author: Summers, J.

text:
    The Baltimore & Ohio Railroad Co. v. Jolly Bros. & Co.

      Contract — With railroad company for improvements on line of road — Stipulation as to alterations — Authority of railroad-engineer to bind road in contract changes — Question of misrepresentations by railroad — Effect of performance by contractors with Knowledge of alleged fraud by railroad — Waiving of rights — Law of contracts.

    1. The provisions in a contract that:
    “This contract shall in no wise be affected by verbal agreements, or inferences from conversations previous to or subsequent to its execution,
    “All alterations, amendments, or modifications of this con- ^ tract in any particular whatever must be in writing,
    “No claims shall be allowed for any extra work unless the same-shall have been done in pursuance of a written order from the engineer,
    “The chief engineer may make such allowances and estimates-as he deems just for any loss or damage to the contractor resulting from delays of any kind, whether caused by failure to procure right of way, borrow pits, or material required to-be procured by the company, or to furnish plans, or from. alterations in plans, or from any other cause whatever;” do not authorize such engineer to waive written orders for extra work or to make allowances for loss or damage resulting from the doing of work for which the price is specifically fixed hy the contract, or to hind his principal hy a parol modification.

      ■2. A party to an executory contract procured hy false representations who, after knowledge that the representations are false and fraudulent, performs or, without necessity, completes performance of the contract and accepts payment according to its terms thereby waives the fraud.
    (No. 8358
    Decided December 6, 1904.)
    Error to the Circuit Court of Richland county.
    In the year 1899, the railroad company planned extensive improvements upon a line of its road in certain parts of the state of Ohio, comprising a change of grade, a large amount of excavating and the constructing a new roadbed. The amount of excavating was estimated at 400,000 cubic yards, 238,000 cubic yards of which was a little north of the village of Fredericktown in what is known as the Frederick-town cut. It invited proposals for doing the work, and on the tenth of April entered into a contract therefor with Jolly Bros. The contract was on the printed form of the company and is quite lengthy, covering thirty-eight pages of the printed record. So much of it as is necessary to an understanding of the questions determined is as follows:
    “5. Excavation will be unclassified and so bid and paid for, unless otherwise specified, in which ease classification will be made in accordance with the following, viz.:
    “Earth will include clay, sand, loam, gravel, all hardpan that can be ploughed, and all earthy matter, • or earth containing loose stones, or boulders intermixed which do not exceed in size three cubic feet.

      “Nó haul will he allowed, as contractors are expected to make such personal examination of the work to he performed as will enable them to make such bids for excavation and other work as will cover the cost of hauling the materials and the disposition of the same.
    “2. The quantities of graduation and masonry, piling, etc., exhibited to the contractor at the letting are merely approximate; they furnish only general information and will in no way govern or affect the final estimate of the work, which will be made out upon its completion from exact measurement and established facts, not now in the possession of anyone, nor possible to be obtained at the time of drawing up these specifications. •
    “9. Whenever in this contract the words ‘chief engineer’ are used, it will be understood to mean the engineer of construction; and whenever the word ‘engineer’ is used, it is to be understood as applying to the local or resident engineer having charge of the particular work for the time being.
    “13. All alterations, amendments or modifications of this contract in any particular whatever must he in writing and called a supplement, which shall have proper reference to the contract, by date and description of work, and be duly signed, in which supplement shall be fully described the particular work to be affected by such alterations, amendment or modification.
    “15. No claims shall be allowed for any extra work unless the same shall have been done in pursuance of a written order from the engineer, and copies of such orders must be attached to the bills of the contractors for extra work, and no bill will he entertained unless accompanied by such copy.

      “17. The classification of all excavations, ma- , sonry, etc., shall he made by the engineer, or chief engineer, and their decision in regard to the same shall be final and binding, and from it no appeal shall be taken.
    “In lieu of waiving the usual ten (10) per cent, on monthly estimates, the contractors agree to furnish a bond in the sum of thirty thousand dollars ($30,-000) of a guarantee company acceptable to the said company and receivers. Said bond shall be furnished within thirty (30) days from date of this contract and before any money is paid on account of this contract.
    “Free transportation will also be furnished to-said first parties from and to Pittsburgh, also on trans-Ohio division, for such materials as are termed grading outfit. The rate of three (3) mills.per ton per mile will be charged for all other materials and supplies used in the construction of said work.
    “The above payments shall be made in the following manner — that is to say, during the progress, of the work and until it is completed, there shall be a monthly estimate made, by the aforesaid engineer, of the quantity, character and value of the work done during the month, or since the last monthly estimate, to be made by actual measurement or simple estimate, or both combined, as by said engineer may be deemed expedient,---of which value shall be paid to said parties of the first part, at such places as the chief engineer may appoint; but it is expressly agreed that the amounts of the said monthly estimates shall in no wise be deemed payable (except as determined by the chief' engineer), nor shall the same be in any manner assignable or transferable, either by the act of “the parties of the first part, or by operation of law as a subsisting debt or liability of the parties of the second part, until the final estimate shall have been made and become payable as hereinafter provided ; and when the said work is completed and so ■accepted by the said chief engineer, there shall be a final estimate made, by the engineer, of the quantity, •character and value of said work, agreeably to the terms of this agreement, when the balance appearing to be due to the said parties of the first part shall be paid to them upon their giving a release under seal to the said company from all claims or demands whatsoever growing in any manner ont of this agreement. And it is further agreed between the parties hereto, that said monthly and final estimates .shall not be payable, and said parties of the first part shall not be entitled to receive any portion of the said estimates, until said parties of the first part shall have paid in full all persons and laborers and ■subcontractors in the employ of said parties in the said work, for all work and labor done up to and including the date for which the preceding estimate ■or estimates may have been made, and shall give evidence of such payment by filing with the chief engineer or engineer in charge, the pay rolls for said laborers or persons, receipted in full by the same. And it is further agreed that the chief engineer shall have the right, at any time, if he sees fit, of paying ■said laborers and persons the amounts due them by ■said parties of the first part, and deducting the sums ■so paid from the amounts payable under said estimate. And it is expressly understood that the monthly and final estimates of said engineer, as to the quantity, character and value of the work, shall "be conclusive between the parties to this contract, the former for the time being and the latter for all time, without further recourse or appeal (the monthly estimates of the engineer being, however, subject to correction by him in any subsequent monthly, or in his final estimate, for the reason that the monthly or current estimates being merely made out as basis for payment on account, will necessarily be only approximately correct, pains being taken, however, to make them as accurate as possible); unless the chief engineer may deem it proper at any time to revise and alter the monthly or final estimate of said engineer, in which event the estimate of said chief engineer shall be substituted to all intents and purposes, in place of the estimate of said engineer, and shall be final and conclusive on the parties, without further recourse or appeal, it being, however, wholly optional with the said chief engineer to exercise such power of revision or not.
    “And it is mutually agreed and distinctly understood, that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement relative to or touching the same; and each and every one of said parties do hereby waive any right of action, suit or suits, or other remedy in law or otherwise, by virtue of the covenants and provisions herein, so that the decision of said chief engineer, shall in the nature of an award, be final and conclusive on the rights and claims of said parties.
    “Before signing the foregoing contract, the undersigned contractors, have carefully read the same, and understand all the provisions thereof.
    “Jolly Bros. & Co.
    “By J. K. Jolly.”

