction, which was refused, should we think have been given as asked, and the refusal of the court to submit it to the jury was error. Other alleged errors are assigned and have ■ been considered, but we find in the record no prejudicial error except as hereinbefore stated. The judgment of the circuit court affirming the judgment of the court of common pleas will be reversed, and the cause will be remanded to the court of common pleas of Wyandot county with directions to set aside the verdict rendered herein and grant a new trial, unless a remittur be entered by John Wren of the amount of said verdict in excess of five hundred dollars.

Judgment reversed.

Shauck, C. J., Price, Summers, Spear and Davis, JJ., concur.


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    The Chicago Cottage Organ Company v. Crambert.

      Conditional sales — Sections 4155-2 and 4155-3, Revised Statutes— Piano sold on credit — Possession transferred — Mortgage executed to secure future installments of purchase price — Does not constitute conditional sale, when.

    The only parol evidence of. the purchase of a piano consists of the following conversation between the purchaser and the salesman: “I looked at the pianos. I saw a piano I liked, and I told him (the salesman) I would like to take that piano, and of course he told me it was a good piano, and I asked him what the piano cost. He said two hundred and sixty-five dollars, and the agreement I made with him, I would pay ten dollars down. That was the agreement I made, and six dollars a month, and I paid him ten dollars, and he said ‘Now Miss Crambert I know you will be prompt in your payments.’ I said ‘I will try to be prompt as I can,’ and he said ‘When you have'the piano paid for — when all the payments are paid up, the piano will be yours.’ ” Thereupon at the request of the salesman, the purchaser knowingly executed promissory notes representing the deferred installments of the purchase price and a chattel mortgage containing the usual conditions of such an instrument, to secure the payment of such notes. Directly thereafter the piano was delivered to the purchaser.

      Field: That the foregoing facts fail to establish a contract of conditional sale, as contemplated by Sections 4155-2 and 4155-3, Revised Statutes.
    (No. 10555
    Decided April 14, 1908.)
    Error to the Superior Court of Cincinnati, general term.
    The action-in the court below was in replevin to obtain possession of a piano with stool and scarf. The petition of the company alleges that the defendant Minnie Crambert did wrongfully detain from the plaintiff said property, ' and proceeds to say that, “on the 2d day of September 1899, the defendant, being then the owner of said piano, stool and scarf, did execute unto the plaintiff her- chattel mortgage whereby she did then and there bargain, sell and convey to The Chicago Cottage Organ Company,, its successors and assigns, said piano, stool and scarf to secure her forty-two promissory notes of six dollars each and one note of three dollars, said notes payable in one to forty-three months after date respectively, and aggregating the sum of two hundred and fifty-five dollars.”
    It is further alleged that in said mortgage the defendant covenanted and agreed that in default of payment, or any sale or attempt to sell said property, or any part thereof, or upon the breach of any of the conditions of said mortgage, the mortgagee, or its assigns, might take the same into its possession; and that the mortgage contained a condition that upon the failure of the mortgagor to pay any one of said purchase money mortgage notes secured thereby as each should become due, all of said notes should then become due and payable. It was further provided that if the mortgagor should pay each of said notes with interest at six per cent, from date, the mortgage should be void and of no effect.
    It is further alleged that the defendant failed to pay all of said notes maturing on and after October 2, 1900, and that by reason of said default the plaintiff had the right to take possession of said property, which the defendant has detained for the space of nineteen months, and damages were prayed for in the sum of $125 and a judgment for the recovery of said property.

      This petition was filed in the lower court May 13, 1902. An affidavit in replevin was filed at the same time. The defendant filed an answer and cross-petition in which she denies all the averments of the petition, except that the plaintiff is a corporation, and states that on or about the 3d day of September, 1899, she purchased from the plaintiff one “Kingsbury piano No. 13954” with stool and scarf; that the purchase was on a conditional sale on the installment plan, for the sum of two hundred and fifty-five dollars to be paid in installments; that the title to said piano, stool and scarf was to remain in the vendor, the plaintiff, and that said goods were delivered to her by the plaintiff in pursuance to this agreement; that at divers times subsequent to said date of agreement, purchase and delivery, she made payments upon said goods amounting to the sum of $82.72, as she was required to do under her contract, but that she failed to make payments within the exact terms of said agreement, and that on or about the thirteenth day of May, 1902, the plaintiff, without tendering and refunding to defendant the said sum so paid or any part thereof, forcibly and against her will, took possession of said piano, stool and scarf and unlawfully holds same to her damage in the sum of $50, for which she prays judgment.
    The plaintiff replied admitting many averments of the cross-petition as to the number and amount-of installments of payment, but it denies that the sale of the piano, stool and scarf was conditional so that the title thereto remained in the vendor, and denies that the property was delivered to defendant under any such agreement, and it is averred that the plaintiff relies on its chattel mortgage alone as its source of title. The reply then states that the piano was damaged by the defendant while in her possession in the sum of $50, and that if it be decided that said property was sold on a conditional sale, that by reason of said damages and defendant’s long use of the property the plaintiff is not required to return anything to the purchaser.
    The case was tried to a jury and its verdict was for the defendant in the sum of $41 for which judgment, was rendered, after a motion for new trial was overruled.
    The case was taken on error to the general term where the judgment was affirmed. Error is prosecuted here to reverse both judgments.

      Messrs. Stephens, Lincoln & Stephens, for plaintiff in error.

      Mr. Charles J. Fitzgerald and Mr. John P. Ryan, for defendant in error.
   Price, J.

There is a common understanding between the parties to this litigation, that the plaintiff in error sold to the defendant in error, on or about September 2, 1899, the piano, stool and scarf mentioned in the record, and that the sale was upon an agreed consideration of $265 to be paid $10 in cash and the balance in monthly installments of six dollars each, and one of three dollars, each to bear six per cent, interest from date. To represent these deferred payments forty-two notes of six dollars each, and one for three dollars, were executed by the purchaser to the organ company, and, while the answer denies it, it is not disputed in the evidence, that the chattel mortgage was signed by the purchaser, which by its terms secures the payment of said notes. The point of variance relates to the character of the sale, it being asserted by the purchaser that it was conditional, so that the title remained in the vendor until all the payments were made, while the vendor affirms that the sale was absolute, thereby vesting the title to the goods in the purchaser, subject to be divested only on the breach of some or all of the covenants and conditions of the chattel mortgage.

If the sale was conditional, the rights of the parties thereto were defined by Sections 4155-2 and 4155-3, Revised Statutes. As these provisions of the statute are appealed to by defendant in error in support of her contention, we insert them in this opinion.

Section 4155-2, as in force at the time the mortgage was given (September 2, 1899), and at the time the piano was replevined (May 13, 1902), read as follows: -

“(4155-2) Sec. 1. [Conditional sales of personal property; condition, when void; evidence of condition; filing of statement.] In all cases where any personal property shall be sold to any person, to be paid for in whole or in part in installments, or shall be leased, rented, hired or delivered to another on condition that the same shall belong to the person purchasing, leasing, renting, hiring or receiving the same whenever the amount paid shall be a certain sum, or the value of such property, the title to the same to remain in the vendor, lessor, renter, hirer or deliverer of the same, until such sum or the value of such property or any part thereof shall have been paid, such condition, in regard to the title so remaining until such payment, shall be void as to all subsequent purchasers and mortgagees in good faith, and creditors, unless such condition shall be evidenced by writing, signed by the purchasers, lessor, renter, hirer, or receiver of the same, and also a statement thereon, under oath, made by the person so selling, leasing or delivering any property as herein provided, his agent or attorney of the amount of the claim, or a true copy thereof, with an affidavit that the same is a copy, deposited with the clerk of the township where the person signing the instrument resides at the time of the execution thereof, if a resident of the state, and if not such a resident, then with the clerk of the township in which such property is sold, leased, rented, hired, or delivered is situated at the time of the execution of the instrument; but when the person executing the instrument is a resident of a township in which the office of county recorder is kept, or when he is a non-resident of the state, and the property is within such township, the instrument shall be filed with the county recorder; and the officer receiving any such instrument shall proceed with the same in all respects as he is required to do by section four thousand one hundred and ñfty-two of the Revised Statutes of Ohio, and shall receive the same fees as are allowed by law for similar services in other cases. [82 v. 238.]”

