author: Spear, C. J.

text:
    Reece v. Kyle.

      Contracts — Illegal and Champertous — What are not.

    An agreement between client and attorney by which, in consideration of an assignment to the attorney of a judgment obtained by him for the client, the attorney agrees to render legal services in an effort to collect the judgment, to advance costs and expenses in the first instance, one-half to be repaid by the client in case of failure, and the net proceeds of the judgment, in case of success, to be equally divided, is not without consideration, nor unlawful on the ground of champerty, and if otherwise valid, will be enforced.
    (Decided June 20, 1892.)
    Eeror to the'Circuit Court of Greene county.
    The action below was by the defendant in error, as as-signee for the benefit of creditors, of one Janies C. McMillan, .against the plaintiff in error, brought to procure the cancellation of an assignment, executed by McMillan to Reece, of ,a judgment in favor of the former, against The West Hamilton Hydraulic Company, and to enjoin the prosecution of an action then pending in the court of common pleas of Hamilton county, which had been commenced by Reece, as .assignee of the judgment, to enforce statutory liabilities against stockholders of the company.
    The averments of the petition material to the present inquiry, are, in substance, that at the date of the assignment to Reece, McMillan was insolvent, and that shortly thereafter he made a general assignment to plaintiff; that the pretended contract with Reece was without any consideration, paid or to be paid; that Reece was a practicing lawyer and well knew that any claim made against the stockholders would' be contested by them, and that for the purpose of stirring up and maintaining a suit against the stockholders, he entered into the contract; that he caused an execution to issue on the judgment, which being returned unsatisfied, be then commenced an action in the common pleas court of Hamilton county, against the company and the stockholders, for the purpose of enforcing stockholders’ liability, which suit is pending, and that unless restrained, and the champer-tous agreement held to be void, Reece will appropriate to-his own use the one-half the net proceeds realized from the suit.
    In his answer, Reece denied the improper motives and purposes charged. He also denied that the contract was without consideration, and averred that the assignment of the judgment was in consideration of his services therein, and for other valuable considerations, of which were the professional and legal services in obtaining the judgment, and that one-half the expense of further proceedings to collect was to be borne by defendant in case nothing should be realized from the judgment.
    A copy of the contract referred to is as follows:
    Xenia, Ohio, November 9, 1885.

    “It is hereby agreed by and between James C. McMillan and P. A. Reece, that:
    “Whereas, in consideration of valuable legal services rendered and to be rendered, and one dollar and other good and valuable consideration from said P. A. Reece proceeding, the receipt of which is hereby acknowledged; and
    “Whereas, said McMillan has this day assigned and transferred to said Reece a certain judgment obtained by said James C. McMillan against The West Hamilton Hydraulic Company (an incorporation duly incorporated under the laws of Ohio) and others defendants, in a certain suit had in the Butler county common pleas court, state of Ohio. Now, therefore, said Reece is to prosecute said judgment claim as may be expedient in his judgment and proceed to collect the same or so much thereof as may be practicable, and is to receive for his services therein, the one-half of the net proceeds thereof, the other half of said net proceeds to be paid to said McMillan; said Reece to advance the amount necessary for expenses of the case; and one-half of said expenses is to be repaid to said Reece in the event nothing is realized from said judgment. But, notwithstanding said McMillan was a stockholder in said company to the extent of one-half of all the stock of said company during the time the said liability was incurred, the said McMillan is not to he made a party defendant to any proceedings to enforce or collect said judgment claim, nor in anyway to be held liable for any part of said judgment.”
    “James C. McMieean,
    PATTERSON A. REECE.”
    Upon trial the Circuit Court found the contract without consideration, champertous and void, and adjudged that the same be- cancelled and held for naught. Motion for a new trial being overruled, the case is brought to this court upon a bill of exceptions setting out all the evidence.

      Little & Spencer, Alfred Yqple and P. A. Reece, for plaintiff in error.
    I. Defendant in error did not show want of valuable consideration from Reece for the transfer of 'the judgment.
    Is it not plain that the assignee failed to show want of consideration, and that the decision of the court on this point was not warranted by the evidence, but that on the contrary the evidence plainly shows that the services of plaintiff in error, previously rendered to McMillan in this and in other matters, were the valuable consideration for which the judgment was transferred to Reece, and that it was a bona fide sale of one-half of the judgment with the transfer of the title of the whole judgment?
    II. The agreement was not illegal nor contrary to public policy. There is no statute on the subject of champerty in Ohio. Keysy. Vattier, 1 Ohio 132, 143; Hall v. Ashby, 9 Ohio, 96, 99; Weakly v. Hall, 13 Ohio 174; Lewis v. Lewis, 15 Ohio,. 715, 716; Reidy. Quigley, 16 Ohio, 445; Stewart y. Welch, 41 Ohio St., 483, 502.
    The .principles which we think can justly be deduced from all these decisions are, that where the .grantor either had: 1. Good title, (as here, claim reduced to judgment); or, 2. Was assigned for a valuable consideration; or, 3. where assignor was liable for his expenses and costs, the contract was not cliampertous. In tbe case at bar there are all three combined. 1. McMillan’s claim was reduced to judgment and was no longer in dispute. 2. He received the services rendered in obtaining said judgment and in other matters worth more than he considered the judgment then worth. 3. He was liable'for his own half of the expenses. Hence the contract was certainly legal and the court below manifestly and materially erred in deciding that it was illegal and champertous and void, and the judgment below should be set aside for this reason.

      Charles H. Kyle, T. L. Magmder and Ramsey., Maxwell & Ramsey, for defendant in error.
    Brief of Lawrence Maxwell, Jr.

    The agreement was clearly champertous and void. It is immaterial that it was made to take the form of an assignment of the claim. Stewart v. Welch, 41 Ohio St., 484.
    Reece’s agreement to advance the funds for carrying on the litigation, would, of itself, make the agreement champer-tous. Meeks si. Dewherry, 57 Ga., 263; Taylor si. Hinton, 66 Ga., 743; Stearnssr.Felker, 28 Wis., 594; Thomsonst,Rey-nolds, 73 Ill., 11; Coleman v. Billings, 89 Ill., 183; Coiighlin v. Railroad Co., 71 N. Y., 443; Million v. Ohnsorg, 10 Mo., App. 432; Railroad Co. v.Johnson, 29 Kan., 218, 225; Hut-ley v. Hutley, E. R. 8 Q. B„ 112; Wald’s Pollock on Contracts, 295, and note.
   Spear, C. J.