      Jolly Bros, commenced the work sometime m May, 1899, and continued at it until February, 1900, when they quit, and commenced an action against the railroad company for damages.
    The first cause of action, as set out in the amended petition, omitting the averments that the plaintiffs, are partners and the defendant a corporation, is as follows:
    “The said defendant on and prior to the tenth day of April, 1899, proposed changing the grades of the said railroad track from station 550 to station 700 near the village of Utica, and from station 900 to station 1140 near said station of Hunt, and from station 1340 to station 1410 near the city of Mt. Vernon, and also from station 1690 to station 1900 near said village of Fredericktown, on what was-known and called the Lake Erie division of the said railroad company. In pursuance of said object the-said defendant sent an invitation to the said plaintiffs to bid on the work of said construction, and in accordance with the said request of said defendant the said plaintiffs came to Zanesville, Ohio, and met the officials and agents representing the said railroad company, and with the said agents and officials, they passed over and casually examined the said proposed improvement desired to be made by the said defendant. That the said work consisted in changing the grade of the said railroad from and between the stations hereinbefore stated, in constructing a roadbed and in making certain excavations which necessitated a large amount of work and labor.
    ‘‘ One David Lee was the engineer of maintenance of way on said Lake Erie division, and one A. M. Kinsman was the engineer of construction on said Lake Erie division. Said Lee and Kinsman were the duly authorized agents of the said defendant and represented said defendant in said proposed improvement, and in making representations on behalf of said company with reference to the character of said proposed improvement, and in entering into a contract for the same with said plaintiffs. Said Lee and Kinsman were each well acquainted with the character of the material to be excavated and removed, and from which the roadbed was to be constructed ; at the time plaintiffs made a casual examination of the said proposed improvement the ground was frozen and covered with snow, and along much of the said improvement the excavation to be made was from thirty to forty feet deep, and plaintiffs were compelled to and did rely upon the representations of the said agents of the said defendant as to the kind and character of the material to be excavated and removed. Plaintiffs inquired of said agents of said defendant as to the kind and character of said material so to be excavated and removed and said agents informed plaintiffs that where said excavation was the deepest north of the village of Fredericktown on said Lake Erie division that the material was dry bank gravel, easy to be excavated and removed; that near Hunt station on said Lake Erie division, which was about eight miles south of Mt. Vernon, there was some hardpan, but almost all of said material to be removed south of the city of Mt. Vernon was gravel, sand or loam. Said agents of said defendant for the purpose of inducing plaintiffs to enter into a written contract with said defendant, falsely and fraudulently represented to plaintiffs that not only was the material to be excavated and removed north of said village of Fredericktown dry bank gravel, but that there was no water to interfere with said proposed improvement or the removal of said material and the construction of said roadbed. They further represented to plaintiffs that the defendant had made a careful examination of said material so to be excavated and removed, north of said village of Frederick-town ; that they had caused test holes to be dug along the line of said proposed improvement to ascertain the kind and character of said material, and that it was dry bank gravel. Plaintiffs further aver the fact to be that it was true that said defendant had caused test holes to be dug along the line of said proposed improvement to ascertain the kind and character of the material to be excavated and removed, and the defendant did know the kind and character of said material, but defendant by and through its said agents, falsely and fraudulently represented to plaintiffs that said material to be removed was dry bank gravel, and that there was no water to interfere with the excavation and removal of said material, when in truth and fact, said material to be removed was blue mud, quicksand and wet excavation; and said defendant through its said agents so falsely and fraudulently represented the facts to be, as herein-before set forth, that there was no water to interfere with said excavation and removal of said material, and that the same was dry bank gravel, to induce plaintiffs to enter into a written contract with defendant at a price for said work greatly below the value of the same, and plaintiffs did rely upon said false representations, and did enter into a written contract with said defendant on the tenth day of April, 1899, relying wholly and entirely upon the said false and fraudulent representations of the said agents of the defendant, and agreed to excavate and remove said material at the price of seventeen and one-half cents per cubic yard; that said sum of seventeen and one-half cents per cubic yard was a fair and reasonable price for the excavation and removal of dry bank gravel or sand and loam, but was not a fair and reasonable price for blue mud, quicksand and wet excavation.
    “Plaintiffs further say that relying upon said false and fraudulent representations of said agents of said defendant, that in the month of May, 1899, at great expense and with a large force of men and teams, and. with three steam shovels, six small locomotives, 250 cars, and the necessary picks, shovels and tools, they commenced work on said proposed improvement and proceeded diligently to complete the same. That on or about the twentieth day of May, 1899, in the prosecution of said work north of the village of Fredericktown they ascertained for the first time that said representations so made by said Lee and Kinsman with reference to the kind and character of the said material so to be removed and the condition and quantity of the water which permeated a large part of the said material, was false. Instead of said material so to be excavated and removed north of said village of Fredericktown being dry bank gravel the greater part of it was blue mud, quicksand and wet excavation; and in attempting to excavate and remove the same it adhered to the dippers of the steam shovels and was difficult to load into the cars and difficult to dump from the cars for the reason that it adhered to said dippers and the said cars, and often intermingled with said blue mud and was large chunks of a very hard substance that could not be removed in the dippers on the steam shovels, and much of the time, the men in performing sáid work were compelled to and did work in water and mnd above their knees; and instead of the usual number of four men working in advance of the steam shovels, to each shovel, plaintiffs were required to have and did have eight men so working in mud, water and quicksand.
    “As soon as plaintiffs ascertained that the said representations so made by the said agents of said defendant with reference to the kind and character of said material to be excavated and removed, were false, they at once notified A. M. Kinsman, who was the said agent of said defendant, and who was duly authorized by the said defendant to enter into the said written contract with plaintiffs and who was duly authorized to make and enter into contracts with said plaintiffs for the performance of said work, and who had entered into said written contract on behalf of said defendant with said plaintiffs, plaintiffs notified said Kinsman that the kind and character of said material so to be removed north of said village of Fredericktown was not dry bank gravel as represented by him and said David Lee, but was blue mud, quicksand and wet excavation; and said A. M. Kinsman on or about the first day of June, 1899, with plaintiffs went over said work that was being performed by plaintiffs north of said village of Fredericktown, and plaintiffs then notified said Kinsman that they had been greatly damaged by said false representations and that they would abandon said work and contract and claim damages for the fraud perpetrated upon them. Said Kinsman then and there informed plaintiffs that the material that they were removing north of said village of Fredericktown was not as represented by him and said David Lee to plaintiffs, and if they ymuld continue the work that they should he paid for the excavation and removal of the said material what the same was reasonably worth; and he further stated to plaintiffs on or about the first day of June, 1899, that if they would continue the performance of said work, and excavate and remove said material that he would see that they were allowed what the same was reasonably worth together with other material removed and excavated by them, and that they should be paid therefor between the tenth and fifteenth of each month for the amount of the material excavated and removed on the preceding month. Plaintiffs further say they relied on this new promise so made by the said A. M. Kinsman; and he was duly authorized to make said promise, he was the agent of said company that had entered into the written contract with plaintiffs on behalf of said defendant, and was duly authorized to make allowances to plaintiffs for any and all work performed by them what the same was fairly and reasonably worth. Plaintiffs relying upon said promise continued in the performance of said work thereafter, but were not allowed by the said defendant or the said A. M. Kinsman as its agent what the said work was reasonably worth, nor were they allowed any extra amount for the removal of said blue mud, quicksand and wet excavation. Plaintiffs repeatedly called upon said A. M. Kinsman and requested that they be paid for the said work, so performed and in the month of October, 1899, said Kinsman promised plaintiffs that they should be allowed for the same in the month of November, 1899, but defendant did not allow plaintiffs for said work. Plaintiffs continued in the prosecution of said work through the month of December, 1899; said Kinsman for said month of December, 1899, made an allowance to apply on work done in month of December, 1899, the snm of $1,954.05, which he promised would be paid on or before the fifteenth day of January, 1900, but no part of the same was paid. Plaintiffs continued the prosecution of said work through the month of January, 1900, and the said Kinsman again informed plaintiffs that he had made another estimate to apply on their said work of $1,273.75 for the said work done in the month of January, 1900, which would be paid on or before the fifteenth day of February, 1900, but no part of the same was paid. Plaintiffs frequently demanded payment not only of said two several estimates for the month of December, 1899, and the month of January, 1900, amounting to $3,227.80, but also for the whole amount due them for said work so performed for said defendant under said verbal contract so made with said A. M. Kinsman, but said defendant refused to pay the same or any part of the same, and have ever since refused to pay the same or any part of the same. Plaintiffs notified defendant that they would not complete said work and would remove their grading outfit from the same unless defendant paid them for the work they had already performed, but defendant refused to pay plaintiffs the amount due them or any part of it, and thereupon plaintiffs quit said work and removed their grading outfit from the same.
    “Plaintiffs further say that they excavated and removed in the work of said improvement and in the construction of said roadbed 340,000 cubic yards of material, of which 26,300 cubic yards was called hardpan by the said A. M. Kinsman and an allowanee of twenty-two cents per cubic yard was made for the same by the said A. M. Kinsman, or $5,786.00' for the excavation and removal of the said 26,300' cubic yards of hardpan; 4,400 cubic yards of loose rock or shale which was fairly and reasonably worth 28 cents per cubic yard or $1,232.00 for the excavation and removal of the said 4,400 cubic yards of loose rock; 174,030 cubic yards of earth, gravel, sand and loam which, was fairly and reasonably worth seventeen and one-half cents per cubic yard or $30.-455.25 for the excavation and- removal of said 174,-030 cubic yards of earth, gravel and loam; 4,370 cubic yards of solid rock which was worth 50 cents per cubic yard or $2,185.00 for the excavation and removal of the said 4,370 cubic yards of solid rock. Plaintiffs further say that under the verbal contract so made by said A. M. Kinsman on or about the first day of June, 1899, they excavated and removed 130,-000 cubic yards of blue mud, quicksand and wet excavation, which was fairly and reasonably worth forty cents per cubic yard for the removal of said blue mud, quicksand and wet excavation, and the removal of said 130,000 cubic yards was worth the sum of $52,000.00 of which $10,278.95 was paid on account of said excavation and removal of blue mud, quicksand and wet excavation, leaving remaining due and unpaid for said 130,000 cubic yards of blue mud, quicksand and wet excavation the sum of $41,-721.05, and the total amount of said material of all kinds so removed by them in the construction of said work was fairly and reasonably worth $91,658.25, which was all due and payable on or before the fifteenth day of February, 1900. Plaintiffs further say that they received from time to time from said defendant to apply on said work so performed by them the sum of $49,937.20, and that there is a balance due them from said defendant for said work the sum of $41,721.05, in addition to the December, 1899, estimate of $1,954.05 and the estimate of January, 1900, of $1,273.75, with interest thereon from February 15, 1900, for which they pray judgment. ’ ’
    The second cause of action was for $2,014.20 for extra work and material.
    The third cause of action was for $400.00 retained for freight on the grading outfit, and.
    The fourth cause of action was for damages in the sum of $2,200 for not permitting plaintiffs to perform a contract for excavating made with the defendant on May 10, 1899, and the whole amount prayed for was $49,563.12.
    The railroad company answered as follows:
    “The defendant also admits that the said David Lee and the said A. M. Kinsman held offices on said Lake Erie division as stated in said amended petition, but it denied that the said Lee and Kinsman had any authority to make any representations to the said plaintiffs with reference to the work upon which they were about to bid, and it denies that the said Lee 'and Kinsman made any such representations.
    And the defendant avers that no agent or officer of the said defendant had any authority to make any representations or statements with regard to the work which was to be done except such as were contained in the contract which was signed by the said plaintiffs and this defendant, in duplicate, one of which has at all times been and now is in the possession of the plaintiffs and the other in the possession of this defendant, the terms of which were to some extent explained by the said David Lee to the said plaintiffs, and as a result of .such explanation the bid of the said plaintiffs for said work was increased in several particulars.
    “And the said defendant says that it is not true that the said plaintiffs were compelled to rely and did rely upon any statements made by it or any of its officers or agents with reference to the character of the earth to be removed in the performance of their said contract.
    “And the defendant says that the test holes referred to in said amended petition were not made for the purpose therein stated, but for an entirely different purpose.
    “And the defendant says that no representations, true or otherwise, were authorized by this defendant and none such were made under its authority. And the defendant says that the said plaintiffs did not rely upon such representations and had no authority, as they were advised, to rely upon any such representations. And the defendant says that it is not • true that said plaintiffs on or about the date named in said amended petition discovered the kind and character of the material to be removed under their said contract, and it says that if such is the fact, that it was owing to the negligence and want of proper care upon the part of the said plaintiffs in bidding upon the said work without having full knowledge with reference to such kind and character of material.
    “And the said defendant denies each and all of the other averments contained in said amended petition and says that the same are not true.