Section 4155-3 was amended March 19, 1902, but as the amendment is not material to the case at bar we give it as in force when the mortgage was executed:

“(4155-3) Sec. 2. [Vendor of property conditionally sold may not retake possession without repaying certain part of price paid.] Whenever such property is so sold or leased, rented, hired or delivered, it shall be unlawful for the vendor, lessor, renter, hirer or deliverer, or his or their agent or servant, to take possession of said property without tendering or refunding to the purchaser, lessee, renter or hirer thereof, or any party receiving the same, the sum or sums of money so paid after deducting therefrom a reasonable compensation for the use of such property, which shall in no case exceed fifty per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in such contract or not, unless such property has been broken or actually damaged, and then a reasonable compensation for such breakage or damage shall be allowed. [82 v. 238.]"

The section first quoted provides, in substance, that a contract of sale of personal property to any person to be paid for in whole or in part in installments on condition that the property sold shall belong to the purchaser whenever the amount paid shall be a certain sum, the title to remain in the vendor until such sum shall have been paid, shall be void as to the title remaining in the vendor, as to all subsequent purchasers and mortgagees in good faith, and creditors, unless such contract be evidenced by writing signed by the purchaser. It must have a statement thereon under oath of the seller, his agent or attorney, of the amount of the claim. It is also required that the contract so endorsed, or’ a sworn copy thereof, shall be deposited or filed with a certain township officer, or in a certain case with the county recorder. As between the parties to the sale the condition that the title to the property sold shall remain in the vendor until the purchase price or a fixed part thereof shall be paid, may rest in parol. The written evidence of the contract is required and that the same be duly filed in order to stand as against subsequent purchasers, mortgagees in good faith and creditors.

In the case at bar where is the evidence of a conditional sale of the piano, stool and scarf ? The plaintiff, to make out its case under the petition introduced the chattel mortgage and unpaid notes, the execution of which was not disputed, and rested its case. These documents, whose execution was not denied, made a case for recovery in replevin which was the character of the action. In order to defeat the plaintiff's right to so recover, it was incumbent upon the defendant to establish her cross-petition wherein she sets up that the sale was not absolute but conditional, and that the material condition in the contract of sale, was that the title to the goods purchased should remain in the seller until the purchase money installments be paid. The burden was upon her to establish the vital condition, not by inference that one might draw, but by direct evidence as to the terms of the contract.

Assuming that burden what does she show ? She alone testified on the subject, and no one contradicts her. When she went to the store room of the organ company in September, 1899, she was met by Mr. Morey, a salesman of the company. She looked at some of the pianos, and she was asked to “tell the whole transaction.” Ans. “As I was saying, I looked at the pianos. I saw a piano I liked, and I told him I would like to take that piano, and of course he told me it was a good piano, and I asked him what the piano cost. He said two hundred and sixty-five dollars, and the agreement I made with him, I would pay ten dollars down. That was the agreement I made, and six dollars a month, and I paid him ten dollars, and he said — ‘Now, Miss Crambert I know you will be prompt in your payments.’ I said, T will try to be as prompt as I can,’ arid he said, ‘when you have the piano paid for — when all the payments are paid up the piano will be yours.’ ”

On motion of counsel for the company, this answer was stricken out, but it seems that, as found on the next page of the printed record, the court recanted and permitted the following inquiry and answer: “State what that was that was said.” Ans. “I told him that I would like to have the piano: that I would pay ten dollars- down and six dollars a month and six per cent. So he told me then as soon as the piano was paid' for — made my payments, the piano would be mine, and he asked me in the rear office, and he gave me some papers, and I was not used to anything like that, and I signed the papers and never read them.”

Although the court struck out the first statement, it is 'found in the printed record, and as the trial court changed its opinion as to its competency, we will treat it as properly before us to be considered with the latter statement which was printed. A comparison of these two narrations of past events impresses us with the fallibility of human memory, especially when one is called .upon several years afterwards to repeat a conversation even on business affairs. The purchase was made in September, 1899, and the witness was being examined at May term, 1905 — more than five years, and it is plain that the two statements radically differ. The latter does not contain an expression found in the former, while it does contain new matter not found in the former. Nothing is said in the former about going to the office and signing papers. But taking both for what they express, do they prove or tend to prove the contract alleged in the cross-petition? It is there alleged that property “was purchased from plaintiff by defendant by way of conditional sale on the installment plan * * * that the title to said piano, stool and scarf was to remain in the vendor, the plaintiff herein * * * .” And if we look to the section of the statute first quoted, we see that it must be a part of the contract of sale that the title to the property is to remain in the vendor, for in contracts of bargain and sale, unless so expressly provided, the title passes with the sale and delivery. Therefore to still hold the title to goods sold and delivered, the vendor must have a contract to that effect. ' The right to so hold title must not depend on inference or conjecture, and it is doubtful whether such a contract may be implied from circumstances, but we need not go so far.

There was no negotiation between.the salesman and the lady purchaser touching the title, or where it should abide in case of sale. He did not say to her, “Your terms of payment are satisfactory, but we will hold the title to the piano, et cetera, until we receive all the payments,” or any similar words. She did not say, “You may hold the title until you are paid,” or anything to that effect. The nearest approach to any statement regarding title, is as found in her first testimony, where she quotes the salesman as saying: “Now, Miss Crambert, I know you will be prompt in your payments,” and he said, “when you have this piano paid for, when all the payments are paid up the piano will be yours.” Or, as she quotes him in her second statement,— “so he told me then as soon as the piano was paid for, made my payments, the piano would be mine * * * y He saj¿ nothing about the company still holding the title, and therefore she had no opportunity to agree to that as a condition in the sale. She says, “the agreement I made with him, I would pay ten dollars down. That was the agreement I made and six dollars a month, and. I paid him the ten dollars.”

Neither party said a word about the title remaining in the vendor and therefore the minds of the parties never met on that point. . What the salesman said about the piano becoming her property when the payments were made, is but the expression of an opinion. Whether he was authorized to make the remark or not, is immaterial, because, in our judgment, it did not establish, or tend to establish, a contract between the purchaser and the company, that it should hold the title until the payments were made. The expression of an opinion by the salesman falls far short of making a contract of conditional sale.

Moreover, the salesman and the purchaser did not understand that such a contract had been made, for he requested her to step into the office, where papers were prepared for her signature. If a contract of conditional sale had been consummated, notes and a chattel mortgage would have been foreign to the transaction. She says she signed the papers without reading them, but in answer to a question, stated that it took her from a half to three quarters of an hour to sign all of them. There were forty-three notes and the mortgage. On each of the notes and in the last line thereof is the language: “Secured by chattel mortgage on. Kingsbury piano No. 13954.” She signed her name directly under this line where she could not avoid seeing the purport of the paper. She had forty-three chances to see that warning, and must, be held to have know what was so plainly in view. In the body of the mortgage she covenanted that she owned the piano, etc., and had a right to encumber them by the instrument.

This mortgage was duly filed, and not until the company insisted on payment of long overdue notes, did she think of the law of conditional sales. Finding that her own evidence fails to establish a conditional sale the title remaining in the vendor, she was not entitled to the benefit of Section 4155-3, Revised Statutes, and the trial court should have so held and should have so charged the jury.

The learned discussion of the limitations on an agents authority which we find in the briefs is now irrelevant.

The answer and cross-petition does not pray for reformation of the mortgage, but simply denies its execution and the execution of the notes, in the form of general denial, but on the trial the execution of these various instruments was admitted. There is no prayer for any relief by way of redemption or otherwise, no fraud alleged in obtaining the mortgage, so our only course is to reverse the judgments of the lower courts and render judgment for plaintiff in error, and this we do.

Judgment reversed and judgment for plaintiff in error.

Shauck, C. J., Summers, and Davis, JJ., concur.


author: Shauck, C. J.

text:
    The First National Bank of Wapakoneta v. Brotherton, Trustee, et al.