The real question is, whether or not the contract, as explained by the other evidence, is without consideration, illegal and void.

As a first step at the trial, plaintiff sought to contradict and vary the terms of the written instrument by parol evidence, and for this purpose called McMillan, the assignor. The witness testified that he received no consideration whatever for the assignment of the judgment. In the light of bis further testimony, it is fair to assume that he meant by this only that he received no money consideration, and that nothing was actually paid to him, for he proceeded then to state that the valuable services rendered and to be rendered, referred to in the agreement, formed no part of the consideration for the assignment. This statement, taken in connection with the whole testimony of the witness, is, after all, but an opinion — the stating of a conclusion of law. Rc stated further that the agreement Was entered into on the afternoon of November 9, and that before noon of that day he had made a complete settlement with Reece, as the receipted bill would show. The bill referred to, which covers several pages, extends over four years .of time, and contains a large number of items, is receipted thus: “ Rec’d payment of all above accounts.” This is.a complete settlement oí the items in the bill; it does not purport to be a settlement in full of all claims. Nor is it pretended that Reece had been paid his fees for obtaining the judgment save as appears by the bill. Among the items we find one of ten dollars which is a specific charge for services in the suit against the West Hamilton Company. It is possible that another charge of like amount is intended for services in this case, but if so, the two together would be an exceedingly meager charge, and wholly out of proportion to the probable work and the amount involved. By reason of some misunderstanding, as it appears, Reece was not present at the trial. This left the plaintiff opportunity to give uncontradicted proof, and make the best case possible. Had McMillan been possessed of facts which would impeach the writing, as to 'services past and to come, it is presumed he would have stated them; at least nothing prevented, No proof was offered by defendant, and so we have a question upon the un-contradicted evidence of plaintiff. The proof actually made, we think, is not of that high character required to overcome the statements of the written agreement, signed by the parties, as to past and future services, and the presumption that, under all the circumstances as shown, there was, at the time, an understanding between them, that Reece still had an unsatisfied claim for services in procuring the judgment, and that he had such claim in fact.

This, then was the situation. Reece had an unsatisfied claim for fees in obtaining a judgment for McMillan. His relation as attorney, as to that judgment, had not terminated. His claim gave him an equitable interest in the judgment, and a lien upon it. It was of uncertain value. McMillan was impecunious, and, in fact, insolvent. He had, not the means to then prosecute farther, and, aside from that, was disinclined to do so because several stockholders of the Hydraulic Company were his relatives, and hence he wanted to dispose of the judgment. Reece was willing to take an assignment of it coupled with the obligation to proceed to enforce collection by action against the stockholders, within his discretion, at his own expense in the first instance, but if not made by the anticipated proceeding, then one-half the expense to be repaid by McMillan, and the net proceeds, if successful, to be equally divided. The effect of the assignment, if legal, was to make them joint owners of the j udgment, the legal title being in Reece. If the parties could not legally enter into such a contract, then the judgment of the circuit court'is right; if they could, it should be reversed. There is no question of fraud as between debtor and creditor, nor of undue advantage, or bad faith between attorney and client, in the case; nor can wé assume, considering the doubt as to the collectibility of the judgment, and the character of the proceeding which it would be necessary to prosecute and maintain in order to enforce it, that the contract was unreasonable,

The contract is assailed as being without consideration, and champertous. If the agreement was illegal, because champertous, then there was no consideration, and the contract was void. So, there is at last, but one question, and that is: Will a promise by an attorney to render legal services in an effort to collect a judgment, for obtaining which the attorney has not been fully paid, and to advance costs and expenses in the first instance, one-half to be repaid by the client in case of failure, form, as between attorney and client, a valid consideration to support an assignment oí a judgment, the net proceeds of which are to be equally divided in case of success ?

Maintenance is defined to be an officious intermeddling in a suit that no way belongs to one, by assisting either party, to the disturbing of the community by stirring up suits; champerty, a species of maintenance, being a bargain with a party to divide the land or other matter sued for between them, if they prevail in the suit which the champertor undertakes to carry on at his own expense; though if a man have any interest, however slight, in the subject of the matter about which the suit is to be brought, or is depending, the aid given has been held not to be maintenance. Statutes in relation to maintenance and champerty were first enacted in England at an early day. Additional legislation was found necessary during the. reign of Henry VIII. It. was common then for nobles and other powerful men to take transfers of pretended rights in action, especially of lands from persons not in possession, and prosecute them, to the great oppression of the weak. Juries were made up, in large part, of the dependents of such-men, and the processes of law were thus converted into engines of oppression. The statute of 32 Henry recites that “ the King our sovereign lord, calling to his most blessed remembrance, that there is nothing within this realm that conserveth his loving subjects in more quietness, rest, peace and good concord, than the due and just ministration of his laws, and the true and indifferent trials and issues, as been to be tried according to the laws of his realm, which his most royal Majesty perceiv-eth to be greatly hindered and letted by maintenance, em-bracery, champerty, subornation of witnesses, sinisterlabour, buying of titles and pretended rights of persons not in possession, whereupon great perjury hath ensued, and much in-quietness, oppression, vexation, troubles, wrongs and disinheritance hath followed among his most loving subjects, to the great displeasure of Almighty God, the discontentation of his Majesty, and to the great hindrance and let of justice within this his realm,” The buying of pretended titles by those not in possession, and acts of champerty and embrac-ery, were, by this statute, forbidden under penalty of sweeping forfeitures of lands, the one-half to go to “ the King, our sovereign lord,” to relieve, it may be respectfully presumed, the discontentation,” referred to.

