author: Minshaul, C. J.

text:
    The Columbus, Hocking Valley & Toledo Railway Co. v. Gaffney.

      Mutuality in contract — Must he meeting of minds — Whether in express or implied contracts — Performance of services hy one, at time, not intending to receive compensation — Cannot recover on quantum meruit — In claim for services evidence of express contract not required — Implied contract may he evidenced — Master and servant — Contracts’.
    1. The meeting of the minds of parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an Implied one, if, in the latter case, the contract to be proved is an actual one as distinguished from a constructive contract.
    2. Where it is shown, or admitted, that a party performing services, that should have been performed by another, had no intention at the time to claim compensation, and did not expect to receive any from the other, no recovery thereto can be had upon a quantum meruH against the party to whom the work was done.
    B. Where it is averred m a petition that the plaintiff performed services for the defendant “at his instance and request,” the averment may be supported by evidence of the circumstances under which the services were performed tending to show a contract; evidence of an express request is not required.
    (Decided June 25, 1901.)

      Error to the Circuit Court of Fairfield county.

      A. I. Vorys and O. O. Hunter, for plaintiff in error.
    When an express contract is declared on, an implied contract cannot be proved.
    Section 5058, Rev. Stat., provides that “pleadings are the written statements by the parties of the facts constituting their respective claims and defenses; all fictions therein are abolished.”
    4 Enc. PI. and Pr. 927, citing decisions of the highest courts of Connecticut, Georgia, Iowa, Kentucky, Louisiana, Minnesota, Missouri and Texas. A New York decision being the only one holding that a petition on an express contract may be sustained by evidence of an implied one. Pomeroy Code PL, Section 540; 1 Bates’ Pl. & Pr., 123, Bliss Code PL, Section 152.
    The evidence shows neither an express nor an implied agreement.
    Abbott’s Trial Evidence, page 358; Abbott’s Trial Evidence, Sections 360 and 374; 1 Thompson on Trials, Section 1164, etc.; Potts v. Reynolds, 76 N. Y., 167; Bartholomew v. Jackson, 20 Johns., 28; Mumford v. Brown, 6 Cowen, 475; 14 Am. and Eng. Enc. Law, 767, 8 and 770.
    We maintain that to raise a promise by implication—
    First. Gaffney must have intended to charge the company for his services.
    Second. That he expected the company to pay him.
    Third. That he gave' the company to understand, or -under the circumstances it should have understood that he was working with an intention to charge the company for the services rendered to or for the company.