      Bona fide eoidorsee of note and mortgage — Mortgage confers lien on real estate to indorsee, when.

    The transfer to a bona fide indorsee of a negotiable promissory note with a mortgage on real estate by which the note is secured confers upon such indorsee a lien upon the real estate free from all latent equities in favor of persons who are strangers to the title. (Baily v. Smith, 14 Ohio St., 396, distinguished.)
    (No. 10317
    Decided April 14, 1908.)
    Error to the Circuit Court of Allen county.
    Suit was brought in the court of common pleas by Brotherton as trustee in bankruptcy of the estate of the South Side Lumber Company to procure the cancellation of a mortgage upon certain real estate described in his petition, upon the ground that it was fraudulent and void as to the creditors of the lumber company. The real estate which was subject to the mortgage had never been the property of the lumber company. It had been conveyed by one Raudabaugh to Roy J. Dewey, and the mortgage was executed by Dewey to one David C. Dunn to secure a promissory note of $6,000 of even date with the mortgage, and the note and mortgage were transferred and assigned by Dunn to the plaintiff in error, the First National Bank of Wapakoneta. In its answer and cross-petition in the case the bank alleged the’ facts necessary to constitute it a bona fide holder of the notes and mortgage. The cause was appealed to the circuit court where it was tried and the rights, of the parties determined upon an agreed statement of facts as follows:
    “That the defendant, the South Side Lumber Company, is and was a corporation organized under the laws of the State of Ohio with a capital stock of $20,000.00, and at all the times mentioned in the petition said capital stock was fully paid;
    “That the said defendant, David C. Dunn, was at said times the owner of $6,700 worth of said capital stock and that said Roy J. Dewey was the owner of $200 worth of said stock, and that, on or about the 15th day of September, 1904, the said The South Side Lumber Company was the owner of a large amount of lumber and other merchandise to the value of about $23,000; that at about said date the said corporation negotiated a sale of said lumber and merchandise to one Joshua R. Raudabaugh for about the price of $23,000; that the said D. C. Dunn was not favorable to said sale unless the said corporation would purchase from him $6000, of his said capital stock at an agreed price of $6000, and the balance of his said capital stock of $700 he transferred to W. W. Leighton for an agreed consideration as between themselves.
    “That on the 8th day of September, 1904, the said negotiations for said sale and for the retirement of said stock having, been in progress from on or about the said 8th day of September, IQ04, the Board of Directors of said The South Side Lumber Company passed the following resolution or motion:

      ‘That part of lot 1722 which is accepted from Joshua R. Raudabaugh as part payment for lumber stock at the valuation of $7500, be deeded to R. J. Dewey as trustee and that said Dewey be authorized to procure a loan on same of $6000, which money is to be used to purchase and retire $6000 of the capital stock of the said the South Side Lumber Company now owned by D. C. Dunn’;
    “That in pursuance of the aforesaid resolution and as a part of the purchase price paid by said Raudabaugh to the said The South Side Lumber Company for said stock of lumber and merchandise, the said Raudabaugh did, on or about the 31st day of August, 1904, and filed for record September 14, 1904, deed said premises to R. J. Dewey individually, there being no description or designation in said deed that said Dewey was in fact acting as trustee as provided in said resolution;
    “That afterwards, to-wit, on the 15th day of September, 1904, the said Dewey executed and delivered to said D. C. Dunn the note mentioned in the petition and set out and described in the answer and cross-petition and amended answer and cross-petition of The First National Bank of Wapalconeta, Ohio, and at the same time said Dewey individually executed and' delivered to the said Dunn a mortgage on said property, being the property described in the petition, for the purpose of securing the payment of said note of $6000, which mortgage was duly filed with the Recorder of Allen County, Ohio, for record on said 15th day of September, 1904, at 1:20 o’clock p. m.j and by him recorded in volume 83, page 369, of the records of mortgages of said county, in which mortgage Emma Dewey, wife of said Roy J. Dewey, joined;
    “And thereupon the said D. C. Dunn attempted to and did, so far as he had the power, cancel and surrender to said company $6000 of the capital stock of said company so theretofore owned by him;
    “That said Dunn, at the time of the transactions hereinbefore enumerated, was an officer of said company, was one of its board of directors and was the acting secretary thereof, and that the said D. C. Dunn did then and there accept said note and mortgage in full payment and satisfaction of his said $6000 of stock in said company thus surrendered and cancelled by the company;
    “That subsequent thereto, on the 10th day of November, 1904, proceedings were instituted in the United States District Court for the Northern District of Ohio, Western Division, by some of the creditors of said The South Side Lumber Company to have the said The South Side Lumber Company declared an involuntary bankrupt; that on the 2d day of December, 1904, the said The South Side Lumber Company was adjudicated a bankrupt in said proceedings; that on the 19th day of December, 1904, the plaintiff, Cloyd J. Brotherton, was elected trustee in bankruptcy for said bankrupt and immediately accepted the trust and qualified; that at the time of said adjudication in bankruptcy the said The South Side Lumber Company owed debts to the amount of $........; that by reason of said proceedings there passed to said Cloyd J. Brotherton, as such trustee, certain real estate of said bankrupt, also certain' accounts then due said bankrupt, of the nominal value of $........; that such property so passing was all the property and assets, at that time or now, of said The South Side Lumber Company, except that the title to the property described in the petition was placed in the name of R. J. Dewey, who in fact was the trustee of the said The South Side Lumber Company, which was in fact the owner thereof, of which fact D. C. Dunn had full knowledge at the time of the execution of the mortgage, and this said property is the only other property in which the said bankrupt had or has any interest whatever, and which is or may become, by the adjudication of this court, assets in the hands of said trustee in bankruptcy; that the real estate so passing to the said trustee in bankruptcy was all incumbered by bona ñde niortgage liens; that the trustee in bankruptcy has sold and disposed of all of said real estate, except the real estate in controversy in this suit, under the orders of said bankruptcy court; and after paying the said mortgage liens and the costs of said proceeding to sell the same, there remains in the hands of said trustee the sum of $........; that there have been filed and proven valid claims against said bankrupt which are unsecured, amounting to $........
    “It is further agreed that the unpaid and unsecured indebtedness of said The South Side Lumber Company, at the time the petition in this case was filed and now, is largely in excess of the assets of said .The South Side Lumber Company; that the said company, at the timé of said adjudication in bankruptcy, was insolvent and unable to pay its debts; and it is further agreed, that the excess of the liabilities of said The South Side Lumber Company over all assets now in the hands of said trustee, or owned by said bankrupt, are largely in excess of the value of the property in litigation in this proceeding.
    “It is further agreed that the said D. C. Dunn, shortly after the execution and delivery to him of said note and mortgage of $6000, to-wit, on the 23rd day of September, 1904, borrowed of The First National Bank of Wapakoneta, Ohio, the sum of $6000 and executed to said bank his own note for said sum; and at the same time for the purpose of securing said loan to him, he transferred to said bank the said note and mortgage for $6000 as collateral security, by writing or endorsing on the margin of said mortgage the following words: “For value received I hereby assign the within mortgage and transfer the note which is secured by same to The First National Bank of Wapakoneta, Ohio. D. C. Dunn” and delivering said note and mortgage to said bank, and endorsing his name on the back of said note, which transfer was duly recorded on the margin of the record of said mortgage on November 29th, and that said bank, at the time it so received said note and mortgage, had no knowledge of any of the facts before recited and no notice or knowledge ■ of any claim on the part of any one that said note and mortgage of $6000 was other than the individual property of the said D. C. Dunn, or that the property upon which said mortgage was given was or had been other than the individual property of R. J. Dewey; that said note of D. C. Dunn, as collateral to which the said $6ooo note and mortgage were transferred to it, is past due and unpaid and the said bank is still holding said $6ooo note and mortgage as collateral to said indebtedness.
    “It is further agreed that Joshua R. Raudabaugh has paid the taxes and assessments as set forth in his answer and cross-petition and that the same is the first and best lien upon said premises for the amount that he claims due him in said cross-petition, with interest as prayed for in said cross-petition.
    “It is further agreed that the averments of the answer and cross-petition of Charles F. Ashton herein are true.
    “It is further agreed that the above statement of facts shall be taken as the complete evidence in this case.
    “It is further agreed that the existing and unpaid indebtedness against The South Side Lumber Company accrued prior to and existed before the 15th day of September, 1904.”
    Upon the facts thus agreed to the circuit court decreed the cancellation of the mortgage as against.the bank and ordered Dewey to execute a deed to convey the premises covered by the mortgage to Brotherton as trustee.