That there was necessity for such statutes, the history of that time, as gathered from Hume and other historical writers, as well as from law writers, sufficiently shows. Hume says: Instead of their former associations for robbery and violence, men entered into formal combinations to support each other in law suits, and' it was found necessary to check this iniquity by act of parliament.” And, speaking of the subject, Coke says: “Nothing in action, entry or re-entry, can be granted over, for so, under color thereof, pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed.” Rights in action were forbidden to be transferred “ lest justice should fail and oppression result.” But, as methods of judicial procedure improved, and a firmer and purer administration of justice was attained, and popular rights received wider recognition, the mischiefs complained of became less apparent, and the enforcement of such statutes became of less and less importance. Then followed judicial modifications and exception to the sweeping inhibition of the statutes. Exception was made where the person maintaining and the suitor stood in some social relation, as that of relatives by consanguinity or affinity, master and servant, or landlord and tenant. Other exceptions are adverted to by Mr. Justice Butter, in Master v. Miller, 4 D. & E. 340-1 (1791), as follows: “It is laid down in our old books that for avoiding maintenance a chose in action cannot be assigned, or granted over, to another. The good sense of that rule seems to me to be very questionable; and in early as well as modern times it has been so explained away, that it remains at most only an objection to the form of the action in any case. * * It is curious and not altogether useless to see how the doctrine of maintenance has from time to time been received in Westminster Hall. At one time not only he who laid out money to assist another in his cause, but he that by his friendship or interest saved him an expense which he would otherwise be put to, was held guilty of maintenance. Nay, if he officiously gave evidence, it was maintenance; so that be must bave a subpoena, or suppress the truth. That such doctrine, repugnant to every honest feeling of the human heart, should be soon laid aside, must be expected. Accordingly a variety of exceptions were soon made; and amongst others it was held, that if a person has any interest in the thing in dispute, though on contingency only, he may lawfully maintain an action on it. 2 Roll. Abr. 115. * * * So an assignment of a chose in action has always been held a good consideration for a promise, 1 Id. 29; Sid. 212, and T. Jones, 222; and lastly, by all the judges of England, in Mouldsdale v. Birchall, 2 Black. 820, though the debt assigned was uncertain. After these cases, we may venture to say that the maxim was a bad one, and that it proceeded on a foundation which fails.”

Among the reforms in England may be mentioned the enactment of statutes for the limitation of actions, the statute of frauds, the extension of the action for malicious prosecution, and that for awarding costs against unsuccessful parties, all which have been passed since the acts relating to maintenance. These changes have contributed materially to the discouragement of groundless and vexatious litigation, and it has resulted that the law of maintenance as originally understood and enforced in England, has been essentially modified, and is said by Story, (Contracts §711,) “to be now confined to cases where a stranger, having no interest in the suit, improperly, for the pupose of stirring up litigation and strife, encourages others to bring actions, or make defences which they have no right to make,” citing Eord AbiNGER, in Findar v. Parker, 11 M. & W., 675.

In several of the states of the union statutes have been passed making maintenance in varying forms unlawful, while in other of the states the doctrine is scarcely recognized even by the courts. No statute similar to the English statutes has ever been enacted in Ohio. Champerty has, however, been the subject of judicial inquiry, and has been held to avoid contracts in which it was present. In Key v. Vattier, 1 Ohio, 182, the vice of the contract was that the attorneys were to save and keep the client harmless from all costs and charges, and no compromise was to be made except the attorneys join in it. In Weakly v. Hall, 13 Ohio 167, the debt was released by the creditor to the debtor, after assignment by him under an agreement by which the assignee, not a lawyer, engaged to collect the claim in the assignor’s name, to employ counsel, advance all money, procure bail, etc., reimburse himself for his allowances from the proceeds when collected, and receive a portion of the avails for his compensation, and the court held the release effectual, although suit had been commenced and money expended in accordance with the contract. In Stewart v. Welch, 41 Ohio St. 483, by a divided court, it was held that a contract whereby the claim was assigned to Welch, who brought suit in his own name, could not be enforced, it appearing that the contract was made for the purpose of carrying on litigation without expense to and free from control of the assignor, who was to receive nothing except a share of the recovery.

It will be noted that there are important distinctions between these cases and the case at bar. In each case the suit was to be prosecuted wholly without cost or expense to the original owner of the claim, and it does not appear that the party maintaining the contract had any interest in or claim upon the cause of action other than that given by the assignment. So that, for the purpose of nullifying the contract between McMillan and Reece, we are asked to take a step in advance of previous decisions. Ought this to be done?

It is difficult at best, to reconcile the strict law of maintenance and champerty with our ideas of the rights of property, and the right of the citizen to contract. Among the fundamental rights is the right to acquire, possess and dispose of property. The right of disposition necessarily inheres in the right of ownership. We are taught that a chose in action is as much property as a thing in possession, and that in this day the right to dispose of such property is as high and free from doubt as is the right to sell the horse, or farm of which the seller has manual possession. And if one may lawfully dispose of such property why may he not dispose of it upon sucb terms as to him may seem advantageous?

That tbe consideration received by McMillan is a promise by Reece cannot be fatal to its legality. It would be conceded that McMillan might have assigned his judgement upon Reece’s written agreement to dig a ditch, or plow a field, or build a house. So, too, Reece might have agreed to sell his legal services for a promise by McMillan for some labor or service on his part. And yet, while either can purchase of the other, there appears, under the early decisions, an insuperable objection to the valuable thing which each has, being the subject of barter between them. Upon reason, the objection would seem to lack substance. It has been based upon grounds of public policy.

Of course, if a proposed contract is clearly against public policy the courts will say it cannot be entered into. But why, applying this test, should we limit the subject of contracts for compensation otherwise than by discriminating against transactions which are prohibited by statute, or are immoral, or hurtful, in their nature, in the sense of contravening some established interest of society? That contracts similar to the one at bar were regarded dangerous three or four hundred years ago is not a powerful reason for so regarding them now, when we consider that social conditions, and the law in other important respects, have undergone radical changes. Fortunately the condition of society to-day is on a higher plane than in the chaotic times of the 8th Henry, our judicial methods are more enlightened, and the 'day of combinations among the powerful to oppress the weak in the courts has gone by.