      Where there is an express contract between the parties none can be implied. Creighton v. Toledo, 18 Ohio St., 447.
    The plaintiff below based his action on, an express contract which “is proved by .express words, written or spoken; an implied agreement is, proved by circumstantial evidence showing that the parties intended to contract.” Swan’s Treatise (11 ed.), p. 509; Leake Contr., 11; 1 Bar. & Ad., 415; 1 Aust. Jur., 356; 377. An implied contract cannot arise, as against one benefited by work performed, when such work was done under a special contract with other persons. Walker v. Brown, 20 Ill., 378; Mass. Gen. Hospital v. Fairbanks, 129 Mass., 78.
    If services are rendered without any intention of charging compensation, and are accepted with that understanding, no promise to pay can be implied, and no recovery be had therefor, even though done under an expectation of benefit, but without a promise of one. James v. O’Driscoll, 2 Bay, 101; Hertzog v. Hertzog, 29 Pa. St., 465; Lee v. Lee, 6 G. & J. (Md.), 316; Little v. Dawson, 4 Dall. (Penn.), 111.
    Gaffney was at no time an employe of the railway company. There never was the relationship of servant and master. There was no relationship or contract of any character between them. Railway Co. v. Lee, 37 Ohio St., 479.
    Services rendered for another, however meritorious or beneficial, without the request or privity of such person, cannot be recovered for. Caldwell v. Eneas, 2 Const. Rep., 348; Hart v. Norton, 1 McCord, 22; Pincheon v. Delaney, 2 Yeates, 22; Mumford v. Brown, 6 Cow., 475; Loring v. Bacon, 4 Mass., 575; Doane v. Badger, 12 Mass., 65.
    There must be either a request or a tacit assent thereto under such circumstances as show that the person rendering them expected to have, and that the person for whose benefit they were* rendered expected to pay therefor so much a¡s they were worth. Roberts v. Swift, 1 Yeates (Penn.), 209; Jones v. Juicy, 9 Gratt, (Va.), 708.
    The relationship of master and servant inter se must exist, either by virtue of an express or implied contract, and the person rendering the* service must, for the time being, be subject to the direction of the master. Wood’s Law of'Master and Servant, 63.
    The mere fact that a person renders* service for another without objection, does not amount to an acceptance of his services with a promise to pay therefor. Harnett v. Christopher, 61 Mo. App., 64.
    Services rendered in expectation, but . without promise of benefit, are gratuitous. Taylor v. Taylor, Admr., 1 Lea (Tenn.), 83; Wells v. Caldwell, 9 Hun., 607; Force v. Haines, 2 Harrison, 385; White v. Jones, 14 La. An., 681; Little v. Dawson, 4 U. S. (4 Dall.), 111; Davison v. Davison, 2 Beas., 246; Bishop on Contracts, Section 76; Harris v. Currier, 44 Vt., 468; Hays v. McConnell, 42 Ind., 285; Woods, Master and Servant, Section 65. No man can make another a debtor against his will.
    The equitable doctrine that one at whose expense another is benefited must be indemnified, only applies when the legal obligation is imposed either by statute or by the assent of the person benefited. Woods’ Master and Servant, Section 67; Fox v. Sloo, 10 La. Ann., 11; Jenkins v. Gibson, 3 La. Ann., 203; Levee Commissioners v. Harris, 20 La. Ann., 201.
    A private citizen cannot maintain an action for labor done in repairing a public road without the direction or request of the public officers having charge of the same, although such services were both beneficial and necessary. Anderson v. Hamilton Township, 25 Pa. St., 75.
    Gaffney had no contractual relation with the railway company. His obligations were to the government. The railway company had no knowledge that he was doing work for which it was paying employes to do. Hiemenz v. Goerger, 51 Mo. App., 586, Holmes v. Board of Trade, 81 Mo., 137.
    Implied contracts arise under circumstances which, according to the* ordinary course of dealing and the common understanding of men, show mutual intention to contract. 29 Pa. St., 465; Morris v. Barns, 35 Mo., 412.
    Before one act can be accepted as the ratification and confirmation of another, the party acting must have some knowledge or Information, at least, of its existence. Risley v. Railway Co., 1 Hun., 207; Brass v. Worth, 40 Barb., 648; Hays v. Stone, 7 Hill., 128, 131, 132; Keeler v. Salisbury, 33 N. Y., 648; Smith v. Tracy, 36 N. Y., 79; Potter v. Carpenter, 76 N. Y., 157; Osier v. Hobbs, 33 Ark., 215.
    Gaffney having performed the services, believing them to be a part of his contractual duty to the government, or gratuitously to the railway company, cannot now refund his gratitude and collect therefor. Orphan Asylum v. Wolfert, 80 Ky., 86; Davis v. School District No. 2, 24 Me., 349; Railway Co. v. Lee, 37 Ohio St., 479.
    We contend that Gaffney could not recover for additional work he chose to do for the government without consulting with it, and much less of the railway company with which he had no relationship. Hart v. Norton, 1 McCord (S. Car.), 22.
    A party is only entitled to wages when he has stipulated for them, or when, by implication, the person who received the services promised to pay for them. Jacob v. Ursuline Nuns, 5 D., 730.
    The contract must be definite and certain. The evidence is conclusive that neither Gaffney nor the railway company had any intention or knowledge on the subject. Parsons v. Trask, 66 D., 502; Bishop on Contracts, Sec. 76; Resor v. Johnson, 1 Ind., 100; Adams v. Adams, Admr., 23 Ind., 50; Candor’s Appeal, 5 Watts and S., 513; Guild v. Guild, 15 Pick., 129; Andrus v. Foster, 17 Vt., 556.
    The law will not imply'a promise on the part of the railway company to pay Gaffney the value of his services upon a quantum meruit. Rees v. Lines, 8 C. & P., 126; Selway v. Fogg, 5 M. & W., 83; Smith v. Smith, 1 Sandf., 206; Gibson v. Zanesville, 31 Ohio St., 184; Story on Contracts (5 ed.), Sec. 18; Abbott v. Inskip, 29 Ohio St., 59.
    An implied contract is one which reason and justice dictate and which the law presumes, therefore, that every man undertakes to perform. Sceva v. True, 53 N. H., 627; Harris v. Story, 2 E. D. Smith, 364; Lynch v. Onondaga Salt Co., 64 Barb., 558; Vandekarr v. Vandekarr, 11 Johns., 122; Walker v. Brown, 28 Ill., 378; Creighton v. Toledo, 18 Ohio St., 447.