      “And the defendant further avers and says that the said plaintiffs, without the consent of this defendant, and without any excuse for so doing, abandoned the performance of their said contract and refused to proceed with or complete the same, and that they are not, therefore, entitled to recover anything by reason of any of the matters averred in said amended petition.
    “And for answer to the second cause of action contained in said amended petition, the said defendant says that the said A. M. Kinsman had no authority to make a contract with said plaintiffs for the extra work referred to in said cause of action, and it denies that he made any such contract.
    “And for answer to the third cause of action contained in said amended petition, the defendant denies each and all of the averments therein contained.
    “And for answer to the fourth cause of action contained in said amended petition, the said defendant,, admitting the execution of the contract referred to-therein, and the commencement by the said plaintiffs of work thereunder, denies each and all of the-other averments therein contained, and says that the same are not true.”
    The jury found for the plaintiff on the first cause-of action, $42,526.16; on the second, $2,261.98; on the third, $454.13; and on the fourth, $1,505.01. Motion for new trial was made and overruled and judgment entered on the verdict. The circuit court found the judgment excessive in the amount found due on the third cause of action, and as to all hut $354.13 of the amount found due on the fourth, and upon the plaintiff entering a remittitur of those-amounts, the judgment as to the remainder was affirmed.

      Mr. F. A. Durban and Messrs. Cummings, McBride & Wolfe, for plaintiff in error.
    Onr first contention is that the court erred in permitting statements of agents to go to the jury, without first showing the authority of these agents to make these or any statements- binding on the company.
    The petition alleges that Lee and Kinsman had authority to bind the company. The answer denies this. It then became the duty of the plaintiffs to sustain the allegations of their petition on the subject of authority before it was competent to give in evidence their statements.
    There is no attempt made to show any authority, whatever, in these agents to make the statements attributed to them. The court allows them to proceed on the theory that they had the authority and in the charge to the jury says:
    “And when it created an agent for the purpose of making a contract on its part, it presumably gave him authority to enter into all negotiations leading up to the contract and to make all the representations pertinent thereto.”
    This charge clearly does not state the law and under the decision the evidence was incompetent. Railway Co. v. Marsh, 63 Ohio St., 236.
    The simple fact that they say Kinsman signed this contract as engineer of the company and as agent does not show that he had authority to make representations wholly unnecessary to be made as an incident to the signing of the contract. Neither does the signing of the contract give any inferential authority to make the' alleged representations. Humphrey v. Havens, 12 Minn., 298.

      Again, agency cannot be proved by evidence describing tbe contract of tbe alleged agent. Americas Oil Co. v. Gurr, 40 S. E. Rep., 780; s. c. 114 Ga., 624; 1 Wood’s Railway Law, 446; Gardner v. Railroad Co., 70 Me., 181; Thayer v. Railroad Co., 24 Vt., 440; Vanderwerker v. Railroad Co., 27 Vt., 125; Herring v. Skaggs, 73 Ala., 446; s. c. 34 Am. Rep., 4; 28 Am. & Eng. Ency. Law, 784; Wood Mach. Co. v. Crow, 70 Ia., 340; Churchill v. Palmer, 115 Mass., 310; Applegate v. Moffet, 60 Ill., 104.
    In the case at bar plaintiffs allege in their petition that these men had authority to bind the company. The answer denies. The court-in its charge says it it not necessary to prove authority. Under the authority above stated, this was clearly prejudicial error. Railway Co. v. Faught, 31 Ill. App., 110; Huntsville B. & L. Co. v. Corpening, 97 Ala., 681; s. c. 12 So. Rep., 295; Wikle v. Railway Co., 29 Am. & Eng. R. R. Cases (N. S.), 333; Greenleaf on Evidence, sec. 64 and 64a.
    These authorities show that the testimony offered by the plaintiff as to what the agents said at the time of the making of the contract and as to what Kinsman said after contract was made was incompetent because of plaintiff’s failure to first show authority of agents to make such statements.
    We come now to discuss the extent to which these declarations if they were competent, may bind the company. In what respect was the alleged declaration of Kinsman competent, wherein he is claimed to have told the plaintiffs that he knew they would lose from $25,000.00 to $35,000.00 on their contract? How was the testimony of plaintiffs competent on the subject-matter of Kinsman having waived the provisions of the contract in reference to subletting when the contract itself provided that no contract for subletting would be valid unless same was waived it writing? No authority is shown upon his part to waive anything for the company. This contract stands as the contract between the parties and by its terms they must stand or fall, except so far as it might be modified if at all, by the alleged misrepresentations. Railway Co. v. Ehman, 30 Ind., 83; Hynds v. Hays, 25 Ind., 34; Railway Co. v. Stults, 31 Kan., 752; Railroad Co. v. Green, 68 Mo., 169.
    Applying this doctrine to the case at bar, before the railroad company could be held liable by any statement of Kinsman, Lee or Frazier, they, Jollys, must show that these parties had authority to make them in reference to this particular subject-matter.
    One of the grounds upon which the defendant in error claimed the right to recover in this action was that Kinsman as an inducement for Jolly Bros, to enter into the contract told them that test holes had been dug along the right of way and that the earth to be removed was dry ground.
    Our contention is that plaintiff’s remedy is a suit in equity to avoid a contract and could not be made the basis of a suit at law. Wood v. Railway Co., 39 Fed. Rep., 52; Kidwell v. Railway Co., 11 Grat., 676; Grant v. Railway Co., 57 Ga., 352; Railway Co. v. Veeder, 17 Ohio, 396.
    The leading case upon the subject is that of Herrick v. Belknap et al., 27 Vt., 673. In this case it is clearly held that an action like the case at bar could not be maintained until a suit in equity had been brought to set aside the contract. Cummins v. Hurlbut, 92 Pa. St., 165.
    In the case at bar, it is sought to introduce oral testimony as to what was paid prior to the making of the contract, on the ground that this engineer wrongfully and falsely warranted the kind of earth to be removed. Can this be a warranty? Is it not at most simply the expression of an opinion? If so, no damages can be based on that. If 'this testimony was rightly admitted, it could only be admitted for the purpose of showing whether or not it was a breach of warranty and not to add to or contradict the contract.
    Again, there is no claim made that the agent or any agent of the plaintiffs in error in any way prevented or sought to prevent the Jollys from using their own means or faculties in ascertaining for themselves the kind of soil to be excavated. The subject-matter of the talk was not one about which any representations could be made. It could only amount at best to an expression of an opinion.
    Mr. Wood in a note in 2 Addison on Torts, 422, states the test by which we can determine whether or not a representation is a mere expression of an opinion or a substantive fact. 2 Addison on Torts, sec. 1186.
    In the case at bar, there is no claim that test holes were made all through the cut or in any particular place. There is no claim that all of the earth in the cut to be excavated was gravel. The evidence does show that over two-thirds of the excavation in the cut was gravel. Wherein then was the misrepresentation? If the parties making the representation acted from honest motives and an honest belief that what they said was true, there can be no liability. Lord v. Goddard, 13 How. (U. S.), 198; Conrad v. Nicoll, 4 Pet. (U. S.), 29; Chester v. Comstock, 40 N. Y., 575.