It will be borne in mind that great scrutiny was given in England to the acts of counsellors and attorneys, because of the peculiar relation which .the law placed those officers in with regard to their clients. The former were incapacitated to make any contract for compensation with the client, though he might accept a gratuity, while the latter might make such contract only as the law had made for him in fixing for every service a corresponding fee. A contract, therefore, between a counsellor or attorney, and his client, for a share of the thing in suit, would have been invalid on this ground, as well as' others. No such strictness ever obtained here. Our laws have always recognized the right of either to compensation for his legal services, in a reasonable amount, either on a quantum, meruit, or upon special contract. Beyond this, the propriety of accepting compensation by way of a fee contingent upon the event of the suit, and payable out of the thing recovered, has been recognized. Also the advancing by the attorney, for the benefit of the client, of funds in payment of costs and necessary incidental expenses. Indeed, such advances by the attorney in the progress of litigation, is so common that to denounce the practice as improper would be to condemn the daily acts of the most honorable members of the profession. Wylie v. Coxe, 15 How. (U. S.)415; Stanton v. Embrey, 93 U. S. 548; Allards. Lamirande, 29 Wis. 502; Newkirk v. Cone, 18 Ill. 449; McDonald v. Railroad Co., 29 Iowa, 171; Quint v. Mining Co., 4 Nev. 304. This upon the idea of duty on the part of the profession to investigate the claims, and give professional aid in redressing the wrongs of the indigent who have been injured, for in this way many poor people are enabled to obtain justice, where, without such aid they would be remediless. And it has been considered that there is no practical distinction between such an arrangement and one where counsel undertake, for an agreed fee, to be paid in the future, the prosecution of a case for a client so poor that unless the cause be gained the attorney could not possibly realize any compensation whatever. That a contract of the latter kind is legal was held in Moore v. Trustees, 9 Yerg. 115.

As before' stated, we have never had in Ohio, any legislation upon that phase of maintenance known as champerty. But the evil of stirring up suits and controversies whereby persons should be defrauded or injured was early the subject of legislation. By the act of February 10, 1824, the encouraging, exciting, and stirring up of any suit, quarrel or controversy, between two or more persons, by certain named officers, including attorneys and consellors at law, with intent to injure such persons, was made an offense punishable by fine of not more than $500, and liability to the party injured in treble damages, which, as to the penal sanction, is the law to-day. It would seem that the terrors of this act would be sufficient to protect the people from any vestige of the evil tendency to combinations by the strong to injure the weak by oppressive litigation.

The conduct of attorneys is subject to proper scrutiny by the courts. The maintenance of a high character for dignity and integrity on their part, is essential to the security of community, and the due administration of justice. Any infraction of the letter of this statute would entail its penal consequences upon an offending attorney, and the courts would not hesitate to hold void any contract violative of its spirit, whether coming within the strict letter or not. So, too, the courts have been, and continue to be, careful not to sanction contracts which appear to encourage a gambling spirit, one leading to the prosecution of pretended or obsolete claims, for a possible high reward. And anything like sharp practice, or the taking of undue advantage by the attorney of the confidence or necessities of the client, would meet with no favor nor mercy at the hands of the courts. At the same time it would not be wise to carry rules adopted 'originally for the purpose of preventing the powerful from oppressing the weak by groundless suits in the courts, to the extent of hindering the weak in efforts to avail themselves of lawful remedies against the powerful, now that the conditions making the ancient rules necessary have substantially disappeared, and new conditions arisen by reason of which it has become the interest of the powerful to embarrass and hinder the dependent and weak from obtaining speedy justice in the courts. Nor would it be judicious to extend arbitrarily those rules which say that a given contract is against public policy, for men of full age and competent understanding ought to have the utmost liberty of contracting. Their contracts when entered into fully and voluntarily, should be held sacred and should be enforced by the courts, for it is a paramount public policy that courts should not lightly interfere with the freedom of contract. Sir G. JESSER, in Printing Co. v. Sampson, 19 L. R. Eq. Cas. 46 2. It is much more easy to denounce, in general and sweeping terms, contracts said to involve champerty as “odious,” and “worthy only of the severest condemnation,” than it is to point out wherein it is wrong to make an effort, under the circumstances disclosed in the case at bar, to enforce a claim solemnly adjudicated by a court to be just and legal, by one who has an interest in the judgment because of services rendered in obtaining it. It is difficult, also, to perceive how such a proceeding would contravene any established interest of society, or tend to corrupt the fountains of justice, or bring the legal profession into disrepute.

Decisions by courts of other states have been cited. We have examined them. Many are based upon statutes, and have but little bearing in this state. Others 'are in conflict, and cannot be reconciled.

The holding in the recent case of Penna. Co. v. Lombardo, recognizes the doctrine that a champertous agreement is against public policy, and void. As it is not stated -what will constitute champerty in an agreement, it is to be inferred that the doctrine is governed by previous holdings; and the point determined is, that, whether the contract between Eombardo and his attorney was shown to be cham-pertous or not, his claim against the railroad company was not affected by it. It is not necessary, in order to dispose of the present case, to unsettle the Uombardo case, nor any of the previous decisions of this court, and there is no purpose to do so. Nor is it necessary to formulate any new rule on the subject. Each case as it presents itself may be safely left for disposition on its own peculiar facts. We are not, however, disposed to go farther in enforcing the ancient rules, than the decisions by this court have heretofore gone. In the present case, if the contract rests upon a consideration which the law will sanction — and, for reasons heretofore stated, we think it does — there would seem to be an end of the inquiry. The promise to advance costs in the first instance is neither illegal nor improper, and the agreement to pay one-half the costs by Reece was no more than, being owner of one-half the judgment, he was in fairness and equity, bound to do. We conclude that the contract has not been shown to be wanting in consideration, or otherwise invalid.

Other questions were raised by plaintiff in error, but we do not regard them of sufficient importance to warrant discussion.

It follows that the judgment of the circuit court should be reversed, and the petition dismissed.

Judgment accordingly.


source: Caselaw Access Project

author: Wiixiams, J.

license: Public Domain

text:
    Railroad Co. v. O’Donnell.

      Conversion — What constitutes — Sufficiency of petition in action for— Measure of damages for — Common carriers — Duties of, as to goods shipped — When liable for conversion of — When not.