      M. A. Daugherty and J. M. Shallenberger, for defendant in error.
    We submit that "acceptance and benefits of the service will support the allegation that services, were performed at the “instance and request” of defendant. 1 Bates’ Pleadings, 380, See. 12; Musser v. Chase, 29 Ohio St., 577. A request may be implied. 1 Parson on Contracts, 446 and 447; 1 Abbott’s Trial Evidence, 358.
    The allegations in the petition upon an implied assumpsit that defendant “promised to pay as much as plaintiff reasonably merited or deserved,” is supported by the following authorities: Philips on PL, 377, Sec. 377; Beach on Contracts, p. 774, Sec. 641. The court’s attention is called to the whole of foot note “4” under this section. Bliss on Code Pl., pp. 128, 152 and 153; 19 Am. & Eng. Enc. Law, 593; Sussdorff v. Schmidt, 55 N. Y., 319; Keener on Quasi Contracts, p. 14; Second Blackstone (Book 3), p. 131; Forey v. Western Stage Co., 19 Iowa, p. 535; 11 U. S. Digest, 177, Sec. 3532-33.
    If services are rendered for another and are intended to be gratuitous, then, perhaps, in such case, no compensation can be recovered for the same.
    But the mere allegation of defendant “that the plaintiff had no purpose or intention or expectation to charge defendant for said services” would not be a legal defense. He must, to avail himself of this defense, go further and allege that “the defendant intended the work to be merely gratuitous.”
    The facts here show an absence of intention, owing to the circumstances under which plaintiff performed the labor.
    While it is perhaps unnecessary to direct the court’s attention to the question of principal and agent, in the case at bar, yet we would respectfully call its attention to the following authorities: Mechem on Agency, Secs. 718 and 719. Philips on Pleadings, Sec. 378. .
    Swan’s Treatise, p. 509; 2 Blackstone (Book 3), 129, 131; 1 Blackstone (Book 2), 443, side paging; Walker’s Am. Law, 467-468; Harrison v. Gotleib, 2 Circ. Dec., 109; 3 C. C., 191; Wald Pollock on Contr., 11. Especial attention is called to the last mentioned authority. Beach, Modern Law of Contracts, 785, Section 650; Linn v. Linderoth (1890), 40 Ill. App., 320; Chamness v. Cox (1891), 21 Ind. App., 485; Ford v. Ward, 26 Ark. App., 360; Perry v. Bailey, 12 Kas., 539; Moreland Twp. v. Davidson Twp., 71 Pa., 371; Cincinnati, etc., R. Co. v. Bensley, 51 Fed. Rep., 738; DeWolf v. Chicago, 26 Ill., 444; Sheldon v. Johnson, 40 Iowa, 84; Laude v. Seymore, 24 Wend., 60; Lockwood v. Robins, 125 Ind., 398; Nimmo v. Walker, 14 La. Ann., 581; Allen’s Admr. v. Richmond College, 41 Mo., 302; In re Cooper (1894), 6 Miss. (N. Y.), 501, 27 N. Y. Supl., 425.
    Although a request to do certain work may not have been satisfactorily proved ^gainst a corporation sued upon a quantum meruit, Yet if the plaintiff in good faith and with full knowledge on the part of the defendant did the work and The defendant availed itself of the fruits of plaintiff’s labor it is liable to the extent of the benefit received. Thomas v. Land & Coal Co., 43 Mo. App., 653.
    On the general proposition of the right of plaintiff below to recover, we also cite: Cunningham’s Decision on Evidence, 219; 1 Parson on Contr., 446, 447; Lovet v. Price, Wright, 89; Willis v. Dun, Ib., 133; Lawson v. Perry, Ib., 242; Bagley v. Bates, Ib., 705; Towsley v. Moore, 30 Ohio St., 184; Anderson’s Law Dictionary, 248; Bailey v. Rutjes, 86 N. Car., 517.
    In the case at bar the evidence shows that plaintiff and defendant each had a contract with the United States to do certain work for it, and Gaffney, whose business had been that of running an express wagon on the street, doing hauling of different kinds, and naturally being a man rather dull in business matters was misled to do a portion of the work of the plaintiff in error. The railway company did practice this imposition upon Mr. Gaffney for nearly seven years, and he was none the wiser until he was informed of it by a government officer. Boadman v. Ward, 40 Minn., 399. “It is a rule of law that he who remains silent when be ought to speak cannot speak when he should remain silent.” Plaintiff in error*was silent as the dead when Gaffney was performing these services, and is foreclosed from successfully resisting his claim now.
   Minshaul, C. J.

The real question in the case, and the only one we shall consider, aside from one of pleading and evidence, is whether on the admitted facts the plaintiff below, Gaffney, was entitled to recover of the defendant on an implied contract, the value of the services for which he claims compensation. The plaintiff had a contract with the general government by which, for a compensation, he was bound to carry the mails to and from the depot of the Columbus, Hocking Valley & Toledo Railway Company to the postoffice at Lancaster, Ohio, and also to and from the Cincinnati & Muskingum Valley Railway Company at the same place. These two roads at this point form a junction, the roads running on.opposite sides of a common depot, within forty feet of each other. Each of these roads had a contract with the government for carrying mails over its road, by which each was required to transfer the mails over its road, to that of the other when required in the course of transit, as the distance between them was less than eighty rods, the contract with the government imposing that duty on each when the distance between them is no greater. During the entire period for which compensation was claimed this work had been performed by the plaintiff — a period of over six years — part of the time under a contract of the government with one Turner, of which the plaintiff was the assignee, and the residue of the time under a contract with himself, the terms of both contracts being alike. The plaintiff during the entire time supposed that it was his duty under his contract with the goverament in regard to carrying the mails between tbe depot and the postoffice, to make tbis transfer between tbe two roads, and performed tbe service under tbis impression, until be was informed by an agent of tbe government that it was not bis duty and was ordered to desist from doing so. No demand for compensation was made until be bad received tbis order from tbe government agent, and be at no time supposed that be was entitled to any until tbis time; nor was there any express request on tbe part of tbe company or its agents, for tbe performance óf tbe service, the company having agents of its own at the depot who should have performed tbe service. It also appears that at' tbe time Turner assigned bis contract to tbe plaintiff be informed him that tbis service was a part of bis duty under the contract with tbe government. On this state of facts, it is claimed that a contract should be implied on the part of tbe defendant to pay tbe plaintiff what bis services were reasonably worth in so transferring tbe mails for the defendant at tbe depot. Tbe common pleas rendered a judgment in his favor for $603.58, being for a period of-some six years, and tbe judgment was affirmed on error by tbe circuit court.