      The very gist of an action is the fraudulent intent with which the representations are made and the mere fact that it is false does not establish the fraudulent intent, it must be shown that the party knew it was false. Rheem v. Naugatuck Wheel Go., 33 Pa. St., 356; Stafford v. New'som, 9 Ired. (N. C.), 507; Bond v. Clark, 35 Vt., 577; Gibbs v. Odell, 2 Cold. (Tenn.), 132; Telluride Power Transmission Go. v. Crane Go., 103 111. App., 647.
    But if the workman has exercised his own judgment and skill in the matter, and ought not to have depended upon the representations of the employer, he will not be permitted to avoid the contract on the ground of fraud. 1 Addison on Contracts, sec. 305; Railway Co. v. Walton, 37 N. E. Rep., 920; Kerr on Frauds and Mistake, 88; Scrogin v. Wood, 54 N. W. Rep., 437; Nichols Shepard Co. v. Crandall, 6 L. R. A., 412; The National Cash Register Co. v. Blumenthal, 85 Mich., 464.
    If the statement was made, did the Jolly Bros, have' the right to rely upon it ?
    But suppose these parties did make the statements that are claimed to have been made, how could the other side have been misled? They had the same opportunity of making an examination for themselves of the character and quantity of the earth to be removed, but they endeavored to shield themselves by claiming that they relied on the statements of the agents- of the company. If they did that they must do it at their peril, and is not that the law? Lysney v. Selby, 2 Ld. Raym., 1120; Packard v. McConnell, 11 Mich., 88.
    That these parties in the ease at bar had equal opportunities, is disclosed from the evidence; they admit that they went over the ground on two different occasions. There is no evidence that anyone acting on the part of the company sought in any way to prevent them from using their own means to ascertain the kind and character of this soil; therefore it seems to us that the last sentence in the case above cited should have great weight in determining the rights of these parties.
    They could not sit down quietly and fold their hands and say, it is true, we have equal facilities with the other side to discover the kinds of excavation we were bidding on, but we will not avail ourselves of it but we will rest our rights upon their statements and rely wholly upon them without making any effort whatever to discover for ourselves whether they are true or false. Hicks v. Stevens, 121 Ill., 186; Cooley on Torts, 487; Clark v. Everhart, 63 Pa. St., 347; Watts v. Cummings, 59 Pa. St., 84; Bird v. Holmes, 34 N. J. Law, 296; Masterton v. Beers, 31 N. Y. S., 406; Reynolds v. Palmer, 21 Fed. Rep., 433; Babcock v. Libbey, 53 How. Pr., 255; Doctor v. Gillmartin, 5 N. Y. S., 894; Morril v. Madden, 35 Minn., 493; Morril v. Madden, 37 Minn., 282; Hill v. Bush, 19 Ark., 522; Nounnan v. Sutten, 81 Cal., 1; s. c. 6 L. R. A., 219; Slaughter v. Gerson, 20 Law. Ed., 627; s. c. 13 Wall., 379; Martin v. Development Co. et al., 69 Pac. Rep., 216.
    In the case at bar, the groundwork of plaintiffs’ claim is that after the work had progressed a while and they had found the character of the earth to be removed to be different from what they supposed, that Kinsman, the engineer of the company, and without showing that he had any authority to make such contract, told them they should continue the work and he would see that the company paid them what it was reasonably worth. This new contract, if any was made, was entirely without consideration and void, therefore that portion of the claim of plaintiffs based upon that pretended new part of the contract must be set aside. Ayers v. Railway Co., 52 Ia., 478.
    Again, our second contention is that if a new contract was made and held good that the old contract would only be abrogated in so far as the new contract stated the difference. Kellar v. McCaully, 40 Am. & Eng. R. R. Cases, 589.
    If the law is as stated in the decision last above quoted, that all of this written contract governs save and except what has been modified by the alleged fraud in the procurement of the same, then that portion of the contract stands which provides that the classification of the kind and quantity of the earth to be removed shall be made by the engineer and that his decision shall be final. It is therefore our contention that under this contract these parties having accepted from the engineer the monthly estimates made by him in which he certified to the amount of earth removed and the total amount they would receive therefor and that they having receipted for the money due them under these estimates, have waived any right they might have for damages in this case and there is nothing due them save'1 and except the unpaid estimate of the engineer if any there be. There is no dispute in the evidence but what a number of the estimates of the engineer in charge of the work based upon these estimates were made out by him and that the defendants in error received their pay thereunder.
    The court must keep in mind that there is no claim made that these estimates were fraudulently made; they were correct both as to classification of earth, and as to the amount of earth removed because it is not claimed in the evidence that they were misled into signing a contract in which there was either a wrong classification or an incorrect number of feet estimated. We contend therefore that these estimates are binding upon all parties according to the terms of the contract. Railway Co. v. March, 114 U. S., 549; Ross v. McArthur, 52 Am. & Eng. R. R. Cases, 1; s. c. 85 Ia., 203; Railway Co. v. Wilcox, 48 Pa. St., 161; Sharp v. Railway Co., 27 Law T., 699; Ross v. McArthur, 85 Ia., 203; Grant v. Railway Co., 51 Ga., 348; s. c. 7 Am. Ry. Rep., 81.
    A certain portion of the damage claimed in this case is based upon the refusal of the company to permit this contract to be sublet. The contract expressly provides that unless they get a written permit to sublet the contract, any attempt to do so, will be entirely void, in the event they prove such written contract then the liability of the party after refusing to permit them to carry out the contract will be governed accordingly. 2 Rorer on Railroads, 867; Story v. Railway Co., 6 N. Y., 85; Masterton v. Brooklyn (Mayor) et al., 7 Hill, 61; again in 2 Rorer on Railroads, 868; Railway Co. v. Shively, 45 Tex., 355.
    As to construction of a contract see: Railway Co. v. Veeder & Co., 17 Ohio, 385; Lewis v. Railroad Co., 49 Fed. Rep., 708; Vandewerker v. Railway Co., 27 Vt., 130.
    These parties claim' that when they called the attention of- the engineer in charge of the work to the fact that the kind and quantity of the material to be removed was different from what they had been told it was when they made the contract and by which they were induced to make it, that the engineer then said to them: ‘ ‘ Continue in the work, go ahead and complete the excavation; I will fix it np in my next estimate or I will see that the company pays for it. ’ ’ This, in effect, made a new contract on the subject of pay. It was new at least to the extent of the classification and price. Giving their talk then the effect of making a new contract and that they really made a new contract, then the plaintiffs would have no right of action against defendant because the new contract is a compromise of their claim and they therefore would have to sue on it and not on the fraud.
    Counsel for plaintiff in error in their additional brief cited and commented upon the following authorities: Story on Agency (5 ed.), 160; Woodruff, et al. v. Railway Co., 108 N. Y., 40; Campbell v. Railway Co., 34 Am. & Eng. R. R. Cases, 113; Sanitary Dist. of Chicago v. McMahon and Montgomery County, 110 Ill. App., 510; Prior v. Flagler, 31 N. Y. S., 193; Gardner v. Railway Co., 70 Me., 181; Blackwell v. Ketcham, 53 Ind., 186; Thomas v. Atkinson, 38 Ind., 248; Rossiter v. Rossiter, 8 Wend., 494; s. c. 24 Am. Dec., 62; McAlpin v. Cassidy, 17 Tex., 449; Conners v. The United States, 130 Fed. Rep., 609; Swenson & Sons v. Colvin, 130 Fed. Rep., 626.

      Messrs. Jenner & Weldon and Mr. L. C. Stilwell, attorneys for defendants in error.
    Suit was not brought on a written contract, and the answer does not set up .a written contract as a defense.
    The first cause of action is for damages resulting to defendants in error by reason of false representations made to them by reason of which they were induced to sign the written contract of April 10, 1899. When the fraud was discovered, they notified the chief engineer in charge of the work, that they would abandon tbe work and claim damages for the fraud. He admitted that the material in the big cut was not as represented, and agreed, if they would go on with the work and increase their plant, they should be paid for excavating this material in the big cut, on the fifteenth of each succeeding month. They relied upon this promise, expended about $10,000.00 in additional plant, and went on with the work.
    The answer of the defendant below denies that Lee and Kinsman had any authority to make any representations, or that they made any representations; admits that the defendant below made test holes to ascertain the kind of material that was in this hill, but denies that they were made for the purpose stated in the amended petition.
    The legal questions involved in this case have frequently been considered and disposed of by this court. We will content ourselves with citing a few of the cases that we consider in point, on the issues involved.
    Counsel then cited and commented upon the following authorities: Lake v. Doud et al., 10 Ohio, 420; Strader et al. v. Mullane & Johnson, 17 Ohio St., 626; Landis v. Kelly & Kelly, 27 Ohio St., 567; Insurance Co. v. Reed, 33 Ohio St., 283.
    The doctrine announced by the Supreme Court of Ohio is in accord with the decisions of courts of last resort in other states. It may be said that citing authorities of other states on legal questions which may be said to have finally been settled by the courts for a longer period of years, is useless labor and especially to cite any cases outside of our own state, but our apology, if any is needed, is that learned counsel representing plaintiff in error have relied mainly upon adjudications other than those of our own Supreme Court. Chatham Furnace Co. v. Moffat, 147 Mass., 403; Hexter v. Bast, 125 Pa. St., 52; Wells v. McGeoch, 71 Wis., 196; Swayne v. Waldo, 73 Ia., 749; Emmons et al. v. Moore, 85 Ill., 304; Fisher v. Mellen, 103 Mass., 503; Mead v. Bunn, 32 N. Y., 275; Rice et al. v. Manley, 66 N. Y., 87; 1 Story’s Equity Jurisprudence, sec. 193.
    David Lee and A. M. Kinsman were the authorized agents of plaintiff in error in the representations made in entering into the contract and in making the parol contract.
    The written contract gave Mr. Kinsman express, and we may say, unlimited authority, as to all matters pertaining to this improvement. He is held out hy plaintiff in error as the ultimate authority from whose decision there will be no appeal.
    In the written contract Mr. Kinsman, the engineer of construction, is expressly given the authority of the chief engineer.
    The defendants in error therefore had the right to rely upon any statements made by Mr. Kinsman while they were proceeding with the work. When they ascertained that the material was not as represented, was not good gravel hut was blue mud and they informed Mr. Kinsman that they would abandon the contract hy reason of these misrepresentations, and when Mr. Kinsman informed them that the railroad company must have that work done whatever it cost, and if they would proceed with the work they should be paid for the same what it was reasonably worth on the fifteenth of each succeeding month, he had authority to make that contract hy the terms of the written contract and they had the right to proceed with the work relying upon that verbal contract.