    1. A petition, in an action for conversion, which, with proper allegations of the plaintiff’s ownership of the property and of its value, avers that the defendant converted it to his own use, states a cause of action. It is not necessary to allege a demand of the property by the plaintiff, and a refusal to deliver it to him by the defendant.
    2. Such demand and refusal may afford satisfactory evidence of a conversion, but is -not the only evidence by which it may be proven. Any wrongful exercise of dominion over chattels in exclusion of the rights of the owner, or withholding of them from his possession under a claim inconsistent with his rights, constitutes a conversion.
    3. A common carrier who, having received goods to be carried to a designated place, transports them to another place, to prevent their coming to the possession of the consignee, and deprive him of their use and disposition, is liable for conversion of the goods.
    4. After such conversion, the consignee is under no obligation to receive the goods; and it is no defense to his action for their value, that they were tendered to him after the conversion, and then stolen without the negligence of the carrier.
    5. The motive by which a party was controlled in the conversion of property, is of no avail as a defense, though it may be shown when exemplary damages are claimed.
    6. As a general rule, a common carrier is not liable for the loss of goods, if they be taken from his possession by legal process against the owner, or if, without the fault of the carrier, they have become obnoxious to the police regulations of the state, and are seized and destroyed under their authority; but, to protect the carrier in such cases, it is necessary that the seizure be made without his procurement or connivance, that the proceeding or process under which it is made appear to he valid, and, that the carrier give prompt notice of the seizure to the owner.
    7. It is the duty of common carriers to provide sufficient and suitable means for the carriage of the goods they receive, and to make delivery of them with all convenient dispatch; and, while accidents and obstructions will excuse delay, they do not put an end to the contract, which must be completed as soon as the impediment to the transportation of the property is removed, or can reasonably be overcome.
    8. Where there has been delay merely, in the delivery of the goods to the consignee by a common carrier, and not a conversion of them, the measure of damages is ordinarily the difference between the value of the goods when they were delivered, and when they should have been delivered; to which may be added reasonable expenses caused by the delay; but if there has been a conversion of them by the carrier, and the consignee has not thereafter accepted them, he is entitled to recover the value of the goods at the time they should have been delivered to him.
    9. The rule, that to entitle the consignee to the possession of the goods he must pay or tender to the carrier the legal charges for their carriage, has no application in an action against the carrier for the conversion of the goods.
    (Decided June 28, 1892.)
    Error to tbe Circuit Court of Ricking county.
    The action below was brought in the Court of Common Pleas of Ricking county, by James O’Donnell, against The Baltimore & Ohio Railroad Company, to recover damages for the conversion, by the defendant, ot certain property of the plaintiff.
    The petition alleges that the defendant, an incorporated railroad company and common carrier of freight by express, for hire, operating as such, its line of railway between Newark and Shawnee in this state, received at Newark, on the 1st day of January, 1885, to be so transported by express to Shawnee, a quantity of fire-arms and ammunition, belonging to the plaintiff, and consigned to him at Shawnee. The defendant, it is alleged, did not transport the property to. Shawnee, as it was bound to do, but retained and concealed it, and carried it out of the state, for the purpose of depriving the plaintiff of its use, possession, and disposition, and was thus guilty of its conversion. It is alleged that the property was of the value of $1,500, and that, by reason of its conversion, the plaintiff was damaged in the sum of' $2,000.00, for which he asked a judgment.
    The answer admits the defendant received the goods, as averred in the petition, but denies that the plaintiff' was the owner of them, or that the defendant was guilty of their conversion. The answer avers, as a separate defense,, that it was impossible to carry the goods to their destination,, because a tunnel on the defendant’s road, between Newark and Shawnee, had been set on fire by the associates of.the-plaintiff, with his knowledge, and-was so fiercely burning as to be impassable, and so continued until the 4th day of May, 1885; on which day, about nine o’clock,in the morning, the goods arrived at their destination, and about an hour afterward, the plaintiff examined the goods, but neglected to remove them; and in themight of that day, without fault or neglect on the part of the defendant, its warehouse, where the goods were stored was burglariously broken and. entered, and the property stolen and carried away by the plaintiff and his associates. For a further defense, the answer alleges, that before and .at the time the defendant received the property for transportation, a state of war and insurrection existed at and about Shawnee, where murder and other crimes were being committed; that the fire-arms, and ammunition shipped to the plaintiff, were purchased and consigned to him to be used in aid of the insurrection, and to further the criminal designs of those engaged in it, and for other criminal purposes; and that under the advice- and direction of the then Governor of the state, the defendant shipped the goods out of this state, where they remained until the 4th day of May, 1885, when they were transported to Shawnee, and there stolen, as alleged in the previous-defense.

      All the allegations of new matter in the answer, were controverted by the reply, except that the defendant shipped the goods out of the state, instead of carrying them as it ought, to their place of destination.
    A trial of the cause to a jury, resulted in a verdict for the plaintiff, upon which judgment was rendered. Error was prosecuted to the circuit court, where part of the damages recovered were remitted by the plaintiff, and the judgment was affirmed as to the balance. Here, the reversal of the judgments below is sought, on the grounds, that there was error in the charge of the court to the jury, and in the refusal to give certain instructions requested by the defendant. These grounds, so far as they are deemed important, will be noticed in the opinion.