There is some confusion in tbe statement of the law applicable to what are frequently called implied contracts, arising from tbe fact that obligations generically different have been classed as such, not because of any real analogy, but because where tbe procedure of tbe common law prevails, by tbe adoption of a fiction in pleading — that of a promise where none in fact exists or can in reason be supposed to exist — the favorite remedy of implied assumpsit could be adopted. This was so in that large class of cases, where suit is brought to recover money paid by mistake or has been obtained by fraud. Here it is said the law implies a promise to repay the money, when it was well understood that the promise was a mere fiction, and in most cases without any foundation whatever in fact. The same practice was adopted where necessaries had been furnished an insane person or a neglected wife or child. In all these cases no true contract exists. They are, by many authors, termed quasi contracts, a term borrowed from the civil law. In all these cases no more is meant than that the law imposes a civil obligation on the defendant to restore money so obtained, or to compensate one who has furnished necessaries to his wife or child, where he has neglected his duty to provide for them, or, by reason of mental infirmity, is unable to obtain them for himself. But contracts that are true contracts are frequently termed implied contracts, as, where from the facts and circumstances, a court or jury may fairly infer, as a matter of fact, that a contract existed between the parties, explanatory of the relation existing between them. Such implied contracts are not generically different from express contracts; the difference exists simply in the mode of proof. Express contracts are proved by showing that the terms were expressly agreed on by the parties, whilst in the other ease the terms are inferred as a Matter of fact from the evidence offered of the circumstances surrounding the parties, making it reasonable that a contract existed between them by tacit understanding. In such cases no fictions are, or can be, indulged. The evidence must satisfy the court and jury, that the- parties understood that each sustained to the other a contractual relation; and that' by reason of this relation the defendant is indebted to the plaintiff for services performed or for goods sold and delivered.

In the leading case of Hertzog v. Hertzog, 29 Pa. St., 465, the distinction is clearly stated by Judge Lowrie. After quoting from Blackstone, and observing that bis language is open to criticism, be says: “There is some looseness of thought in supposing that reason and justice ever dictate any contracts between parties, or impose such upon them. All true contracts grow out of tbe intentions of parties to transactions, and are dictated only by their mutual and accordant wills. When tbe intention is expressed, we call tbe contract an express one. When it is not expressed, it may be inferred, implied, or presumed, from circumstances really existing, and then tbe contract, thus ascertained, is called an implied one.” * * * “it is quite apparent, therefore, that radically different relations are classified under tbe same term, and this often gives rise to indistinctness of tbougbt. And this was not at all necessary; for we have another well-authorized technical term exactly adapted to tbe office of making the true distinction. Tbe latter class are merely constructive contracts, while tbe former are only implied ones. In one case tbe contract is a mere fiction, a form imposed in order to adapt tbe case to a given remedy; in tbe other it is a fact legitimately inferred. In one tbe intention is disregarded; in tbe other, it is ascertained and enforced. In one, tbe duty defines tbe contract; in tbe other, the contract defines tbe duty.” Tbe subject is instructively treated by Prof. Keener in chapter 1 of bis work on Qttasi-Contracts. He expresses the difference between an express contract and a true implied contract as follows: “In tbe one case tbe language of contract is in terms used, and because of tbe expressions used, tbe contract is called an express contract; whereas in the other case tbe contract is established by tbe conduct of tbe parties, viewed in tbe light of surrounding circumstances, and is called a contract implied in fact.”

The language quoted by counsel for defendant in error from Swan’s Treatise, 509, that • "an implied contract is established by proof of circumstances, showing either that in. justice or honesty a contract ought to he implied, or that the parties intended to contract,” is doubtless due to "the looseness of thought” on the subject, to which the learned judge above refers. The language is quite appropriate to quasi, or constructive, contracts, frequently classed with implied proper contracts, but wholly inapplicable to true contracts. Swan evidently followed the language of Blackstone, that has frequently been criticised.

The rule of evidence applicable to the proof of an implied contract is accurately stated in Abbott’s Trial Evidence, 858, as follows: “In general there must be evidence that defendant requested plaintiff to render the service or assented to receiving their benefit under circumstances' negativing any presumption that they would be gratuitous. The evidence usually consists in, first, an express request pertaining to the services, or second, circumstances justifying the inference that plaintiff, in rendering the services expected to be paid, and defendants supposed or had reason to suppose and ought to have supposed that he was expecting pay, and still allowed him to go on in the service without, doing anything to disabuse him of this expectation; or third, proof of benefit received, not on an agreement that it was gratuitous and followed by an express promise to pay.”

It seems then clear that no contract can be inferred from the facts in this case; for it does not appear from anything in the case, that the plaintiff performed the services for which he sues under a contract with the defendant, whereby it was agreed between them that he should be compensated for his services by tb'e defendant in any sum. There could have been no meeting of minds on any of its terms, and without which no contract can exist, whether express or implied. During all this time, some six years, in which he was engaged in doing the work, the plaintiff supposed that it was his duty to do it, under his contract with the government. He did not, therefore, during the time, regard himsélf as performing any services for the defendant, and made no claim against it for compensation, until after he had been informed that it was not his duty to do what he had been voluntarily doing. This fact negatives the existence of any contract express or implied having existed between the parties during the time' the services were being performed. The minds of the parties could not have met on the subject of compensation, when the party doing the work had no idea that he was to be compensated by the defendant at the time the work was done. Under such circumstances the understanding of the party for whom the work was done, becomes immaterial, unless it had been so communicated to the other party as to have induced the performance of the services, which was not the case, if it had any such understanding. But there is nothing in the case to show any such understanding on the part of the companv. It is true that under its contract with the government it appears, that the transfer of mails from its road to the other, was one of its obligations, and the plaintiff in attending to the matter performed a service, that it, through its agents, should have performed. But no request of the company is here shown by implication; since the company had agents of its own at the depot, and the plaintiff in doing what he did, performed services that should have been attended to by the employes of the company. And had any claim been made by the plaintiff for compensation, or had the circumstances indicated that he would make such claim, doubtless the company would have directed its own agents to attend to the business. This shows that there was nothing in the conduct of the plaintiff that indicated a purpose on his part to make a claim for compensation at the time the work was performed, and that the company did not regard itself as receiving services from him for which it was to make compensation. In no view of the case then, can the suit of the plaintiff be maintained against the company on the ground of an implied contract to pay what the services were reasonably worth.