      Mr. John W. Roby, for plaintiff in error,
    cited and commented upon the following authorities: Holmes v. Gardner, 50 Ohio St., 167;
      Baily v. Smith, 14 Ohio St., 396; Lea v. Welsh, 12 C. C., 674; Ohio Digest, “Bona Fide Purchaser”; Bean v. Smith, 2 Mason, 274; Bank v. Teeters, 31 Ohio St., 37; Frisbey v. Thayer, 25 Wend., 399; Willoughby v. Willoughby, 1 T. R., 763; United States v. Fisher, 2 Cranch, 358; Conard v. Insurance Co., 1 Pet., 441; Webb’s Admr. v. Roff, 9 Ohio St., 430; 9 Michie Digest, 738; Pomeroy on Equity, Sections 712 and 715; Carpenter v. Longan, 16 Wall., 275; Gould v. Marsh, 1 Hun, 566; Taylor v. Page, 6 Allen, 86; Watson v. Wyman, 161 Mass., 96; Pierce v. Faunce, 47 Me., 507; Billgery v. Ferguson, 30 La. An., 84; Dearman v. Trimmier, 2 S. E. Rep., 501; Lewis v. Kirk, 28 Kans., 497; Duncan v. Louisville, 13 Bush (Ky.), 378; Thompson v. Maddux, 117 Ala., 468; Croft v. Bunster, 9 Wis., 503; Kenicott v. Supervisors, 16 Wall., 452; Gabbert v. Schwarts, 69 Ind., 450; Preston, Kean & Co. v. Morris, Case & Co., 42 Ia., 551; Hagerman v. Sutton, 91 Mo,, 532, 4 S. W. Rep., 78; Webb v. Hoselton, 4 Neb., 318, 19 Am. Rep., 640; Bamberger v. Geiser, 33 Pac. Rep., 610; Bailey v. Seymour, 20 S. E. Rep., 63; Graham v. Blinn, 30 Pac. Rep., 447; Frost v. Fisher, 58 Pac. Rep., 876; Jones on Mortgages, Section 834; Osborn v. McCelland, 43 Ohio St., 304; 20 Am. & Eng. Ency. Law, 1043; Humble v. Curtis, 160 Ill., 193, 43 N. E. Rep., 749; Himrod v. Gilman, 147 Ill., 293; Murray v. Lylburn, 2 Johns. Ch., 441; Mott v. Clark, 9 Pa. St., 399; Pryor v. Wood, 31 Pa. St., 142; Moffett v. Parker, 71 Minn., 139, 70 Am. St., 319; Newton v. Newton, 46 Minn., 33; Cordage Co.
      v. Seymour, 67 Minn., 311; Brigham v. Potter, 14 Gray, 522; Cazet v. Field, 9 Gray, 329; Swift & Nichols v. Holdridge et al., 10 Ohio, 230; Webb v. Brown, 3 Ohio St., 262; Hollowell & Co. v. Bayliss, 10 Ohio St., 536; Combs v. Watson, 32 Ohio St., 228; Leaf v. Marriott, 4 Ohio Dec., 403; Railway Co. v. Lynde, 55 Ohio St., 23; Sections 4135, 6343 and 6444, Revised Statutes.

      Mr. Frank E. Mead; Messrs. Wheeler & Bently and Mr. W. H. Leete, for defendants in error,
    cited and commented upon the following authorities: Coppin v. Greenlees & Ransom Co., 38 Ohio St., 275; Morgan v. Lewis, 46 Ohio St., 1; Bank v. Carriage Co., 17 C. C., 253; Loveland on Bankruptcy (2 ed.), Section 159; Baily v. Smith, 14 Ohio St., 396; Carpenter v. Langan, 16 Wall., 271; Railway Co. v. Lynde, 55 Ohio St., 23; Heller v. Meiss et al., 1 C. S. C. R., 479; Trust Co. v. Railroad Co., 17 W. L. B., 179; Helebush v. Richter, 2 W. L. B., 127, 37 Ohio St., 222; Ranney v. Hardy, 43 Ohio St., 157; Osborn v. McClelland, 43 Ohio St., 284; Kernohan v. Manss, 53 Ohio St., 133; Holmes v. Gardner, 50 Ohio St., 167; Board of Education v. Stephenson, 39 W. L. B., 75; Pinney v. Bank, 71 Ohio St., 184; Pomeroy on Equity (3 ed.), Section 704; Sections 3173, 3173b, 4135 and 4135a, Revised Statutes.
   Shauck, C. J.

The present case concedes that the relief sought by the trustee would have been properly granted but for the rights of the bona fide holder which attached to the interests of the plaintiff in error. This because of the fact that the mere surrender by Dunn of his stock in an insolvent corporation did not constitute a sufficient consideration to sustain either the deed to Dewey or his subsequent mortgage to Dunn. The question we have to determine is, may the invalidity of the mortgage be asserted against the bank which received it with the note which it secured, before due, for a full consideration contemporaneously advanced by it, and without either actual or constructive notice of the circumstances attending the execution of either the deed or the mortgage? The principal, if not the only, reliance of the circuit court for the affirmative answer which it gave to that question is Baily v. Smith, 14 Ohio St., 396. Much care has been taken by this court, and by the courts of two other states which have followed Baily v. Smith, to limit its authority to the precise point which it decided.. In any view which may be taken of the case, it is an obvious departure from the doctrine generally recognized by the courts of the country. This was clearly demonstrated in Carpenter v. Longan, 16 Wall., 275. Although the case, when reviewed in the later adjudications of this court, has been recognized as establishing a rule of property, care has always been taken to limit it to that conservative function. It has not been thought necessary or advisable to give such extended operation to its doctrine as would widen the divergence between the decisions of this court and those of other states and the federal courts with reference to related subjects. Renewed attention to the precise conclusion there reached is necessary to the end that it may be distinguished from the conclusion which it is said to require in the present case. If the syllabus of that case is read in the light of the well known rulo of this court that it states the points decided, the relevant proposition of the syllabus, the fourth in number, will plainly suggest the needed limitation: “The transfer of a negotiable promissory note, secured by mortgage on real estate, to a bona fide indorsee, does not entitle the holder to foreclose the mortgage, when it appears that both note and mortgage were obtained by fraud.” The point decided was that a note and mortgage to secure it having been obtained by fraud, the maker may interpose that defense against the mortgage in the hands of a bona fide indorsee, although he may not interpose it against the note. Obviously no other question could have been decided for no other was presented. In the present case, the question is whether against such bona fide holder there may be asserted a latent equity in favor of persons who are not parties to the mortgage and as to whom the record contains no disclosure whatever. An affirmative answer to that question derives no support whatever from Baily v. Smith. Notwithstanding all that was there said, cases of this character are determined by the familiar rule that a mortgage is an incident to a negotiable note which it secures, and is subject to no equity which may not be asserted against the holder of the note. If it should be conceded that one in the position of the plaintiff in error might, consistently with the principles of law, be required to ascertain, before purchasing, whether the mortgagor has a defense against a suit to foreclose his equity of redemption, it would not follow that he should be held to inquire of mankind with respect to látent equities. In support of the view here , suggested the cases are numerous and uniform. Types of them are: Holmes v. Gardner, 50 Ohio St., 167; Railway Co. v. Lynde, 55 Ohio St., 23; and Humble v. Curtis, 160 Ill., 193.

Reference to the statement of facts in the present case shows that the plaintiff in error not only received the note by indorsement from Dunn, but that it received a formal assignment indorsed upon the mortgage and that the same was duly entered of record. In view of this fact counsel for plaintiff in. error insists that the amendment of 1888 to Section 4135, Revised Statutes, vested in the bank a legal title to the mortgagee’s interest in the property, and that the point actually decided in Baily v. Smith is now inconsistent with the statute. It will be prudent to defer a decision of the question suggested until it shall receive from counsel and the court the more careful consideration which it is likely to receive in a case requiring it to be decided.