      The rule of law deduced from adjudicated cases is well stated in 1 Wood on Railroads, 501; see also Tanner v. Railway Co., 53 Pa. St., 411; Perkins v. Railroad Co., 47 Me., 573; Railroad Co. v. Coleman, 27 Ill., 297; Hayden v. Middlesex Turnpike Co., 10 Mass., 397; Burdick v. Glass Co., 11 Vt., 19; Bodine v. Fire Ins. Co., 51 N. Y., 117; Newell v. Smith, 49 Vt., 255; Nugent v. Railroad Co., 13 Dec. Re., 185; 2 Disn., 302.
    The Supreme Court of Ohio goes so far as to subject corporations to exemplary or punitive damages for the acts of its agents done within scope of their employment in all cases where natural persons would be liable to such damages. Railway Co. v. Dunn, 19 Ohio St., 162; Railroad Co. v. Scott, 56 Ohio St., 736; Railway Co. v. Ensign, 56 Ohio St., 760; Telegraph Co. v. Smith, 64 Ohio St., 117.
    .As to the declarations of Kinsman and his verbal statement while acting as agent of the plaintiff in error in the performance of this work, counsel for plaintiff in error cite the case of Railroad Co. v. O’Brien, 119 U. S., 99, and quote from that case at some length. The Supreme Court of the United States in that case is fully in accord with the authorities we have cited. We claim for that case that it sustains our contention.
    The second cause of action set forth in the amended petition is for extra work performed by defendants in error for the plaintiff in error.. There was a large amount of this extra work not included in or provided for by the contract. It was ordered by A. M. Kinsman himself, who was the representative of the railroad company, who executed the written contract on behalf of the company, and who by the terms of the written contract was authorized to construe the contract and determine finally and without appeal the amount and value of all work performed by Jolly Bros.
    The answer of the railroad company to this second cause of action does not set up a written contract as a defense, but only denies that A. M. Kinsman had any authority to make a contract with plaintiffs for the extra work performed in said second cause of action, and denies that he made such contract. On this issue so presented the testimony was submitted to the jury. Mr. Kinsman himself admitted there was a large amount of extra work performed under his orders; and both Mr. Eedgrave and Mr. Kinsman admit that bills for this extra work had been forwarded to the company each month and had been approved and they never were paid. This court will not weigh the evidence submitted to the jury on this cause of action, nor will they say that a provision of a written contract overweighs all other evidence.
    Counsel for plaintiff in error claims that the written contract closes the door conclusively for compensation for this extra work performed by the defendants in error.
    Our reply to this claim of counsel for the company is, that when it was shown that the representations of the agents of the company were untrue as to a material portion of the contract, and that by reason of that fact the contract was void and Jolly Bros. deT termined to abandon the work because of the fraud perpetrated upon, them, and thereupon the new parol agreement was entered into for the performance of the work by A. M. Kinsman, the written contract was no longer of any binding force between the parties. The parties to the original contract recognized it only so far as it fixed values for the material excavated other than the blue mud, quicksand and wet excavation, and we maintain it had no other force between the parties after it was established or agreed upon between the parties that it had been induced by false representations.
    But suppose we are wrong as to this view and that the written contract might be held to be binding between the parties as to this extra work and extra material furnished, then as we have said A. M. Kinsman was made the representative of the company in the contract to determine the amount and value of the material ; for the company he could waive the formality of making a written order in the first instance for extra work to be performed and give a verbal order for the same, afterwards, approved in writing. This was the course of business.
    A. M. Kinsman did not occupy the position of an ordinary engineer in this contract; he was the representative of the company. By the contract he determined finally all questions that arose with reference to this work; for the company he determined it finally and without appeal. An individual can waive this provision of a contract or any provision of a contract made for his benefit; so could A. M. Kinsman waive on behalf of the company that he represented.
    In speaking about provisions of this kind in contracts for the benefit of the owner, this court in the case of Ashley v. Hanahan, 56 Ohio St., 559, has held that such stipulation being for the benefit of the employer may be waived, but when waived should be by clear, convincing evidence so as to leave no reasonable doubt about it.

      Mr. J óhm, W. J owner in his brief on oral argument cited and commented upon the following additional authorities: Insurance Co. v. Reed, 33 Ohio St., 292; Cook on Stock and Stockholders, sec. 140; New York Exchange Co. v. DeWolf, 31 N. Y., 273; 1 Greenleaf on Evidence, sec. 284; 4 Sutherland on Damages, sec. 1168; Taylor v. Leith, 26 Ohio St., 428; Insurance Co. v. Reed, 33 Ohio St., 283; Raudabaugh v. Hart, 61 Ohio St., 73; Smith v. Lewis, 26 Conn., 110; Cutter v. Powell, 2 Smith’s L. C., 12; McCoy’s Admr. v. Bixbee, 6 Ohio, 310; Campbell v. Gittings, 19 Ohio, 347; 1 Phillips on Evidence, 419.
   Summers, J.

It is difficult to determine from the charge of the court and the arguments of counsel whether this was an action for damages for false representations or an action for the amount due under a written contract as subsequently modified by parol, the alleged fraudulent representations being set out merely to show a consideration for the modification.

Conceding that a party may, without electing to. pursue one of two remedies, plead the facts and recover whatever he may be entitled to under the proof (a course sometimes as difficult to pursue as to try to sit upon two chairs), it becomes necessary to consider whether upon either theory he is entitled to recover.

It is manifest from the petition that Jolly Bros, based their claim on the parol contract. They aver that upon ascertaining that they had been deceived as to the character of the material in the big cut, they notified Kinsman that they would abandon the contract and claim damages for the fraud that had been perpetrated upon them. That Kinsman then promised that if they would continue the work they should he paid for the excavating of the material of' which they complained what the same was reasonably worth, and that they should be paid for that and other work done by them between the tenth and fifteenth of each month for the work done in the preceding month. That they relied upon that promise, and performed the work “under said verbal contract so made, ’ ’ and that they quit the work because the railroad company failed to pay them the amount due under this new contract. That this is so is manifest also., from the fact that such a contract would waive the fraud. Robb v. Vos, 155 U. S., 13; McLean v. Clapp, 141 U. S., 429; Pintard v. Martin, 1 Smed. & M., Ch., 126.

The court instructed the jury that the suit was not upon the contract but for fraud, and then charged them that if they found for plaintiffs on the fraud, and that this new arrangement had been made, that they should allow plaintiff for the material, as to which the price was changed, removed by them, what it was reasonably worth to remove it, not exceeding forty cents per cubic yard. The court also, at the request of plaintiffs’ counsel, gave the jury the following instruction:

“If the jury find by a preponderance of the evidence that the defendant by its authorized agents agreed to pay plaintiffs for the material excavated and removed by them on or before the fifteenth day of each succeeding month and defendant refused to comply with said contract and pay plaintiffs in accordance with the terms thereof, then plaintiffs were authorized to quit said work and the defendant would be liable to them for all the work performed by plaintiffs under said contract. ’ ’

Assuming that the plaintiffs could recover for the ■alleged false representations, the direction of the ■court that the jury should allow plaintiffs what it was reasonably worth to remove the blue mud, not ■exceeding forty cents per cubic yard, was perhaps not prejudicial to the railroad company.

Conceding, hut not deciding, that the acts of an agent, within the scope of the authority apparently incident to the position he holds, are deemed .the acts •of the principal, and that a stipulation in a written •contract, that it shall not he affected by inferences from conversations previous to its execution, will not ■shield a party from his false representations; in •other words, that the Baltimore & Ohio Railroad Co. is hound by a contract made in its name by an agent having apparent authority to make the contract, and is responsible for his false representations respecting the subject of the contract notwithstanding a •stipulation therein that the contract is not to he affected by inferences from conversations; and conceding also that a failure to make payments at the time stipulated in the contract would relieve the •other party from the obligation to go on, we proceed to inquire what authority, real or apparent, Kinsman had to contract for the Baltimore & Ohio Railroad Co.

The negotiations resulting in this contract were between Jolly Bros., and Joseph M. Graham and David Lee on the part of the railroad company. ■Graham was superintendent of the trans-Ohio division, and afterward chief engineer. Lee was •engineer of maintenance of way on that division. Graham says he got his authority to make the contract from Underwood, the general manager; and •after the negotiations were closed, after Jolly Bros. had submitted one bid on April 1st, and then another, and had modified that on April 5th, the question of accepting their bid was considered, and a day or two before April 10th, Graham directed Lee to enter into the contract, and Lee directed Kinsman to-sign the company’s name to the contract, which he did. Kinsman had been in the employ of the company only a few weeks, and had seen the location of the improvements but once, and that from the rear’ coach of a train on his way over the road. The company, at the time, had no chief engineer. Kinsman was to be engineer in charge of the construction of these improvements, and the printed form of contract was changed by a provision to the effect that whenever the words “chief engineer” were used, they should be understood to mean the engineer of construction. Nothing had occurred prior to the execution of this contract to warrant an inference-that Kinsman had authority to contract for the Baltimore & Ohio Railroad Co., and plaintiff’s counsel do not so contend. So that the question is as to the-extent of Kinsman’s powers as delimited by the contract, and the contention of plaintiff’s counsel is that. Kinsman had the authority of the chief engineer;that by the terms of the contract:

“The chief engineer may make such allowances and estimates as he deems just for any loss or damage to the contractor resulting from delays of any kind, whether caused by failure to procure right of way, borrow pits, or materials required to be procured by the company, or to furnish plans, or from alterations in plans, or from any other cause whatever; and it is expressly understood that the contractor agrees to accept such allowances and estimates in full satisfaction of such loss or damage, the decision of the chief engineer as to the amount of such loss or damage being final and conclusive and binding on both parties.
“17. The classification of all excavations, masonry, etc., shall be made by the engineer, or chief engineer, and their decision in regard to the same shall be final and binding, and from it no appeal shall be taken.
“And it is mutually agreed and distinctly understood, that the decision of the chief engineer shall be final and conclusive in any dispute which may arise between the parties to this agreement relative to or touching the same; and each and every one of said parties do hereby waive any right of action, suit or suits, or other remedy in law or otherwise, by virtue of the covenants and provisions herein, so that the decision of said chief engineer, shall in the nature of an award, be final and conclusive on the rights and claims of said parties.”

That these provisions invested him with authority to decide disputes, to determine the classification of the blue mud, and notwithstanding technically it fell under the classification “earth excavation,” to place it in a more expensive class. But clearly this is authority only to decide disputes and to make allowances for loss or damages growing out of the performance of the contract, and not authority to make new contracts. It gave him no authority to decide that the contract was voidable because of false representations, and it would be surprising that a contract which the superior officers of the company had thought it important to hedge with so many provisions might be set aside by the engineer of construction, and the company be bound by one simply to pay whatever the work was reasonably worth.

And an agreement by Kinsman to pnt work admitted to belong, under the specifications, to one class in a higher class, would be a fraud on and not binding upon the company.