Though not necessary to the disposition of the case, it may be proper to notice the exception of the defendant to the admission of the evidence offered under the averments of the petition; the claim being that the petition purports to be upon an express contract whilst the evidence offered simply tended to support an implied one. We do not think there was error in this regard. The substance of the averments of the petition is, that for a period of over six years, the plaintiff had been employed by the defendant, “at its instance and request” to transfer mails from its trains to the trains of the Cincinnati & Muskingum Valley Railroad Company, at Lancaster, Ohio. There is, as we have shown, no generic difference between an express contract and one implied from circumstances. The plaintiff was not required to state the character of the evidence on which he would rely to support the averment, that the services were rendered under a contract with the defendant. It was therefore competent for him to offer the circumstances under which he did the work, in support of his averment that it was done “at the instance and request” of the defendant. The evidence was competent, but failed in proof.

Judgment reversed; and judgment for defendant.

Burket, Spear, Davis and'SHAUCK, JJ., concur.


source: Caselaw Access Project

author: Shaitce:, J. Davis, J.,

license: Public Domain

text:
    Ohio Farmers’ Insurance Co. v. Burget.

      Word “void" construed in fire insurance policy — Prohibition in policy of removal of chattels insured — Without “consent in writing," etc. — Chattels removed without insurer’s consent and then removed to third 'location with consent — First removal held not to invalidate policy.

    1 The stipulation in a policy of fire insurance that “this policy shall, become void, 'unless consent in writing is endorsed by the company hereon if any change takes place in the location of the property,” may become the subject of construction because of the variety of' senses .in which the word “void”'is used.
    2. The terms of such stipulation should be construed with reference to its purpose, and, thus construed, it does not exempt the insurer from liability because of a change in the location of insured chattels without its consent if the hazards of such location are not operative at the time of the loss. 1
    3, The insured may recover upon a policy containing that stipulation for the loss of chattels destroyed at a location to which they were removed with the insurer’s consent, notwithstanding their previous removal to another location without such consent.
    (Decided. October 22, 1901.)
    Error to the Circuit Court of Cuyahoga county.
    Mias Burget brought an action in the court of common pleas to recover of the insurance company upon its policy the value of chattels which had been destroyed by fire during the life.of the policy. By appropriate exceptions to the instructions given to the jury upon the trial the insurer presented as a question of law its liability upon the following state of facts: On the 22nd day of November, 1895, the company executed to Miss Burget its policy on the chattels destroyed, insuring them for three jears. At the time of the insurance the chattels were located at a residence, No. 863 Prospect street in Cleveland. The policy contains the following stipulation: “This policy shall become void, unless consent in writing is endorsed by the company hereon in each of the following instances, viz.: * * * If any change takes place in the location of the property.” About the first of February, 1896, Miss Burget removed from Prospect street to Huron street in Cleveland, taking the insured property-with her. The company had no knowledge of this removal and of course did not consent thereto. On the 3d day of February, 1896, she removed to a residence on Winchester avenue in Cleveland, taking the property with her. The property was there destroyed by fire on the following day. On the 3d day of February she obtained the consent of the company to the removal of the property to the residence on Winchester avenue where it was destroyed.
    Under the instructions given a verdict was returned for the plaintiff and a judgment following the verdict was affirmed by the circuit court.

      Lee Elliott and Hile & Horner, for plaintiff in error, cited the following authorities:
    Joyce on Insurance, 1742; May on Insurance, 401a; Joyce on Insurance, 1397; Colby v. Insurance Co., 66 Iowa, 577; Secs. 3664 and 3665, Revised Statutes; Insurance Co. v. Coos Co., 151 U. S., 452; Pence v. Langdon, 99 U. S., 578; May on Insurance, 506.

      Hart, Canfield <6 Callaghan, for defendant in error, cited tlie following authorities:
    2 Am. & Eng. Ency. Law, 131; Insurance Co. v. Wilkinson, 80 U. S. (13 Wall.), 222; 67 Cal. 36; Walsh v. Insurance Co., 30 Iowa, 132; 27 Wis., 693; Viele v. Insurance Co., 26 Iowa, 9; Haight v. Insurance Co., 92 N. Y., 51; Little v. Insurance Co., 38 Ohio St., 110; Dillebar v. Insurance Co., 76 N. Y., 567; 7 R. I., 502; Behler v. Insurance Co., 68 Ind., 347; 109 Pa. St., 325; Susquehanna Depot v. Simmons, 112 Pa. St., 384; Insurance Co. v. Boyle, 21 Ohio St., 119; Insurance Co. v. Parisot, 35 Ohio St., 35; Howe Mach. Co. v. Woolly, 50 Iowa, 549; Brink v. Insurance Co., 70 N. Y., 593; 34 Wis., 364; 40 Conn., 56; 83 Ill., 453; 88 Pa. St., 230; Insurance Co. v. Burget, 9 Circ. Dec., 369 (17 R., 619).