Without attaching any importance whatever to the amendment of the statute, it seems clear that the judgment of the circuit court was erroneous and that upon the agreed statement of facts upon which the case was submitted the judgment should be in favor of the plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Price, Crew, Summers, Spear and Davis, JJ., concur.


author: Davis, J.

text:
    Pennsylvania Company v. Thatcher.

      Equitable assignment to an attorney — Of proceeds in compromise of tort — Cannot be enforced by assignee, when — Notice by assignee to tort-feasor — Does not charge funds in his hands, when— Where compromise, fund is paid plaintiff — Assignee cannot recover from plaintiff or defendant, when — Law of assignment of claim.

    1. An equitable assignment to an attorney, of an interest in the proceeds of a compromise of a cause of action in tort, cannot be enforced in a suit at law at the instance of the assignee against the tort-feasor only. The P. C. C. & St. L. Ry. Co. v. Volkert et al., 58 Ohio St., 362, approved and followed.
    2. A notice by an attorney, to one liable on such a cause of action, that his client had assigned to him “a portion of whatever may be paid in suit or settlement for services to be rendered in connection with said claim,” is indefinite and insufficient to charge the fund in the hands of the tort-feasor, especially when it appears that the real transaction was an assignment of “an interest in the subject-matter of the claim equal to the fees” of the attorney as agreed.
    3. Where such a cause of action is compromised by the tort-feasor and the injured party in the absence of the attorney of the latter, before suit commenced, and the amount agreed on is paid over to the claimant, and the attorney, who claims an interest in the proceeds of the compromise, does not follow the fund into the hands of his client, but in consideration of payment of a part of the fee claimed by him agrees not to prosecute his client for the balance of his fee and agrees to prosecute the tort-feasor therefor, he thereby waives his right to recover against either.

      4. Where in such case the attorney obtained from his client possession of part of the money paid, for the purpose of counting the same, and thereupon said that he would keep the money and apply it on account, but on resistance and remonstrance on part of the client handed it back to the latter, such facts do not show a payment to the attorney.
    (No. 10570
    Decided May 19, 1908.)
    Error to the Circuit Court of Lucas county.
    On the 14th day of May, 1903, the plaintiff 'in error was liable to Harley Mattison for damages received in a railroad accident, and on that date Mattison entered into a written agreement with the defendant in error, Charles A. Thatcher, who is an attorney, to prosecute the claim against the plaintiff in error, and stipulated that the defendant in error should be paid for his services, in case of the settlement of the said claim, one-third of the amount so recovered, or one-half of the amount recovered in case of' trial. In said written agreement Mattison also assigned to said Thatcher “an interest in the subject-matter of said claim equal to said fees.”
    On the 28th day of May, 1903, Thatcher wrote to the superintendent of the plaintiff in error at Toledo, Ohio, notifying the latter that he, Thatcher, was attorney for Mattison and expressed a desire to open negotiations for settlement. He concluded the letter as follows: “You will please take notice that Mr. Mattison has assigned to me a portion of whatever may be paid in suit or settlement for services to be rendered in connection with said claim.” Thereafter Thatcher had some negotiations with the officials of the plaintiff in error looking to compromise; but on or about August i, 1903, while Thatcher was temporarily absept from the city, Mattison took the matter into his own hands, went to the office of the plaintiff in error in Toledo and then and there settled his claim for $3,000, which, was paid to him at that time; and he thereupon gave to the plaintiff in error a release in full for his claim. When Thatcher learned of the compromise and demanded of Mattison $1,000 as his fees under the agreement, a dispute arose as to the value of the services and Thatcher then notified the Company that he would look to it for the full amount of his fees and that unless the matter should be adjusted without further delay he would begin an action against the Company. Negotiations continued, however, between Thatcher and Mattison until August 14. Meantime, on the day after the settlement with the plaintiff in error, defendant in error had an interview with Mattison at Mattison’s house, in presence of Mattison’s wife, mother and sister-in-law. Defendant in error demanded of Mattison one thousand dollars. The latter said he only had in the house between $700 and $800. Defendant in error asked to count it and it was given to him for that purpose. .Defendant in error counted it and then said he would keep the money and apply it on account. Mattison got excited and got between defendant in error and the door, when the latter gave up the money.
    On August 14, 1903, Mattison and Thatcher met in a saloon in Toledo, and the former paid $300 on Thatcher’s claim for services and received the following release: “Harley Mattison having deposited $300 with C. B. Hadden I agree to prosecute the Pennsylvania Co. for balance of my fees and not to prosecute the said Mattison for the same for the reason that said Mattison is insolvent and a judgment against him would be of no account. If any action is taken by me against said Mattison said payment of $300 to said Hadden is void and said $300 shall be returned to him.” (Signed) “C. A. Thatcher.” Witnessed by E. Miller, H. Schnetzler, C. B. Hadden. Hadden is a lawyer who rented his office from Thatcher and he deposited the $300 in a bank, took a certificate of deposit therefor and indorsed and delivered the same to Thatcher, who still has it.
    On May 14, 1904, the defendant in error filed his petition against the plaintiff in error in the court of common pleas of Lucas county alleging that the defendant was a railroad corporation having a line of railroad and doing business in the city of Toledo; that on the 14th of May, 1903, it was liable to Harley Mattison in a large sum of money for a tort committed by the defendant; that the plaintiff was employed by said Mattison as his- attorney, and setting out the contract of employment as hereinbefore stated; that on the 23d of May, 1903, the plaintiff served notice upon the defendant of his interest in the claim and that he had performed everything required of him in carrying out the terms of the employment; that the defendant had promised and agreed with the plaintiff to adjust said claim through him and to pay to him the amount that might be agreed upon in the settlement of said claim, but that, instead of so doing, on or about August 1, 1903, the defendant paid to Mattison the sum of three thousand dollars in settlement of said claim, which said sum included the amount which was due to the plaintiff. under the said terms of employment. The plaintiff avers that he had attempted to collect the sum so due him from Mattison; that Mattison had deposited the sum of $300 to be applied on the amount due to the plaintiff, and was, and is, insolvent; that the payment was made by the* defendant for the purpose of defrauding the plaintiff; and that by reason of the premises the defendant is indebted to and liable to the plaintiff in the sum of $700, with interest from the 1st day of August, 1903, for which he prays judgment.
    The defendant answered this petition: first, by admitting its corporate capacity and the allegation that it had paid to Mattison the sum of $3,000 in full settlement for-injuries which he had received while in the employment of the defendant, and denies each and every allegation in the petition not herein expressly admitted; second, the defendant further answering says that the plaintiff demanded in settlement of Mattison’s claim the sum of ■ $8,000; that the plaintiff was at the same time authorized by Mattison to settle for the sum of $3,000; that when plaintiff made demand of the defendant of the sum of $8,000, defendant notified Mattison of that fact and Mattison thereupon informed the defendant that the plaiiitiff was no longer his attorney but that one S. H. Kelley would represent him in negotiation for settlement; that thereupon Kelley did negotiate with the defendant and through and by his advice said Mattison accepted the sum of $3,000 in full settlement and discharge of the defendant; that said Kelley was present during the negotiations of settlement and when said money was paid, and had said Mattison execute a written agreement of settlement as aforesaid, and thé defendant therefore denies that at the time the settlement was made the plaintiff was the attorney of Mattison; and third, the defendant further answering says that after said settlement had been made, the plaintiff called upon said Mattison at his home and demanded that Mattison should turn over to him the money which he had received in settlement of the claim, which Mattison refused to do; that thereupon the plaintiff made a threat of prosecution and so intimidated Mattison that he turned over a large part of this money to the plaintiff, and the defendant avers that the plaintiff was thereupon paid in full for all services which he may have rendered Mattison as stated in the petition; and that the defendant is informed the plaintiff thereafter returned said money to said Mattison, and avers that if the money was returned by the plaintiff as aforesaid it was by voluntary action of plaintiff and for the purpose of carrying out some mutual arrangement between himself and said Mattison.
    By way of reply, the plaintiff denied that Mattison at any time authorized the plaintiff to accept $3,000 in settlement of said Mattison’s claim against the defendant, and avers that Mattison requested him to take the sum of $8,ooo, and no other sum; that at the time the said demand was made by him it was believed that Mattison would never recover from said injuries and that he was justly entitled to receive the sum of $8,ooo. Plaintiff denies any knowledge of any statement Mattison may have made to the defendant regarding the employment of one S. H. Kelley as his attorney. The plaintiff avers and believes that Kelley was never employed by Mattison as his attorney, but that he was secured to act for the defendant in its effort to settle the said case. Plaintiff also avers that Mattison did not employ Kelley as his attorney, but that the defendant did employ him to use his influence over said Mattison- to induce him to settle the claim; that Mattison at no time discharged plaintiff as his attorney; that when said settlement was made plaintiff was absent from the city of Toledo, and prior to leaving said city the defendant through its authorized attorney promised and agreed with plaintiff that no settlement of said claim should be made during the absence of said plaintiff from said city but that the same should be taken up with the plaintiff on his return to the city; and plaintiff charges that the purpose of the defendant in making settlement without plaintiff’s knowledge was to take advantage of the said Mattison and to defraud plaintiff out of the amount to which he was justly entitled. He further says that it is not true that he in any manner intimidated or threatened said Mattison with prosecution, and that it is not true that Mattison turned over to him the money, or a large part, which Mattison had received from the defendant. Plaintiff' says that he has never been fully paid for the services rendered by him to said Mattison, and denies each and every allegation in the answer contained, except such matters as are alleged in his petition.