      C. H. Kibler, for plaintiff in error,
    A demand must be made where plaintiff has put the property in the hands of the defendant or he is otherwise lawfully in possession. Cobbey on Replevin, section 447.
    There can be no conversion where there is no demand and refusal. If demand is made, and the refusal is not on the ground that the party intends to make use of the property, or other declaration equivalent to an assertion of title or ownership, such refusal is not evidence of an actual conversion. Kennet v, Johnson, 2 J. J. Marsh, 84; 1 Bouvier 361. The demand must be made before suit is brought. Am. & Eng. Ency. of Raw, 115.
    The plaintiff was not entitled to a delivery of the goods without paying or tendering the freight. The defendant was entitled to retain the goods, and the court should have so charged. Goodman v. Stewart, Wright, 216.
    The court erred in refusing to charge the jury as requested in the 5th request. 44 Me. 197; 36 N. H. 311.
    There must be an intent to use or dispose of the goods. 1 Bouvier, 361.
    Here, the most that can be said is that there was a failure to deliver at Shawnee, But the duty of the carrier in the matter of delivery is not like his duty to keep safely. The latter is an extraordinary liability. The carrier may excuse delay in delivering the goods by proof of misfortune or accident, though not inevitable or produced by the act of God. Kinnick v. R. R. Co. (Iowa,) 27 Am. & Eng. R. R. Cases, 15; Greismer v. R. R. Co., 26 Am. & Eng. R. R. Cases, 278; Railway v. Heath, 42 A. & K., 477; Pittsburg R. R. v, Hollowell, 65 Ind.,-188; R. R. Co. v. Hazen, 84111., 36; Wertheimer v. R. R. Co., 17 Blatch, C. C,, 420. The case of Blackstock v. R. R. Co., 20 N. Y„ 48, has been overruled in New York by Greismer v. R. R. Co., ante.
    The court also erred in refusing to give request No, 3. The ground upon which the request rests is that there was no absolute, but only a technical conversion — a failure to deliver at the time upon a just, reasonable and humane ground, and upon the advice of the Governor of the State of Ohio — and that the property in or right to the goods did not pass from the plaintiff to the defendant, but was still in the plaintiff, subject to the right to require the defendant to pay damages for the delay in delivery.
    If the property came lawfully into defendant’s possession, and the conversion was only technical, and the property is in the same condition, the plaintiff will be compelled to take it back in mitigation of damages, Earle v. Holdeness, 4 Brig., 462; - v. Welch, 47 Wis., 39; Buckland v. Beals, 38 Ver., 653; R. R. Co. v. Bank, 32 Ver., 639; Tracy v, Good, 1 Clark (Pa. E. Journal,) 472; Cook v. Loomis, 26 Conn., 483.
    The following cases have been referred to as establishing a different doctrine, but they do not: Brewster v, Silliman, 38 N. Y., 423; Hamner v. Wilsey, 17 Ward., 91; Higgins y. Whitney, 24 Ward., 379.
    In cases of delay in the transportation of goods, the proper measure of damages is the difference between the market value .of the goods when delivered and that at the time when they should have been delivered. 2 Am. & Eng. Ency. of Raw, page 850; R. R. Co. v. Mudford, 44 Ark., 439.
    /. B. Jones and J. A. Flory, for defendant in error.

      From the facts detailed in the evidence and proven, it is clear that the Railroad Co., without legal right, assumed and exercised rights over O’Donnell’s property; and without warrant it excluded him from his rights, and thereby appropriated his goods to its own use, and that is conversion in law. The property of O’Donnell being in the lawful custody of the R. R. Co, to transport from Newark to Shawnee by its line of railroad, its right then over the property was limited by its duty to deliver the same'to the consignee at Shawnee; .any intermeddling with it, beyond that which was necessary to deliver it according to its contract, was conversion. 1 Metcalf Mass., Rep., 555; Dawson on Carriers, pages -7 to 14; Edwards on Bailment, pages 454, 468, 566 and 567; Phillips v. Brigham, 71 Am. Dec. page 227 and note; Bennett v. Byram, 75 Am. Dec., 91, note; Woodman v. Hubbard, 57 Am. Dec., 311;. Kime v. Dale, 14 Brad (Ills.,) 308; 44 Maine, 197; 36 N. H., 311; 1-Bouvier, 360.
    If the doctrine above stated be correct, and there can be no doubt about it, then everything said in plaintiff’s brief touching a demand before suit is brought, can have no force ‘or effect. In such circumstances as these established by the evidence no demand is necessary to be either averred or proven. That being true, requests Nos. 1 and 2 are disposed of.
    If it were delay in delivering the goods, occasioned by misfortune or accident, it is probable that the rule stated in plaintiff’s brief would be correct. But the rule as stated does not apply for the reason that the offense in the case at bar, alleged and proven, was conversion.
    The rule of damage is settled that if the goods are not delivered according to contract the measure of damages, is the value of the goods at the place of destination, Sedg-wick on Measure of Damages, page 395, 397; Spring v. Haskell, 4 Allen 112; Chicago &c. R. R. Co. v. Warren, 16 Ill., 502; Graham. & Co. v. Davis & Co., 4 Ohio St., 379; 2 Greenleaf on Ev. Sec. 213; Davidson v. Graham et al., 2 Ohio St., 131. Edward on Bailments, page 570 and 572; Hutchinson on Carriers, Sec. 769; McGregor v. Kilgore, 6 Ohio, 359; 46 N. Y., 462; Shaw v. A. C. R, R. Co., 57 Am. Dec,, 768 and note; Cooper v. Young, 68 Am. Dec., 502 and note.
   Wiixiams, J.

A question of pleading presented by tbe record, will be first noticed. That question arises upon the refusal of the court to give in charge to the jury, an instruction, requested by the defendant below, to the effect that the action could not be maintained as one for conversion^. because the petition failed to áver a demand for the property. It is contended, that where the property of one person, has lawfully come to the possession of another, a refusal by the latter to deliver it to the owner on his demand, is necessary to constitute a conversion of it, and therefore, the petition, in an action for its conversion, must contain an allegation of such demand and refusal.

The allegation is not essential. A refusal to deliver the property on demand of the owner, may show such an assumption of ownership or control of it, as to afford satisfactory evidence of a conversion, but it is only evidence. The ultimate fact to be pleaded is the conversion; and in actions of that nature, a petition which, with proper allegations of the plaintiff’s ownership of the property, and of its value, avers that the defendant converted it to his own use, states a cause of action. ii¡

It is claimed the trial court erred in its refusal to instruct the jury that, if the goods described in the petition were tendered to the plaintiff, on the 4th day of May, 1885, and he refused to take them into his possession, and they were afterward, without the fault or negligence of the defendant, stolen and lost, the plaintiff could not recover.

The evidence tended to show, that the goods arrived at the defendant’s depot in Shawnee on the morning of the 4th of May, 1885, and the same'day the plaintiff saw them there, but did not take them away. The next day, notice of the arrival of the goods was received by the plaintiff, through the mail, and the night following they were stolen from the depot where they had been placed by the defendant; none of them were recovered, and the perpetrators of the crime are unknown.