      Dyer, Williams & Stouffer, of counsel for defendant in error, cited the following authorities:

      Bennett v. Insurance C., 14 Blatch., 422; Insurance Co. v. Adler, 71 Ala., 516; Insurance Co. v. Boyle, 21 Ohio St., 119; Insurance Co. v. Parisot, 35 Ohio St., 35; Post v. Insurance Co., 43 Barb., 351; Phillips v. Insurance Co., 14 Mo., 220; Owen v. Insurance Co., 57 Barb., 518; Beatty v. Insurance Co., 16 P. F. Smith, 9; 4 Joyce on Insurance, Sec. 3784; Insurance Co. v. Peterson, 66 N. W. Rep., 847; Redman v. Insurance Co., 49 Wis., 431; Gould on Pleading, Chap. 4, Sec. 13; Jacob’s Law Dic., Title of Condition, 440; Mueller v. Insurance Co., 45 Mo., 84; Coburn v. Insurance Co., 145 Mass., 226; 11 Ency. Pl. & Pr., 421, 422; Assurance Co. v. Cooper, 6 Col. App., 25; Insurance Co. v. Hannawold, 37 Mich., 106; Insurance Co. v. Lewis, 18 Ill., 553; Viele v. Insurance Co., 26 Iowa, 9; Williams v. Bank, 27 U. S. (2 Pet.), 102; 41 U. S. (16 Pet.), 509; 2 Joyce on Insurance, Sec. 1747; Hinckley v. Insurance Co., 140 Mass., 38; 1 Phil. Ins., Sec. 575; Worthington v. Bearse, 12 Allen, 382; Phillips on Insurance, Sec. 975; Lane v. Insurance Co., 12 Me., 44; Powers v. Insurance Co., 19 La. (O. S.), 28; 10 La. (N. S.), 23; Overmeyer v. Insurance Co., 43 Mo., 573; Schmitt v. Insurance Co., 41 Ill., 296; Insurance Co. v. McDowell, 50 Ill., 120; Cong. Church v. Insurance Co., 158 Mass., 475; 3 Joyce on Insurance, Sec. 2239.
   Shaitce:, J.

The sound propositions advanced by counsel for the insurance company must be unavailing if the following is unsound: The removal of the property insured from Prospect street to Huron street without the consent of the company rendered the policy wholly void for its entire term, and incapable of further operation except by the subsequent consent of the company with knowledge of that removal. The scope and materiality of this proposition appear from the considerations that the chattels were not destroyed at the residence on Huron street to which they were removed without the company’s consent, but later at the residence on Winchester avenue to which they were removed with its consent; and that when it gave such consent it had no knowledge of the previous removal to Huron street.

A change in the location of insured chattels may increase the hazard or it may diminish it, but the insurer is not required to leave the question of increased hazard to be tried as a matter of defense after a loss. It may by the stipulations of its contract reserve the right to decide that question for itself and to decide it conclusively. That right was exercised by the insurer in this case by the stipulation that the policy should become void if, without its consent, there should be a change in the location of the property. The stipulation is conclusive, but the duration of the avoidance of the policy for which it provides is to be determined by the intention of the parties, as that is evinced by the subject and terms of the contract. A like conclusive character attaches to other stipulations of insurance policies by which the insurer secures exemption from liability. The condition that the policy shall be void if the house which is the subject of insurance should “be vacated or left unoccupied” when broken, was held to be determinative of the rights of the parties and to exempt the insurer from liability, the loss occurring during vacancy. Insurance Co. v. Wells, 42 Ohio St., 519. The same view has been taken of stipulations against liability in cases of the alienation of the title of the insured, of other insurance, of forbidden liens, of increased hazard from repairs, .of the insured property being used in violation of law, of a ship navigating forbidden waters, of the use of the property for more hazardous purposes, of lighting with'gasoline and other like conditions. With respect to all of the conditions enumerated it has been considerately held that the avoidance intended by the stipulation is during, and only during, the existence of the forbidden hazard. The U. S. Fire & Marine Ins. Co. of Baltimore v. Kimberly, 34 Md., 224; Insurance Co. of DesMoines v. Schreck, 27 Neb., 527; Mutual Fire Insurance Co. v. Coatesville Shoe Factory, 80 Pa. St., 407; Obermeyer v. Globe Mutual Insurance Co., 43 Mo., 573; Hinckley v. Germania Fire Insurance Co., 140 Mass., 38; Worthington v. Bearse et al., 12 Allen, 382; Lane v. Maine Mutual Fire Ins. Co., 12 Me., 44. There are numerous other decisions of like import, but these are sufficient for present purposes..

Tlie cases upon tljie subject have been collected by Mr. Joyce in a note to section 2239 of his work on insurance. Some of them are plainly irreconcilable with the view above stated. They are entitled to the most respectful consideration because they are supposed to pay the greatest possible deference to the terms of the contract into which the parties have entered, and to administer merited rebuke to those who would adjudicate with respect to these contracts otherwise than in accordance with the rules generally recognized. They proceed upon the view that to give full effect to the terms used by the parties they must be deemed to have intended that upon any breach of ihe stipulation against an extra hazard, unless the breach is merely temporary, the contract is terminated, and that it cannot again be put into operation except by some act of the insurer which amounts to a waiver of the defense which was made available by the breach. These cases take no- note of the necessity for the construction of such stipulations in view of the variety of senses in which the word void is used. They do, however, by the clearest implication admit that the word is not, in such connections, used in its extreme sense; for, if it were so used, the liability of the insurer could not, after the breach, be revived by mere waiver. The necessity for construction is also impliedly admitted in the attempted distinction between such forbidden hazards as are temporary merely and those which are permanent. For that distinction the terms of the contract afford no basis whatever. If the distinction is made, it must be deduced by construction which applies the terms of the contract to its subject; and, having regard to the reasonableness of conclusions, every hazard is temporary which is not operative when a loss occurs. Any other distinction between temporary and permanent hazards must be arbitrary and quite apart from any supposed intention of the contracting parties.