It follows that there could be no recovery on the alleged parol contract, and the next question to be determined is whether the judgment can be upheld on the basis of damages for false representations. There are cases in which it is said that a person who has been defrauded by another in making an executory contract is not barred of a remedy for his damages for the fraud by a subsequent performance of it on his part with knowledge of the fraud, acquired subsequent to the making and previous to the performance. That the extent of the rule is that the party defrauded, by performing his part of the contract with knowledge of the fraud is deemed to have ratified it and is precluded thereby from subsequently disaffirming it. But, by the better reason if not the weight of authority, the performance of an executory contract after knowledge of facts making it voidable on the ground of fraud in its procurement, is a waiver of any right of action for damages for the fraud. There are cases of part performance before discovery, and where it was impracticable to stop, in which it is held that performance was not a waiver.

As stating that performance is not a waiver the following may be cited: Mallory v. Leach, 35 Vt., 156; 82 Am. Dec., 625; Parker v. Marquis, 64 Mo., 38; Nauman v. Oberle, 90 Mo., 666; St. John et al. v. Hendrickson, 81 Ind., 350; Johnson, Admr. v. Culver, Admx., 116 Ind., 278; Whitney v. Allaire, 4 Denio, 554; Whitney v. Allaire, 1 N. Y., 305.

And as holding that performance is a waiver: Saratoga & S. Railroad Co. v. Row, 24 Wend., 74; 35 Am. Dec., 598; People v. Stephens, 71 N. Y., 527; Selway v. Fogg, 5 M. & W., 83; Nounnan v. Sutter County Land Co., 81 Cal., 1; Sellar et al. v. Clelland et al., 2 Col., 532; Sell v. Miss. River Logging Co., 88 Wis., 581; Gilchrist v. Manning, 54 Mich., 210.

Here the facts were known within a week or two after the commencement of the work, and the plaintiffs conld not go on with the work, accept payment at the prices stipulated in the contract,' and then, when it proved a losing venture, quit and sue for damages on the ground that their loss was caused not by themselves in electing to go on with the work but by the false representations of the defendant.

This court is not required to pass on the weight of the evidence, however, speaking for myself alone, and in view of the charge of fraud I think it proper to do so, I am of the opinion that the verdict, on the question of false representations, is against the manifest weight of the evidence, and that it is quite apparent from the plaintiff’s evidence alone that the contract was not induced by fraudulent representations, but that the plaintiffs were not as careful as they should have been in ascertaining the character of the material to be moved, and that, when a losing venture stared them in the face, Kinsman urged them to go on with the work, and promised to intercede with his superiors for an additional allowance on the bad material in the big cut. They did go on for six months until their payments were held up because, so it is contended, of attachments and subcontractors’ liens, when they quit.

The action not being maintainable either on the alleged parol contract, or for damages for the alleged fraudulent representations, may a recovery be had on the written contract 1

The contract provided for payments on monthly estimates, but it was agreed by the plaintiffs that the monthly estimates, or any part thereof, should not be payable until they had furnished evidence to the engineer that they had paid in full all laborers and subcontractors in their employ. It is contended that this provision of the contract is not pleaded and that it is not averred that the payments were withheld because of attachments or subcontractors ’ liens. However, it is averred that the plaintiffs without the consent of the defendant and without excuse abandoned the performance of the contract and refused to complete the same. This averment possibly is broad enough to make relevant proof of attachments or liens. Such proof was offered and the court erred in excluding so much of it as tended to prove the existence of such claims at the time the plaintiffs abandoned performance of the contract. The plaintiffs averred that by the parol modification of the contract they were to be paid on the fifteenth of the month, and the court charged the jury that if they found the defendant by its authorized agent so agreed, and the defendant did not pay as so provided, the plaintiffs could quit the work and recover for ,what they had done, but as has been already determined the parol contract was not binding on the company. The question as to whether and how much if anything the plaintiffs may recover on the written contract does not appear to have been considered and we have not critically examined the record to see whether it clearly appears that plaintiffs can recover nothing on the written contract, being of the opinion that it will be in .the furtherance of justice to remand the ease for further proceedings, so that the question of plaintiffs’ rights under the written contract may be determined independently of any questions of modification or fraud.

As to the second cause of action, which is for extra work, the provision of the contract as to written orders for such work was for the benefit of the railroad company, and could not be waived by the engineer of construction. In Woodruff et al. v. Roch. & Pitts. Railroad Co., 108 N. Y., 39, 48, where a similar question was under consideration, Earl, J., says: “This was one of the terms of the contract and we are unable to perceive that the engineers had any power or authority 'to alter or change it. It was inserted in the contract to protect the defendant from claims for extra work which might be based upon oral evidence, after the work was completed and when it might be difficult to prove the facts in relation thereto. If the engineers in charge had an unlimited authority to change the contract at their will, and to make special agreements for work fairly embraced therein, then the defendant had very little protection from the reduction of their contract to writing. If these engineers were the agents of the defendant, they were its agents with special powers, simply to do the engineering work and to superintend and direct as to the execution of the contract. But they had no power to alter or vary the terms of the contract or to create obligations binding upon the defendant not embraced in the contract. ’ ’ Campbell v. Cincinnati So. Railroad, 9 Ky. Law Reporter, 799; 34 Am. & Eng. R. R. Cases, 113; Sanitary Dist. of Chicago v. McMahon & Montgomery Co., 110 Ill. App., 510.

As to the fourth cause of action. The contract, in substance, provided that the company, giving ten days’ notice, might at any time, for any reason that seemed to it sufficient, and without fault on the part of plaintiffs, annul the contract, in which event the plaintiffs were to be paid in full the estimates for the work done, and such annulment was not to give them any claim for damages against the company. It appears, from the evidence, that plaintiffs furnished pipe of the value of about three hundred dollars, on requisition of the company, for the work to be done under the contract of May 19th, and for that, it is presumed, part of the judgment on this cause of action was affirmed by the circuit court, but there are no allegations in the pleadings to support a judgment for the value of the pipe.

It appears, therefore, that the plaintiffs could not recover on the parol contract for want of authority in Kinsman to bind the company; nor for damages for false representations, because, if proven, it appears from the petition that plaintiffs waived the fraud; nor on the contract of May 19th, because they therein agreed that the company might annul it without giving them any claim for damages," and it follows that the judgment is reversed and the cause remanded for further proceedings.

Remanded.

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


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The Village of Pleasant Hill et al. v. The Commissioners et al.

      County commissioners — Except in sections 4488 and 4485, Revised Statutes — Are without authority to construct a ditch —In municipal limits.

    Except as provided in section 4483 or 4485 of Title 6, Chap. 1, Revised Statutes, county commissioners are without jurisdiction or authority to locate and construct a county ditch within the corporate limits of a municipality.
    (No. 8592
    Decided December 6, 1904.)
    Error to the Circuit Court of Miami county.
    The defendant in error, Mary E. Faulkner, filed her petition with the hoard of commissioners of Miami county, Ohio, praying for the location and construction of a county ditch having its commencement, and its course except for a short distance near the point of outlet, entirely within the corporate limits of the village of Pleasant Hill in said Miami county. Thereafter such proceedings were had before said board of commissioners that the prayer of said petition was granted and said ditch was ordered to be constructed. To meet the cost of the location and construction of said ditch, an assessment was levied by said board against the village of Pleasant Hill as a corporation, and a separate assessment levied against each of the property holders in said village whose lands the commissioners found would be benefited by said improvement. An appeal was taken by the village and about forty of the landowners, to the probate court of Miami county. In that court the cause was submitted to a jury and a verdict returned in favor of the location and estab-, lishment of said ditch. A motion was then filed by the appellants asking that said verdict he set aside and challenging the authority and jurisdiction of said hoard of commissioners to locate and establish a ditch within the corporate limits of the village of Pleasant Hill. This motion was sustained by the probate court and an order made remanding the proceedings to the board of commissioners with directions to dismiss the same for want of jurisdiction. This judgment and order of the probate court was affirmed by the court of common pleas. Error was then prosecuted by the defendants in error — the Board of Commissioners and Mary E. Faulkner— to the circuit court of Miami county, which court reversed the judgments of the court of common pleas and probate court for the reasons, as. stated in its entry of reversal, that:
    “The said probate court of Miami county, Ohio, erred in finding that said board of county commissioners has no jurisdiction, power or authority to entertain said petition filed by said property owner nor to grant the prayer of said petition and order the construction of said ditch and has no power or authority to proceed in said matter or to construct said ditch and the probate court erred in sustaining said motion and in remanding said proceedings to the board of county commissioners of said county to be dismissed by said board of county commissioners for want of jurisdiction. The probate court erred in ordering the board of county commissioners to pay the costs of said proceedings. The court of common pleas erred in affirming the said findings, judgment and proceedings of said probate court.”
    To reverse this judgment of reversal and obtain an affirmance of the judgments of the common pleas and probate courts this proceeding is prosecuted.

      Messrs. Gilbert, Shipman & Campbell, attorneys for plaintiffs in error.

      Mr. T. M. Campbell, attorney for defendants in error.
   Crew, J.

The printed record in this case presents for determination this single question: “Did the board of commissioners of Miami county have jurisdiction and authority to entertain the petition of Mary E. Faulkner, to grant the prayer thereof and to order the location and construction of the ditch therein prayed for?” This question was answered by the probate court and the court of common pleas in the negative, and judgments were rendered accordingly. The circuit court being of opinion that ;said board of commissioners had jurisdiction in the premises reversed the judgments of the lower courts and remanded the cause to the probate court of Miami county for further proceedings. In this finding and judgment of the circuit court we think there was error. The boards of county commissioners of the several counties, and the municipal authorities of the several cities and villages within this state, in the matter of the location and construction of drains and ditches, have such jurisdiction and authority and such only, as is given them respectively by statute, and the power and authority of each is limited to the power and authority so conferred. It would seem to be conceded in the present case that whatever authority was conferred upon or possessed by the board of commissioners of Miami county to locate and establish the ditch in controversy, was conferred upon said board by the provisions of section 4447, Revised Statutes, which section is as follows:

‘ ‘ The commissioners of any county at any regular or called session may, in the manner provided in this chapter, when the same is necessary to drain any lots, lands, public or corporate road or railroad, and will be conducive to public health, convenience or welfare, cause to be located, and constructed, straightened, widened, altered, deepened, boxed or tiled, any ditch, drain or water course, or box or tile any portion thereof or cause the channel of all or any part of any river, creek or run, within such county to be improved by straightening, widening, deepening or changing the same, or by removing from adjacent lands any timber, brush, trees or other substance liable to form obstruction therein.”