The claim of the plaintiff in error is, that upon the failure of the plaintiff below to take possession of the goods, after notice of their arrival, the liability of the defendant as a carrier ceased, and its obligation became that of a bailee only, which was to use ordinary care for the preservation of the property; and, as the property was lost without the fault or negligence of the defendant, it could not be held responsible for the loss. As a general rule, when the carrier has done all that the law requires toward effecting a delivery of the property, but is unable to accomplish it, and the property is so necessarily continued in his possession, his obligation becomes that of a' depository only. He is no longer an insurer of the property, and may show that it was lost without his fault or negligence, and thereby exonerate himself from liability. But what is required with respect to the delivery, is not the same as to all classes of carriers. The undertaking of express companies is to maké delivery of the property entrusted to them for carriage, to the consignee personally, with all reasonable dispatch; and to this obligation they are held by the law with great strictness. An exception has been made to this rule, in some cases, where the business of the company is so small at the place of delivery, as not to justify the employment of the neq^ssary means of making immediate personal delivery. In those cases, it is held, that the conduct of the company must be in conformity with a usage in reference to which it is presumed the parties contracted. Baldwin v. Express Co., 23 Ill. 197; Express Co. v. Scheir 55 Ill. 140. And it is incumbent on the company to establish the facts which give rise to the exception to the general rule governing its liability.

But, without deciding whether the facts stated in the instruction requested, would relieve the defendant, if there were no other issue to be passed upon, the instruction is open to the objection, that if given, it would have required the jury, simply upon the finding of those facts, to return a verdict for the defendant, notwithstanding others, which the evidence established to the satisfaction of the jury, would render the defendant liable, and entitle the plaintiff to the verdict. The claim of the plaintiff was, that the defendant had converted his goods to its own use, before they were taken to Shawnee. His action for their conversion had been brought some months before they reached that place, and was pending when they arrived. He gave evidence tending to prove, that the defendant received the goods at Newark, for transportation by express, on the 2nd day of January, 1885, and the goods not having arrived at their destination, the plaintiff went to Newark to hunt them up, where he made inquiry about them, of the agent of the defendant at that place, who informed him he did not know where they were. The evidence further tended to show, that defendant’s agent at Newark, on the 5th day of January 1885, and before his interview with the plaintiff, had, under the direction of the defendant’s officers, shipped the goods to Baltimore, Maryland, consigned to the care of an officer of the defendant company, who received them, and held them there until the following May; and, that they were so shipped to, and detained at Baltimore, for the purpose of preventing their coming to the possession of the plaintiff, and depriving him of their control and disposition. The defendant claimed it was'justified in the course it pursued, upon grounds which will be noticed hereafter. Whether the justification was made out, was a question of fact for the jury, under the instructions of the court which will also be hereafter noticed. Unless the justification was established, there appears to have been evidence, as shown by the record, from which the jury might find, as they did, that there was a conversion of the goods by the defendant; for, in order to constitute a conversion, it was not necessary that there should have been an actual appropriation of the property by the defendant to its own use and benefit; it might arise from the exercise of a dominion over it in exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights. If one take the property of another, for a temporary purpose only, in disregard of the owner’s right, it is a conversion. Either a wrongful taking, an assumption of ownership, an illegal use or misuse, or a wrongful detention of chattels, will constitute a conversion. “Whoever,” said Chief Justice HolT, in Baldwin v. Cole, 6 Mod. 212, “takes upon himself to detain another man’s goods from him without cause, takes upon himself the right of disposing of them,” and is guilty of conversion. If a person hire a horse to go to a particular place, or a specified distance, and he go t.o another place or greater distance, that is a conversion of the horse. Fish v. Ferris, 5 Duer, 49; Lucas v. Trumbull, 15 Gray, 306; Wheelock, v. Wheelwright, 5 Mass. 104. Upon the same principle, a common carrier, who, having received goods to be carried to a designated place, transports them to another place, for the purpose of preventing their coming to the possession of the consignee, and depriving him of their use and disposition, is liable for the conversion of the goods. After the conversion has taken place, the owner is under no obligation to receive the property. Brewster v. Silliman, 38 N, Y. 423. So that, if there was a conversion of the plaintiff’s goods by the defendant, prior to the 5th of May, when he was notified-they had reached Shawnee, his right of action for their value was complete; and any loss of the goods occuring after the conversion, must fall upon thé defendant. No tender of the goods after the conversion, nor refusal to accept them, could cast the loss upon the plaintiff, because he was not then obliged to receive them. It would have been error, therefore, in view of the evidence tending to establish the conversion, to give the instruction requested, which would have required the jury to find for the defendant, if the goods were stolen without its negligence, notwithstanding they should also find such prior conversion of them by the defendant.

The principal contention of the plaintiff in error is, that there was no conversion, because it was justified, upon the grounds stated in its answer, in with-holding the property from the plaintiff below, and removing it from the state.

The ground chiefly relied on is, that when the goods were received for transportation, a state of lawlessness,, amounting to insurrection, existed at the place to which they were consigned; and that the goods, which consisted entirely of fire-arms and ammunition, were purchased and consigned to the plaintiff, to be used in aid of the insurrection; knowledge of which, having come to the defendant’s officers, they deemed it improper to deliver the goods to the plaintiff, and, after consulting the governor of the state, and under his advice, as it is claimed, they caused them to be taken to Baltimore, and there detained until the May following, when they were re-shipped to Newark, and thence to Shawnee. All these allegations of the answer, except that the property was removed out of the state, and there detained, were denied by the reply, and the issues of fact thus raised were submitted to the determination of the jury. There was evidence tending to show that at Shawnee and vicinity, and in the Hocking valley, distant some six miles or more from Shawnee, there were numerous coal mines, operated by different owners, where a large number of miners were employed. In the fall of 1884, the operatives were on a “strike,” owing to a disagreement about their wages, Operations at some of the mines were suspended, while to continue some of those in the Hocking valley, miners were brought in from other localities to take the place of those who had refused longer to work. Apprehensions were entertained by those operators who had employed miners from other places, that the “strikers,” as they are called by the witnesses, would destroy or injure their property, and forcibly prevent their recent employes from working in the mines. These operators employed persons to keep watch over their property, and prevent interference with their new employes. ■ Fires broke out at some of the mines, and at a tunnel on defendant’s road near Shawmee, which the strikers were suspected by the defendant and others, of having caused; and considerable alarm existed in that region. The testimony is conflicting as to the extent of the trouble and its duration, but it continued until after January, 1885, and gradually passed away without any 'Outbreak of violence, or obstruction of the lawful authorities.

The plaintiff gave evidence tending to prove that the goods consigned to him were purchased for lawful purposes, and were intended for no other use; that he kept a store in Shawnee, where he expected to make lawful sales of these, and other goods of the kind, for which there was a general demand.