In this portion of the policy the parties stipulated for the immunity of the insurer from liability on account of losses which might occur during its life. The sole purpose of the stipulation under consideration was to exempt it from liability for a loss which might occur from hazards which it did not have an opportunity to estimate for itself and which it did not contemplate; that is, from hazards not existing at the place where the chattels were when insured or at another to which they might be removed with its consent. The consent of the insurer to the removal of these chattels to the residence on Winchester avenue where they -were destroyed was its election to accept the hazards of that location in lieu of those of their location when the policy was written. The hazards of the location in which the chattels were destroyed were in nowise augmented by the previous removal to Huron street without the consent of the company.

Judgment affirmed.

Jíinsiiall, O. J.; Williams, Bijrkbt and Spkak, J J., concur.

Davis, J.,

dissenting. I cannot accept the postulate of the majority that the “avoidance intended by the stipulations is only during the existence of the forbidden hazard.” That it may be so in some cases I do not deny; but in a case so plainly stipulated for by the "parties such, a qualification cannot be read into the contract. Upon a change of location of the insured property, it is stipulated not that the policy shall become void at the election of the insurer, but that it shall become void. That means that upon the violation of the contract by the insured the policy eo instante becomes absolutely void. Such was the judgment of this court upon a similar policy. Insurance Co. v. Wells, 42 Ohio St., 519. In this case Judge Mcllvaine says: “The cases relied upon as authority to the contrary by the defendant in error involved the construction of contracts materially different from this one. Here no construction or interpretation is needed; the plain and unequivocal terms of the contract must be enforced.” To the same effect are numerous decisions elsewhere, of which Insurance Co. v. Coos Co., 151 U. S. Rep., 452, 464, is a representative case. On the same day on which the decision was announced, this court also held, construing a clause of a condition in a policy identical with the one now under discussion, that a breach of that condition rendered the policy void, not voidable, that is to say, it was held that a transfer of the property avoided the policy. Ohio Farmers’ Insurance Co. v. Waters, 65 Ohio St., 157. The language of this agreement is that the transfer, or the change of location, etc., of the property shall render the policy void.

This being so, the policy became void on the removal of the property from Prospect street to Huron street, without the knowledge or consent of the insurer; and it is settled law that “if the policy has become forfeited or void for any cause, it cannot be renewed or 'revived except there is a waiver or estoppel arising from the acts or statements of the company or its authorized agent; or unless there is an express agreement to revive.” Joyce on Insurance, sec. 1467.

It does not appear from the record in this case that at .the time the insured property was removed from Prosriert street to Huron street the insurer intended to move to Winchester street, nor that the repose at Huron street was merely temporary; and it is conceded that if a loss had occurred while the property was at Huron street the insurance company would not have been liable. If the theory of the law which I have presented is correct, the policy was at that time void, not merely voidable. But it does appear that the insured knew of this provision of he contract making the policy void, because she applied for the company’s consent to the removal to Winchester street and concealed the fact that she had already removed the goods from Prospect street to Huron street, which would avoid the policy. At all events, there is an utter failure to show any waiver of its rights by the company, with knowledge of the facts, much less an agreement to revive the policy. I therefore am of the opinion that the judgment of the circuit court should be reversed.


author: Davis, J.

text:
    In re Julian S. Rauh. In re Thomas Miller. In re Herman Holjes.

      Deposition taken under Section 5265, Revised Statutes — Subpoena may include directions to witness to bring documents as evidence — Notary public may punish witness for contempt in disobeying such directions.

    1. A deposition may be taken at any time after service of summons upon the defendant in the action, but it can be used on the trial only in the cases prescribed in Revised Statutes, Section 5265; and the deposition of any witness, whether a party to the action or not, may be So taken.
    2. A subpoena issued by a notary public for a witness to attend and testify in a deposition before the notary public may contain a clause directing the witness to bring with him any book, writing or other thing under his control, which he may be compelled to produce as evidence, and for disobedience of such a subpoena the notary public has power to punish the witness for contempt, by imprisonment.
    (Decided October 22, 1901.)
    Error to the Circuit Court of Hamilton county.
    Habeas Corpus.
    An action ivas commenced in the superior court of Cincinnati by the German Dry Goods Company against Thomas Miller. The plaintiff, after service of summons, gave notice to take the depositions of the defendant Miller, of his confidential bookkeeper, Holjes, and of Rauh, a merchant with whom Miller had dealings, which depositions were to be taken before George D. Huston, a notary public in said county. Rauh was served with a subpoena duces tecum, issued by said notary, to produce the books of his business house showing the transactions with the defendant Miller, which he refused to do. Miller and Holjes, on the advice of counsel, refused to be sworn, Miller alleging the excuse that an adverse party could not be compelled to testify as an ordinary witness in advance of the trial, and Holjes that an ordinary witness could not be compelled to give his deposition unless some of the conditions prescribed in Revised Statutes, Sec. 5265, existed. Each of these witnesses was by the notary committed for contempt, and a writ of habeas corpus was issued in each case from the court of common pleas of Hamilton county. On the hearing the court of common pleas refused to discharge the prisoners and this judgment in each case, was afterwards affirmed by the circuit court. These proceedings in error are prosecuted by Rauh, Miller and Holjes respectively to reverse the said judgments of the circuit court.