      A trial of said case resulted in a verdict and judgment for the plaintiff. Motion for a new trial was overruled, a bill of exceptions taken, petition in error filed in the circuit court, and on the hearing in the circuit court the judgment of the court of common pleas was affirmed. This proceeding is prosecuted to reverse the judgments of the courts below.

      Messrs. Marshall & Fraser, for plaintiff in error.
    The courts below held the plaintiff in error liable upon some theory of equitable, assignment or equitable lien or equitable interest, and they construed the action as one in equity seeking to reach the fund and therefore held that the moment the company agreed to pay Mr. Mattison $3,000.00 some kind of an equitable ownership to a third of it might attach in favor of Mr. Thatcher, and for the instant the railroad company held it as trustee for him.
    If this action is to be treated in any sense as an equitable proceeding to reach the fund, then the petition is clearly demurrable for the reason that there are no sufficient allegations in the petition to reach that end, and there is clearly a defect of parties defendant for the reason that Mr. Thatcher’s client is not a party defendant, and it must certainly be true that if this were an action to reach the fund, the client is a necessary party. This has been so held where the question has been directly raised. Oishei v. Railroad Co., 91 N. Y. Supp., 1034.
    There could be no equitable assignment of this fund, which was not in existence at the time the assignment was made, and the courts based their holding upon the case of Kendall v. United States, 7 Wall., 113.
    If has been expressly held by this court, and we may say it is fundamental law of this state and other states that no assignment of a part of a cause of action can be made so as to subject the defendant to an action at law without his consent. Railway Co. v. Volkert, 58 Ohio St., 363.
    In the case at bar it is not claimed even that the Pennsylvania Company ever consented to any partial assignment of this ■ cause of action.
    It needs no citation of authority to remind the court that in Ohio there can be no attorney’s lien, and especially before action is begun, and it has been held here and elsewhere repeatedly that no lien attaches for attorney fees in an action for unliquidated damages, prior to judgment.
    In some states by statute an attorney has a lien, but not so in Ohio. Diehl v. Friester, 37 Ohio St., 477; Henchey v. Chicago, 41 Ill., 141; Getchell v. Clark, 5 Mass., 309; Forsythe v. Beveridge, 52 Ill., 268; Simmons v. Almy, 103 Mass., 33; Hobson v. Watson, 34 Me., 20; Shank v. Shoemaker, 18 N. Y., 489; Patten v. Wilson, 34 Pa. St., 299; Sherry v. Oceanic Co., 72 Fed. Rep., 565; Kusterer v. Beaver Dam, 56 Wis., 471.
    If the courts below were right in holding that the company was trustee for Mr. Thatcher and was required to protect him as against his client, then we say that there was no sufficient notice given the company of the interest which Mr. Thatcher claimed in the cause of action or the fruits thereof, to require the company to hold any specific sum of money for him.

      A notice of this kind was held by our circuit court in an earlier case, to be entirely insufficient and we have seen no reason for reversing that holding in the present. Connell v. Brumback, 18 C. C. R., 514.
    The contract undertakes to make Thatcher a real owner of the tort and thereby makes him a necessary party to the determination of the liability of the railroad company for damages. In other words it introduces into the claim or the case, the claim of one who was not injured, and whose only interest in the claim is that of securing part of any fund produced, the practical result of which would be to prohibit any composition or settlement between Pennsylvania Company and Mattison if any settlement on a cash basis were attempted. It introduces into negotiations for settlement on the basis of a cash payment to the injured party, the claim of this person who was not injured, and who has no interest in the claim except as a possible creditor of the claimant.
    'It has long been held in this state that any contract whereby the attorney and the client agree that no settlement can be made without the consent of the attorney, is champertous and void. If the law is as stated, and if no contract can be made whereby such a settlement is prevented, then we desire to inquire how an attorney and client can do indirectly what the law expressly says they cannot do directly? Emslie v. Glass Co., 25 C. C. R., 548; Brown v. Ginn, 66 Ohio St., 316; Boogren v. Railway Co., 3 L. R. A., N. S., 379; Weller v. Railway Co., 66 N. J. Eq., 11.
    The theory of an equitable lien upon this fund having been created in favor of Mr. Thatcher, seems to us to be entirely unfounded, and is clearly shown in the reasoning of the court in the case of Weller v. Railway Co., 57 Atl. Rep., 733.

      Mr. Charles A. Thatcher; Mr. Curtis T. Johnson and Mr. G. B. Keppel, for defendant in error.
    An assignment to an attorney by a client, of an interest in the subject-matter of a claim for personal injuries equal to the former’s fees, and a portion of which may be recovered in case of settlement, by some authorities creates an interest in the fund in the nature of an equitable property ; by others it is denominated an equitable assignment. But, whatever term is applied to it by way of description, the result reached is to give to the assignee a property right in the thing assigned, a right which is cognizable and enforceable in a court of equity. Railway Co. v. Volkert, 58 Ohio St., 362; 2 Story on Equity Jurisprudence, Section 1044.
    This contract is not' deemed as champertous by any of the cases in Ohio bearing upon the subject, and certainly it is not objectionable if tested either by the syllabus or by the reasoning of the opinion in the recent case of Reece v. Kyle, 49 Ohio St., 574.
    Where a debt has been assigned, and a debtor has knowledge of' the assignment, any attempt to settle the case with the assignor and ignore the claims of the assignee, will be held to be futile so far as the rights of the latter are concerned.
    It thus appears that the right of a debtor to compromise will be preserved as respects his dealing with the real parties in interest of whose claims he has knowledge; and if this be so, the release by one of the parties in interest cannot affect the portion of the debt belonging to another.
    It has been held that a simple contract for a share of the recovery, as compensation for the attorney’s .services, is a binding and legal contract. In many cases that is the only way in which a man without money or means can have his action conducted and tried, and in all cases such contracts are sustained by the courts. Emslie v. Glass Co., 1 C. C., N. S., 603.
    As soon as the settlement was effected and the money was ready for payment, the lien of Thatcher upon a portion of it arose and was not ¿•defeated by subsequent payment to Mattison by the Pennsylvania Company, as it had both actual and constructive notice of the lien, and while it does not appear that it knew the share of the fund that Thatcher was entitled to receive, its duty was to ascertain the amount and retain it for him. Fischer-Hensen v. Railroad Co., 173 N. Y., 492.
    .The lien was not affected by the adjustment, but leaped from the extinguished cause-of action to the amount agreed upon in settlement.
    An assignment of a portion of whatever may be recovered in an action by way of compromise, is not against public policy as preventing compromise of disputed claims. 1 Current Law, 223; Phillips on Pleadings, Section 452.
    The rule is also established that it is not necessary that the entire fund or debt should be assigned, but some definite part or portion of it. 2 Pomeroy on Equity Jurisprudence, 291; 1 Current Law, 223.
    If the attorney give notice to the defendant not to pay until his bill shall be discharged, payment after such notice would be in his own wrong, and like paying a debt which had been assigned after notice. Read v. Dupper, 6 Term R., 361; Stoddard v. Benton, 6 Colo., 508; Hoffman v. Vallejo, 45 Cal., 564; Smith & Baylies v. Railway Co., 56 Ia., 720.
    The right of the attorney to be protected against collusive settlements that deprive him of his costs is just as much entitled to protection, as it would be against a similar fraud to defeat his lien on the verdict or judgment. The difference is in the manner the remedy is to be applied, rather than in the remedy itself. Railroad Co. v. Ackley, 58 Ill. App., 572; Weeks v. Judges, 73 Mich., 256; Line v. McCall, 126 Mich., 497; Moore & Moore v. Robinson, 35 Ark., 297; Savage v. Gregg, 150 Ill., 161; Potter v. Hunt, 68 Mich., 242; Freeman on Judgments (12 ed.), 425; 2 Story on Equity Jurisprudence, Section 1047.
    A valuable case is that of Railway Co. v. Ginther, 72 S. W. Rep., 166, in which the contract contains practically the same language as in the case at bar.
   Davis, J.