It is the contention of counsel for defendants in error that by virtue of this section county commissioners are authorized and empowered to locate and' construct at any place within the county, either within or without the corporate limits of a municipality, and where within such limits, without the consent of the municipal authorities, any ditch, drain or water course, provided only the same will be conducive to public health, convenience or welfare. We cannot concur in this interpretation of this statute. To SO' interpret the language of this section as to give it such meaning is, we think, to overlook, or wholly ignore, other provisions of the statutes, hereinafter’ noticed, by which municipalities as such, are clothed with full power and authority over drains, sewers- and ditches within their respective municipal limits. Furthermore such interpretation ignores the fact that the authority conferred upon the board of county commissioners by this section is, by the express language of the section, to be exercised by such board “in the manner provided in this chapter.”' This section is a part of Chap. 1, Title 6 of the Be-vised Statutes, which title and chapter provides for the construction of county ditches. Section 4483, which is a section of the same chapter, provides when and how a municipal corporation may invoke the action of the board of commissioners in the matter of the' construction of a ditch “whenever the improvement will be conducive to the public health, convenience or welfare, of the whole or any portion of the inhabitants of the corporation.” The section is as follows:

“Section 4483. The council of a municipal corporation may, by resolution, authorize the mayor to present a petition, signed by him officially, and a bond, to the county commissioners, to locate and construct a ditch described in the resolution, or such council may authorize the mayor to sign officially a petition and bond for a ditch, to be presented by parties interested whose lands are without the limits of the corporation, whenever the improvement will be conducive to the public health, convenience, or welfare, of the whole or any portion of the inhabitants of the corporation; in such case the commissioners shall count the municipal corporation as an individual petitioner, and may direct the surveyor or engineer to locate the improvement in accordance with the petition, whether wholly within or wholly without, or partly within and partly without, the limits of the corporation; and the surveyor or engineer, in making his schedule of lots and lands benefited, may enumerate such lots and lands within or without the corporate limits as are specially benefited, and also the municipal corporation for benefits to the health and welfare of its inhabitants.” Section 4485, of the same chapter and title, provides that: “If the proposed improvement passes through or into a municipal corporation the mayor of which has not signed the petition therefor as provided in the preceding section, the mayor shall be notified of the pendency of the petition in the same manner and at the same time that the commissioners are required by section forty-four hundred and fifty-two to be notified; the mayor shall notify the council of the pendency of the petition, at its next regular meeting, or, if necessary, call a special meeting of the council for that purpose; and thereupon the council shall appoint a committee of its members, or the engineer of the corporation, or both, to meet the commissioners, at the time and place of their meeting and view, and confer with them in regard to the improvement. ’ ’

This section by its terms can have application only to the construction of a ditch or improvement having its source without the corporate limits of a municipality, but which when constructed and completed will pass into or through the corporation, and this section does not confer upon the board of county commissioners jurisdiction or authority to locate and construct in a city or village a ditch the source and course of which lie wholly, or substantially, within the municipal limits of such city or village, and the sole purpose of which is the drainage of lots or lands lying within the municipality. The right, of municipalities to provide for and control the matter of drainage within their municipal limits is recognized, and has been amply provided for by the legislature.

By section 2403, Eevised Statutes, power and authority is vested in the council of any city or village to provide for the construction of ditches for necessary drainage within the corporation. And by section 1692, power is expressly conferred upon cities and villages within this state, “To open, construct and keep in repair sewers, drains and -ditches,” within the municipality; and section 2232, Revised Statutes, authorizes them, for such purpose, “to appropriate, enter upon, and take, private property outside of the corporate limits.” From a consideration and comparison of these several statutory provisions, giving to each full force and effect, we are led to conclude that the manner in which drainage shall be accomplished within a municipal corporation is a matter primarily, and peculiarly, within the discretion and control of the municipality itself, by and through its legally constituted authorities. Dayton v. Taylor’s Admr., 62 Ohio St., 11, and we do not believe that it was the purpose or policy of the legislature to. confer upon boards of county commissioners jurisdiction and authority to locate and construct a ditch or drain within a municipal corporation, except where such municipality shall petition for the same, as provided in section 4483, or when the ■ditch or improvement being constructed by the commissioners, necessarily passes into or through the municipality as provided in section 4485. In the case at bar, it appears from the findings of fact as made by the probate court that the ditch petitioned for by Mary E. Faulkner and which the. board of commissioners ordered established “has its source near the center of the corporate limits of the said village of Pleasant Hill, Ohio, and is for the sole purpose of ■draining the lots and lands lying within the said municipality, and that said ditch flows for a long distance within said village, and passes out of said village for a short distance for the purpose of an outlet only. The court further finds that said ditch was. not petitioned for by said village nor its council, nor was the petition therefor filed by the mayor of said village but by the owner of a lot lying and located within said village. The court also finds said ditch does not pass through or into said village in such manner as to deprive the council of said village of the jurisdiction over said drainage ditch. The court also finds that said ditch was petitioned for and granted and ordered by the board of county commissioners against the protest and objection of the council of said village, and its properly elected and qualified and acting mayor.”

We are unanimously of the opinion that upon the-facts so found, the board of commissioners of Miami county, were without authority or jurisdiction to-establish and construct the ditch in controversy, and the probate court and the court of common pleas,, properly so found and adjudged.

The judgment of the circuit court is reversed and' the judgment of the court of common fleas affirmed..

Speak, C. J., Davis, Shauck and Price, JJ., concur..

Summers, J., not sitting.


author: Price, J.

text:
    Hopkins v. Clyde, Admr., et al.

      ■One becoming owner by private or judicial sale — Of realty in trust belonging to heirs at law of mortgagor — May plead statute of limitations, when — Mortgages—Parties—Pleadings.

    One who, hy either private or judicial sale, has become the owner of the interests in real estate belonging to one or more of the heirs at law of a mortgagor, may plead the statute of limitations in bar of an action to foreclose the mortgage on the real estate so acquired, although each and all of such heirs at law are parties to the action, and neglect, or refuse to interpose the plea.
    (No. 8571
    Decided December 6, 1904.)
    Error to the Circuit Court of Miami county.
    The action in the court of common pleas was brought by George M. Clyde, as administrator of the estate of W. J. Clyde, deceased, to foreclose a mortgage on certain real estate in the city of Troy, Miami county, Ohio, executed on the twenty-second day of June, 1885, by George C. Clyde and his wife, to secure the payment to said W. J. Clyde of a promissory note of even date with the mortgage, for the sum of $2,530, due one year from date with eight per cent, interest. This mortgage was left for record and was duly recorded in the records of mortgages for said Miami county. The mortgagor, George C. Clyde, died intestate several years after the maturity of the note, and several years before the action to foreclose was commenced, leaving Helen Clyde, his widow, and N. C. Clyde, Sadie Evans, Kate C. Davis and Elizabeth Lee his heirs at law, who were made defendants in said action, and who are also made defendants in error here, as they were in the circuit court.

      The action in foreclosure was commenced in the court of common pleas on the twentieth day of May, 1902, more than fifteen years after the maturity of the debt secured by the mortgage.
    The prayer of the petition is, “that in default of payment of the amount now due and payable under said mortgage, or that may become due and payable before judgment herein, said mortgage may be foreclosed and said premises sold, free from all claims of the defendants and the proceeds applied to the payment of the debt due plaintiff, and for such other relief as is just and proper in the premises.”
    On July 5,1902, on his application, W. A. Hopkins, now plaintiff in error, was made a party defendant to the action, with leave to plead by the tenth day of July, which he did. The widow and heirs of the mortgagor, George C. Clyde, so far as disclosed by the record, made no defense. The answer and cross-petition of the plaintiff in error alleges in substance that said mortgagor, George C. Clyde, died intestate and seized of the premises covered by the mortgage, leaving the widow and heirs above named to whom his estate descended, and proceeds as follows to plead the statute of limitations against the mortgage:
    “The defendant, The Henry St. Clair Company, on the fourteenth day of February, 1898, recovered a judgment by the consideration of the common pleas court of Miami county, Ohio, against the defendant, Kate C- Davis, in the sum of $304.87 and. costs of suit. Qn the twenty-fifth day of February, 1898, execution was issued upon said judgment and levied upon the defendant, Kate C. Davis’ undivided one-fifth part of said real estate in the petition described. After said judgment became a lien on said real estate, the said Kate C. Davis conveyed her said interest in said real estate to the defendant, Neva O. Coppock. Thereafter the defendant, The Henry St. Clair Company, on the nineteenth day of October, 1901, commenced an action in the common pleas court of Miami county, Ohio, in the nature of a creditor’s bill against the defendants, Kate C. Davis and Neva O. Coppock, to enforce said judgment lien upon said real estate, and marshal liens. Such proceedings were thereafter had in said case that the court ordered said one-fifth part of 'said real estate appraised, advertised and sold, as upon execution, and the same was duly appraised, advertised, and on the twenty-fourth day of May, 1902, sold by the sheriff of Miami county, Ohio, to this defendant for the sum of $405. Said sale was thereafter confirmed by the court and the sheriff of said county was ordered to convey said real estate to this answering defendant, and said sheriff did convey said real estate to this defendant, and he is now the owner and holder of the fee simple legal title to said undivided one-fifth part of said real estate, inherited by the defendant, Kate C. Davis, from her father, George C. Clyde, plaintiff’s mortgagor.
    “The said W. A. Hopkins for further answer says that the note described in the petition and secured by said mortgage herein sued upon was due more than fifteen years before the commencement of this action, and that the said note and said mortgage securing the same are both barred by the statutes of limitation.
    “This answering defendant says further that said mortgage has not been cancelled of record and casts a cloud upon his title to said real estate.
    “Wherefore, the defendant, W. A. Hopkins, prays that he may go hence without day as to the plaintiff’s .action, set forth, in the petition, and that the court on this cross-petition order said mortgage cancelled of record in so far as it affects this defendant’s title to said real estate, and quiet this defendant’s title in .and to said real estate as against said mortgage.”
    To this answer and cross-petition the administrator, plaintiff below, filed a general demurrer, “for the reason that the same does not constitute a defense to the petition of the said plaintiff. ’ ’
    The court of common pleas sustained the demurrer and dismissed the answer and cross-petition. On error to the circuit court this judgment was affirmed. This case is here on error to reverse both judgments.