The court charged the jury, in substance, that if they found the facts to be as alleged by the defendant, it was justified in with-holding the goods from the plaintiff; otherwise, it was not. No exception was taken to the charge, nor was any request made for further instructions on the subject. There is an • exception, purporting to be to that part of the charge, “stating to the jury that no testimony as to the advice of Governor Hoadly should be considered by them.” But we have been unable to discover that statement in the charge. The verdict was for the plaintiff upon all the issues. It is not the duty of this court, as it was that of the circuit court, to weigh the evidence, and determine whether it was sufficient to sustain the verdict. We cannot say there was no evidence, tending to prove these issues for the plaintiff; nor is the lack of such evidence assigned as error, here, or advanced in argument. We see nothing in the charge on this branch of the case, of which the plaintiff in error can justly complain. It is not claimed the liability of the defendant was limited by special contract. Its obligation was, therefore, that imposed by the rules of the common law, which made it an insurer of the goods against all losses, except those arising from the act of God, or the public enemies, or from the conduct of the shipper, or the inherent nature of the goods, or, as is held in some cases, from the act or mandate of public authority. With respect to the last exception stated above, the rule seems to be now established, that a common carrier is not liable, if the goods be taken from his possession by legal process against the owner, or if, without his fault, they become obnoxious to the requirements of the police power of the state, and are injured or destroyed by its authority; as where they are infected with contagious disease, or are intoxicating liquors intended for use or sale in violation of tbe laws of the state, which require their seizure and destruction. Wells v. Steamship Co., 4 Cliff, 228; Blivin v. Railroad Co., 36 N. Y. 407. But, in order to protect the carrier in such cases, it is necessary that the seizure be made without the procurement or connivance of the carrier; that the proceeding or process under which it wao made appear to be valid, and that the carrier give prompt notice to the owner. Gibbons v. Farwell, 63 Mich. 344; Kiff v. Railway Co., 117 Mass. 591; Blivin v. Railroad Co., 36 N. Y. 403; Railway Co. v. Yohe, 51 Ind, 181. “The principle of the exception,” it is said, in Wells v. Steamship Co., supra, “is, that the carrier is not obliged to violate the law of the jurisdiction to comply with its contract.” In Atkinson v. Richie, 10 East. 534, it is held, that the contract of a common carrier is always subject to the implied condition that he may lawfully comply with its terms; and if its performance subsequently becomes unlawful without his fault, he is not required to violate the law of the jurisdiction to complete his undertaking. We see no reason why the exception might not be extended to embrace cases where fire arms, intended to be used in promoting riots and public disturbances, are seized by the public authorities to prevent such use of them. But the question is not fairly before us. The jury must have found that the arms and ammunition consigned to the plaintiff, were purchased and intended for lawful purposes, unless, indeed, the sale of such property in this state, is, of itself, unlawful. We have been referred to no statute making it so, and know of none, except the one prohibiting the sale of property of that description to minors under the age of fourteen years. The prohibition might wisely be much extended; but that is a matter of legislative policy. The record leaves no doubt, that in causing the property to be removed from the state, and withheld from the plaintiff, the officers of the defendant were prompted by commendable motives, and acted under a sincere belief they were subserving the public good. But the motive by which a party was controlled in the conversion of property, is of no avail as a defense, though it may be shown to prevent the recovery of exemplary damages. Gibbons v. Farwell, supra; Harker v. Dement, 9 Gill. (Md.) 7.

The only other ground which the defendant plead as a justification of its failure to carry the goods to their destination in due course of transit, was, that a tunnel on its road, between the place of shipment and that to which the goods were consigned, had been set on fire by the plaintiff’s associates, with his knowledge, which rendered it impossible for the defendant to preform its contract. This was put in issue by the reply. The evidence shows that the tunnel, called the Bristol tunnel, was discovered to be on fire on the morning of the 1st of January, 1885, but the origin of the fire was not shown; nor did the evidence implicate the plaintiff with it, or show that he had any knowledge of how it was caused. It further appeared, that within a few days afterwards, arrangements were made by the defendant, by which the express matter carried either way on the road could be, and was transferred around the tunnel, and the plaintiff’s goods could have been so transferred and delivered to him as soon as January 7, 1885.

The instructions of the court upon this issue, were to the effect that, if thé tunnel was rendered impassable for cars, the defendant was excused from making delivery until the obstruction ceased, or other means of effecting the delivery could reasonably be procured; and then, further delay in making the delivery, on account of the tunnel, was not excused, unless the obstruction was caused in whole or in part by the plaintiff. No exception was taken to this part of thecharge, and it appears entirely unobjectionable. The defendant was bound to provide sufficient and suitable means for the carriage of the goods, and make delivery of them with all convenient dispatch. And while accidents and obstructions will excuse delay, they do not put an end to the contract. As soon as the impediment to the transportation of the property is removed, or can reasonably be overcome, the carrier must complete the contract without further delay,

It is further claimed that the court erred in its refusal to. give in charge, an instruction requested oh the measure of damages, which was, in effect, that if the plaintiff had an opportunity of receiving the goods on the 4th day of May, 1885, and refused to take them, his only measure of damages was the difference between their value on that day, and on the 5th of January preceding.

This instruction might have been proper, if there were no question of the conversion of the property by the defendant involved in the case. If the failure to deliver the goods arose, from delay merely, the measure of damages is. ordinarily, that stated in the request, though reasonable expenses occasioned by the delay may also be allowed in such cases. But the measure of damages was not made to depend, by the instruction requested, upon whether the failure to deliver the property was the result of delay merely; and to have given it, would have left the jury no alternative but to fix the damages according to that measure, though they should find in favor of the plaintiff on the question of conversion. If there was a conversion of the goods by the defendant, a different rule of damages applies, which is the value of the property at the time of its conversion.

Finally, it is contended the court committed an error in- refusing to instruct the jury that, to enable the plaintiff to recover any damages, it must appear that he tendered the defendant the amount of its legal charges and advances.

The action was not one for the recovery of the property, but for its unlawful conversion. The rule contended for may be a sound one when applied to actions of the former class, but it has no application to those of the latter class.

There being no substantial error in the record, the

Judgment is affirmed.