In P. C. C. & St. L. Ry. Co. v. Volkert et al., 58 Ohio St., 362, this court held that an assignment to an attorney of an interest in an existing judgment, in consideration of legal services rendered in procuring the judgment and other services to be rendered in sustaining the judgment is not champertous, and that such interest is not enforceable in a suit at law at the instance of the assignee against the judgment debtor only, but that it may be enforced in equity. Assuming, therefore, for the purposes of this case, that an assignment before judgment rendered, and even before action brought, of an interest in “the subject-matter of said claim equal to said fees,” does not interfere with the right of the assignor to compromise with the tort-feasor, and conceding, also, for the purposes of this case, the claim of the defendant in error that the contract amounts to an equitable assignment of an interest in the proceeds of the compromise, still it must be apparent that the defendant in error mistook his remedy. This is an action at law against the tortfeasor alone and not a proceeding in equity. It is just such a suit as the court, in the case cited, declared could not be maintained. The action is against the plaintiff in error only and the gist of the petition is that the plaintiff in error agreed with the defendant in error to adjust the claim of his client through him; that it violated the agreement and that it thereby became indebted to him, allowing credit for three hundred dollars paid by Mattison, in the sum of seven hundred dollars, with interest, for which he prays judgment and other proper relief. It is a clear-cut action for a money judgment and was so regarded by all the parties; for when the cause came on for trial, the record says: “A jury was waived by all of the parties to this cause, and it was tried to the court.” If it were a suit in equity to reach the fund in the hands of Mattison, or to set aside the agreement of compromise for fraud, or to declare the plaintiff in error to be a trustee for the defendant in error, the petition necessarily would have been entirely different in form and substance, and Mattison would have been a necessary party. Therefore if the courts below were right in holding that the defendant in error had an equitable interest in the fund resulting from the compromise, they were wrong in holding that he could recover against the plaintiff in error alone in a suit at law. This is so not only on authority of the Railway Co. v. Volkert, supra, but for the added reason that the record does not disclose any degree of evidence that plaintiff in error ever agreed with defendant in error to adjust the claim with him only and to pay to him the amount which might be agreed upon in settlement, that allegation and the alleged violation of it being the backbone of his suit at law against the plaintiff in error only. The notice which was sent to the plaintiff in error by .the defendant in error does not tend to prove such an agreement. It merely apprised the plaintiff in error that the defendant in error claimed to have an assignment of “a portion of whatever may be paid.” It contained no assertion that whatever might be paid should be paid to him or that it might not be paid to his client, and there is no evidence that it was assented to in that sense, or any other sense. It was not a notice that the defendant in error claimed an interest in the amount which might be agreed upon by way of settlement, before it left the hands of the plaintiff in error; but it was a notice of a claim upon the fund created by payment, into the hands of Mattison, that is after it should become “paid.”

Again, the notice did not truly state the nature of the interest which was assigned. It was not an assignment of “a portion of whatever may be paid in suit or settlement;” but was in fact an attempt to assign an interest “in the subject-matter of the claim” equal to the defendant in error’s fees. This would seem to be an assignment, to the defendant in error, of the very substance of the suit. Whether such an assignment is valid and enforceable against the tortfeasor, is at least doubtful. The reasons against the enforcement of such an assignment have been very clearly set forth by the Court of Errors and Appeals of New Jersey. After referring to the doctrine of equitable .assignments of a portion of a claim for damages for personal injury, which has already been prosecuted to judgment, the court, speaking through Magie, Chancellor, says: “But such a question is not presented in this case, and the argument suggested is wholly inapplicable to. the situation disclosed by this bill. No judgment was recovered upon any of these claims for damages. What occurred between the parties was this: The alleged tort-feasor, the defendant company, admitted its liability for the injuries for which damages were claimed, treated with the injured persons with respect to the amount of compensation to be paid for a release of the claims, and when that amount was agreed on between them paid the same to the injured persons and simultaneously received from them complete releases therefor.

“That a person h.aving a valid claim to recover damages for a personal injury may bargain with his attorney and agree to pay him for his services a share of the amount received or recovered, and that such agreement may be Enforced between them seems to admit of no question. But the contention on the part of complainants is that the' attorney holding such an agreement or assignment of a share of the damages received may, by giving notice thereof to the tort-feasor, impose on the latter an obligation to account to him for such share of the compensation for such injuries as may be agreed upon between him and the person he has injured. To give such effect to a notice of such assignment would obviously operate to practically prohibit any composition between a tortfeasor and the person he has wronged, when the composition consists of a cash payment to the latter for a release. It would introduce into the negotiation for settlement, on the basis of a present payment to the injured person, the claim of one who was not injured, and whose only interest in the claim is what Lord Tenterden, in dealing with actions prosecuted in forma pauperis, called the ‘spes spolii.’

“Nor will such assignment fall within the reason of the doctrine respecting equitable assignments of choses in action under the circumstances disclosed in this bill. Such assignments admittedly operate only where some fund or property comes into existence arising out of a previous possibility. Lie who holds such a fund may then be liable to account to the assignee thereof. Where a composition is made between the tortfeasor and the pers.on wronged, on the basis of a payment for a release, the fund does not come into existence until the payments and the release are simultaneously exchanged. Then the fund thus created is in the hands of the releasor, and the assignee may follow it there; but it never existed in the hands of the releasee.” Weller v. Jersey City, Hoboken & Paterson St. Ry. Co., 66 N. J. Eq., 11, 18-19.

If this reasoning is entirely sound, it would seem to result inevitably that under such an agreement as this the assignee could not maintain an action against the tort-feasor, but must work out his remedy through the assignor; and so it was held in that case, which was upon a demurrer to a bill in equity against the tort-feasor only.

There is no statute in this state which gives to an attorney a lien upon his client’s cause of action and provides a remedy for the enforcement of such lien; and therefore the opinions of courts in such states as have such- legislation are not generally of much value here, where an attorney’s lien before judgment has not been heretofore distinctly recognized.

But whatever were the original rights of the defendant in error, he abandoned the pursuit of the fund in the hands of Mattison, and in consideration of the deposit of three hundred dollars released Mattison and agreed to prosecute the plaintiff in error for the balance of his fees. His right to follow the fund in the hands of Mattison is unquestioned in any view of the case. This right he has not exhausted and has voluntarily surrendered, although the uncontradicted testimony of Mattison is that, for more than a year after the settlement with the plaintiff in error, he had more than two thousand dollars of the money on deposit in a bank in the same building in which the office of the defendant in error is located. His right to recover from the plaintiff in error, if any, must be worked out in equity through his client and must depend on the existence of some legal liability to him, the violation of some duty which the law imposes; and this we do not find in the circumstances of this case.