      Messrs. Gilbert, Shipman £ Campbell, attorneys for plaintiff in error.,

      Mr. Sherman T. McPherson, attorney for defendants in error.
   Price, J.

.It is not seriously questioned that the mortgagor, George C. Clyde, if living, could make the plea of the statutory bar, against both the note and the mortgage securing the same, if more than fifteen y,ears had elapsed between the maturity of the debt and the commencing of the action to foreclose the mortgage.

Nor can it be seriously argued, that the widow and heirs at law of the mortgagor, could not successfully interpose the plea in their behalf against the mortgage, because they are in undoubted privity of estate with the mortgagor, which estate vested in them at his decease. The authorities are unanimous in support of the latter proposition, and while the right to plead the statutory bar to the promissory note is a personal privilege to be exercised by its maker or his legal representative, when the action seeks the sale of real estate which, has vested in the widow and heirs at law, either by will or by descent, they or either of them may make the plea in protection of their estate from foreclosure and sale.

But it is urged in this cáse that the plaintiff in error does not stand in such privity of estate with the mortgagor or his heirs at law, as entitles him to make this defense. What are the facts he alleges ?

On the fourteenth of February, 1898, more than three years prior to the filing of the action to foreclose, The Henry St. Clair Company recovered a judgment in thé court of common pleas of Miami county against Kate C. Davis, one of the heirs of the mortgagor, for $304.87 and costs of suit. On the twenty-fifth of February of same year an execution was issued on this judgment, and it was levied on the undivided one-fifth of the real estate covered by the mortgage, which was the interest of said Kate C. Davis in the premises. After the judgment and levy Mrs. Davis conveyed her interest to Neva O. Cop-pock. In October, 1901, the judgment creditor commenced a suit against Kate C. Davis and her said grantee tc enforce the judgment, and in that suit, an order of sale was issued, and on the twenty-fourth = ■day of May, 1902, the said one-fifth interest formerly owned by Mrs. Davis, was sold by the sheriff to the plaintiff in error, which sale was confirmed by the court, and in pursuance of its order the sheriff executed and delivered to him a deed for said interest in said mortgaged premises.

By virtue of the judgment against Kate C. Davis, the execution, order of sale, the sale by the sheriff, its confirmation, and the deed of the sheriff, the plaintiff in error became seized of all the rights, title and interest which she had theretofore held in the prem-. ises as one of the heirs of the mortgagor, and he became a tenant in common with the other heirs of the mortgagor, entitled as against them to bring and maintain proceedings for the partition of the real estate, and to enforce any and all the rights, and be subject to the liabilities of a tenant in common, which might accrue under his new relation.

It is true, the plaintiff in error did not receive a deed directly from Kate C. Davis, and thus connect himself with the title of the mortgagor, yet he became seized of all her interest just as effectually by the legal proceedings referred to. Our statute so provides in section 5402, Revised Statutes, where it is said: “The deed (sheriff’s) shall be prima facie evidence of the legality and regularity of the sale; and all the estate and interest of the person whose property the officer so professed to sell and convey, whether that interest existed at the time the property became liable to satisfy the judgment,- or was acquired subsequently, shall be thereby vested in the purchaser.”

Both by common law and surely by virtue of this statute, the purchaser at such judicial sale acquires all the right and title of the judgment debtor in the real estate.

Of course such purchase and the deed acquired thereunder do not of themselves free the premises purchased in this case of the prior mortgage lien for what may be due upon the mortgage, but does the purchaser thereby have such relation to the mortgaged estate that he may show in protection of his interest in the premises, that the action to foreclose the mortgage is barred by lapse of time? It is argued by counsel for defendant in error, that the grounds of defense against the mortgage, including the right to plead the statutory bar, which belonged to Kate C. Davis, did not pass by the judicial sale of her interest in the premises, because the title of plaintiff in error is not one in privity with the title of the mortgagor. The first part of the proposition may be true, namely, that the right to plead the statutory bar which she possessed, did not pass as part of the interests acquired at the judicial sale; but it is equally true that her estate which was covered by the mortgage, and which would be taken from the plaintiff in error, did pass to and vest in him at the judicial sale. It is no longer a plea against the personal liability on the note, but a plea against the' enforcement of a mortgage which, but for the justness of the plea, would deprive the purchaser at judicial sale of his property. It therefore, is not so much an inquiry as to whether the judicial sale carried with it the right of Mrs. Davis to plead the statute of limitations, as it is whether he may not assert it in his own right as a purchaser of part of the mortgaged premises.

We think a summary of the authorities on the subject indicates the general rule, that any one in privity with the lien sought to be enforced against the premises, and any one who can be said to stand in the place of the person in whose favor the statute runs, is entitled to plead it.

As said in Corbey et al. v. Rogers, Jr., 152 Ind., 169-171: * ‘ The general rule is that the right to plead the statute of limitations is a personal privilege, but persons standing in the place of the party having the personal privilege, such as grantees, mortgagees, executors, administrators, trustees, heirs, devisees, or other persons holding under him, may set up such defense. ’ ’ The court then cites in support of the rule numerous cases decided in other jurisdictions.

Had Mrs. Davis retained her share of real estate, it is conceded she could have plead the statute in bar of foreclosure. Why? Because she would be holding under the mortgagor and in privity of estate with him. So does her grantee hold under him, and in this sense, the purchaser at judicial sale is her grantee, and stands in her place in the chain of title, and therefore he holds under the mortgagor.

We think it has been well decided in several cases, that the holder of a junior mortgage may plead the statutory bar against the enforcement of a senior mortgage. See 19 Am. & Eng. Ency. Law, 185; Lent v. Shear, 26 Cal., 361-370; Hill v. Hilliard, 103 N. C., 34.

Two sections of the syllabus in the latter case are:

“2. A subsequent mortgagee or purchaser of the equity of redemption has the right to avail himself of the statute of limitations as a defense to the first mortgage, and after the rights of the first mortgagee are barred by the statute, no act or acknowledgment on the part of the mortgagor can revive the mortgage as to subsequent mortgagees or purchasers. ’ ’
“3. A subsequent mortgagee, or purchaser of the equity of redemption, can avail himself of the protection of the statute of limitations against a prior mortgage, although the mortgagor is a party to the action and refuses to plead the statute.”

The opinion in that case cites Jones on Mortgages, sec. 1509; Lent v. Shear, 26 Cal., 361; Medley v. Elliott, 62 Ill., 532; Fox v. Blossom, 17 Blatchf., 352.

If a junior mortgagee may so defend, so may a subsequent purchaser.

In the case at bar, while the death of the mortgagor occurred before the statute had fully run, yet it had run its full course at the date of the order of sale and the sale of the interests of Mrs. Davis in the mortgaged premises. At that time she and the other heirs at law of the mortgagor held but the equity of redemption. The equity of redemption in favor of Mrs. Davis was certainly sold to the plaintiff in error and he acquired it at the judicial sale above referred to. Hence on the ground that he holds the equity of redemption in one-fifth of the incumbered premises, he is entitled to plead the statutory bar for the protection of his title.

The authorities to support the doctrine of this opinion are very numerous, if not unanimous, as witness, Trimble v. Fariss, 78 Ala., 260; McCarthy v. White et al., 21 Cal., 495; Lent v. Shear et al., 26 Cal., 361; Houston et al. v. Workman, 28 Ill. App., 626; Schmucker v. Sibert, 18 Kan., 110.

We quote from the latter case the following:

“Again when the note is barred, the mortgage is also barred, and a grantee of the mortgagor may interpose this defense to an action to foreclose the mortgage whether the mortgagor does or not.
“He may protect the property conveyed to him by a plea of the statute, as to any lien sought to be charged against it. He cannot interpose the plea beyond the extent of his interest, and therefore only to prevent a foreclosure. ’ ’
“In Coster v. Brown, 23 Cal., 142, the court decided, that £a purchaser of an estate subsequent to the mortgage, may intervene and plead the statute, ’ and further ‘when the debt to secure which a mortgage is given is barred by the statute of limitations, the mortgage is also barred, and if an action is brought to foreclose it, one who has purchased or acquired a lien on the property subsequent to the mortgage has a right to intervene in the action and plead the statute of limitations. ”

See also Ewell v. Daggs, 108 U. S., 143-147.

It would seem that reasoning from any view point we may have of the question, 'the answer and cross-petition of plaintiff in error contains a good defense against foreclosure as to his share of the premises, and if true, that he is entitled to have the cloud of the mortgage thereon removed. •

The judgments of the lower courts are reversed and the demurrer to the answer and cross-pétition overruled and the cause is remanded to the common pleas court for further proceedings according to law.

Judgment reversed.

Spear, C. J., Davis, Sháuck and Crew, JJ., concur.

Summers, J., not sitting.