We are, however, not at all impressed with the contention of the plaintiff in error that the liability, upon whomsoever it rested, was discharged by payment. Something more than seven hundred dollars, it is true, was temporarily in the hands of the defendant in error. It was not placed there for the purpose of payment, but wholly in compliance with his request to be allowed to count it. When the defendant in error after counting the money' said that he would keep it and apply it on account, the suggestion was resented and he returned it. He could not have kept it under the circumstances without being guilty of a crime.

For the reasons stated the judgments of both the courts below are reversed and judgment is entered for plaintiff in error.

Price, C. J., Shauck, Crew, Summers and Spear, JJ., concur.


author: Spear, J.

text:
    Speidel, Admr., et al. v. Phillips.

      Claim on unwritten contract against estate — Allowed by administrator and subsequently rejected — Under Section 6098, Revised Statutes — Suit may be brought, though six years have elapsed, when — Application of statute of limitations.

    Suit upon a claim founded on a contract not in writing againsf the estate of a deceased person which claim has been duly presented for allowance to the administrator, and duly allowed by him, and subsequently, at the instance of an heir or creditor, disallowed and rejected, may, by force of section 6098, Revised Statutes, be brought within six months after notice of such rejection, notwithstanding that, deducting the time intervening between such allowance and such rejection, more than six years have elapsed after the accruing of the cause of the action. Thomas v. Chamberlain, 39 Ohio St., 112, distinguished.
    (No. 10282
    Decided May 19, 1908.)
    Error to the Circuit Court of Columbiana county.
    Action was brought June 6, 1905, before a justice of the peace of Columbiana county by the defendant in error, J. Walter Phillips, against the plaintiff in error, Speidel, as administrator of Lizzie Weir, deceased, and Emma G. Ruble, to recover on an account for work and labor and material, the last item of which was dated April 27, 1899. Judgment having been obtained before the. magistrate the cause was appealed to the court of common pleas. ' The petition in that court, among other things, charged that on April 22, 1905, the plaintiff presented said account duly authenticated tp the defendant, the administrator, who thereupon on said day allowed the same as a valid claim against said estate and duly endorsed such allowance .thereon; that on May 16, 1905, said administrator, at the instance of the defendant Emma G. Ruble, who was legally interested in the estate, rejected and disallowed the claim, and still refuses to allow and pay the same.
    In their answer the defendants among other things, averred that due notice of the disallowance and rejection of the claim was given the plaintiff May 16, 1905, “and that the alleged cause of action in the plaintiff’s petition set forth, after deducting and allowing for that period of time from the original allowance of said claim, on April 22, 1905, until the time of actual notice to plaintiff of its disallowance and rejection, as aforesaid, by said administrator, and exclusive thereof, did not accrue within six years next before this action was originally begun, which was June 5, 1905.”
    To this answer a demurrer was interposed, which being sustained, and defendants not desiring to further plead, judgment was rendered for plaintiff. This judgment was affirmed by the circuit court, and the defendants below bring error.

      Mr. W. S. Emmons, for plaintiffs in error.

      Mr. J. G. Moore and Mr. A. V. Johnson, for defendant in error.
   Spear, J.

It is to be noted that the only defense pleaded was the six years’ statute of limitations, the allegation being, and it is true, that more than six years intervened between the accruing of the cause of action on the account and the commencement of the action before the justice even deducting therefrom the time which intervened between the date of the allowance by the administrator and the notice to the plaintiff below of the disallowance of the claim. So that if the six years’ statute applies then the judgment below was wrong'. It is not, and could not reasonably be claimed, that the allowance of the claim did not arrest the running of the statute. Admr. of Gilbert v. Admr. of Little, 2 Ohio St., 156; Taylor v. Thorn, 29 Ohio St., 569; Thomas v. Chamberlain, 39 Ohio St., 112. But the claim is that with the removal of the disability to bring action by the rejection of the claim the statute was enlivened and commenced to run again. Counsel for plaintiffs in error also urge that the six years’ limitation does apply, and the proposition tersely stated is that the language of the statute, sections 4979 and 4981, Revised Statutes, providing that a civil action upon a contract not in writing can only be brought within six years after the cause of the action accrues, is a definite and distinct inhibition against the bringing of such action after the six years; that the statute of limitations being a statute of repose the suspension of the right should not be extended because the party is entitled only to the available days, those within which such suit might be brought, for otherwise the repose which the statute is intended to effect would be destroyed.

This on its face is a plausible view. But is it sound? In Thomas v. Chamberlain, supra, it is held that: “In an action against an administrator on a note which matured more than fifteen years before the commencement of the suit, where it is alleged in the petition that before the expiration of fifteen years from its maturity, the note, duly verified, was presented to the administrator for allowance as a valid claim against the estate and the same was duly allowed, an answer which does not deny the fact of such allowance but simply avers that the action was not commenced within fifteen years from the maturity of the note is bad on demurrer.” It is also held in that case that the six months’ limitation prescribed by section 6097, Revised Statutes, applies to a case where a claim, when first presented for allowance is rejected, but has no application to a case where the claim has been duly allowed by the administrator and afterwards rejected by the same administrator or an administrator de bonis non. It is difficult to see how, in the face of this adjudication, the claim of plaintiffs in error can be seriously insisted upon. This holding, it is to be observed, is based upon the statute as it stood November 11, 1873, the time that suit was commenced, and of course does not take account of subsequent legislation, because of which fact another view of the situation is pertinent, which view however, leads to the same result. Section 6097 provides that where the claim is rejected, and shall not have been referred, the claimant shall, within six months after such rejection, if the debt or any part be then due, or within six months after some part shall become due, commence a suit or be forever barred from maintaining any action thereon, which is the statute referred to in the opinion as applicable to the case above cited. A supplementary act was passed in 1877, (74 Ohio Laws, 91), which makes provision for the rejection of the claim' against an estate on the demand of any' heir, creditor, etc., and requiring suit to be commenced on any such rejected claim within six months after such rejection. This act did not in terms cover the case of the rejection of a claim which had once been allowed. But,' by an amendment adopted May 7, 1878, (75 Ohio Laws, 881), there was incorporated the clause “and whether said claim has been allowed or not.” This legislation is carried into the Revised Statutes as section 6098, and is the section which applies to the present case. Its provisions authorized the demand made by the plaintiff in error, Emma G. Ruble, upon the administrator to reject Phillips’ claim. This section also provides that the claimant shall be required to bring his action within six months after such rejection. Now, it is true that neither of the sections cited refers in terms to the general statute of limitations, yet it is a fair inference to assume that the converse of the requirement as to the time within which suit must be brought is to be presumed; that is to say, such creditor must bring his action within six months or be barred; but if he does bring it within six months he shall not be barred. Pursuing this line of thought further it may be reasonably assumed that in framing section 6098 the law-makers, having before them the special subject and situation of the creditor’s standing with respect to a claim once allowed and later disallowed, legislated with respect to that particular situation. In such case the provision of the general limitations statute (section 4976), to the effect that “where a different limitation is prescribed by statute that shall govern,” and the rule that where general and special provisions of statute appear on their face to conflict, the latter shall control, would seem to have application.

We are of opinion that the case at bar comes within the purview of section 6098, Revised Statutes, and conclude, therefore, that in the present case Phillips had six months after the rejection of his claim within which to bring his action notwithstanding more than six years had elapsed after the accruing of the. cause of action. The opposite conclusion would practically defeat a claim which might be allowed on the last day of the six years and disallowed on a subsequent day, for the time within which suit could be brought would be wholly gone or be so short as to make the bringing of it impracticable, a result which the general assembly cannot have intended. This conclusion is somewhat aided by the holding in Stewart, Admr., v. McLaughlin, Admr., 47 Ohio St., 555, and is consistent with the spirit of the opinion of Mcllvaine, J., in Thomas v. Chamberlain, supra.

Judgment affirmed.

Price, C. J., Shaucic, Crew, Summers and Davis, JJ., concur. •