      Charles W. Baker, attorney for petitioner in error.
    Section 5266, Rev. Stat. provides that —“Either party may commence taking testimony by deposition at any time after service upon the defendant.”
    Section 5265, Rev. Stat., provides that depositions may be used, when a witness does not reside in, or is absent from the county, when he is unable to attend court, when his testimony is required upon a motion, or where his oral testimony is .not required. Section 5281, Rev. Stat., provides that when a deposition is offered it must appear to the satisfaction of the court that for any of the causes specified above, the attendance of the witness cannot be procured, in order that said deposition may be used as evidence.
    If, then, a deposition could not be used, its taking would certainly be nothing less than an excursion for evidence, and not done in good faith. Pfirman, In

      re., 1 Dec., 177; 1 N. P., 127; Thomas v. Beebe, 8 Dec., 231; 5 N. P., 32; Humphrey, In re, 7 Circ. Dec., 603; 14 C. C., 517; Langford, Ex parte, 9 Dec. (Re.) 597; 45 Bull., 267; Davis, In re, 38 Kans., 408 (16 Pac. Rep., 790); Cubberly, In re., 39 Kans., 291 (18 Pac. Rep., 173); Tyson v. Savings & Loan Ass’n (57 S. W. Rep., 740), 156 Mo., 588.
    It is submitted that a notary public has no power to compel, by subpoena duces tecum, the production of the books of account and papers of either a party'to a suit or a disinterested witness, for the purpose of examination or of taking copies.
    Section 5247, Rev. Stat., states what a subpoena may contain, when issued by a court. Section 5248 provides for. a subpoena by a notary or officer taking depositions, but not that a duces tecum clause may be added. Section 6537 authorizes subpoenas to be issued by justices of the peace, but not for the production of books and papers. Section 5290 provides that either party to the suit or his attorney may, in writing, demand an inspection and copy of books, papers or other documents in his possession relating to the merits of the controversy; and Sec. 5289, Rev. Stat., provides that a party may be compelled to produce boobs and writings on motion; but nowhere is it provided that such a demand may be made of a disinterested party or a party to a suit, except when called 'as a witness at the trial of the cause. Sims, In re, 4 Dec. (Re.), 473; 4 Bull., 457; 2 Clev. Rep., 210.

      Kramer x& Kramer, for respondent in error.
    These cases, present three distinct questions, viz. :
    ■ (1) Can a party to a suit compel an ordinary witness to give his deposition before a notary in advance of the trial when the same is taken in good faith and the examination is relevant, material and competent? (In re Holjes.)

    (2) Can a party compel the adverse party to give his deposition under like circumstances? (In re Miller.)
    (3) Has a notary the power to issue and compel obedience to the subpoena duces tecum against an ordinary witness under like circumstances? (In re Rauh.)

    The determination of these questions depends upon the.construction of various sections of our statutes.
    Section 118, Revised Statutes, authorizes a notary to administer oaths and to take and certify depositions. Section 119, Revised Statutes, provides that in taking depositions he shall have the same power to compel the attendance of witnesses, and to punish them for refusing to testify, which is in law vested in justices of the peace.
    Section 5261, Revised Statutes, confers the right to take depositions, and provides that the testimony of witnesses may be taken by affidavit, by deposition or by oral examination.
    Section 5266, Revised Statutes, provides that— “Either party may commence taking testimony by deposition at any time after service upon the defendant.”
    Section 5265 provides that “The deposition of a witness may be used only in the following cases:
    “1. When the witness does not reside in, or is absent from, the county where the action or proceeding is pending, or by change of venue, is sent for trial.
    “2. When the witness is dead, or, from age, infirmity, or imprisonment, is unable to attend court.
    “3. When the testimony is required upon a motion, or where the oral examination of the witness is not required.”

      It is important to note the sharp distinction made in the latter two sections. The right to take a deposition is provided by Sec. 5266, Revised Statutes, while the right to use a deposition, after it is taken, is restricted by Sec. 5265, Revised Statutes. We contend that Secs. 5261 and 5266, Revised Statutes, .confer the unrestricted right to parties to take depositions, that they may thus protect themselves against the contingencies mentioned in Sec. 5265, Revised Statutes. It is argued by adverse counsel that Sec-5265, Revised Statutes, must be read into Sec. 5266; that in spite of the fact that Sec. 5266 gives, in unequivocal terms, the unrestricted right to take depositions any time after service of summons upon the defendant, that the right to take does not arise until it is probable that one of the contingencies provided for in Sec. 5265 may arise. We claim that such a construction of a statute which is plain in terms is unsound, and would amount to judicial legislation.
    Section 5265, Revised Statutes, concerns the use of depositions as evidence. It addresses itself to the consideration of the court in admitting evidence at a trial.
    A notary is not such a judicial officer. DeCamp v. Archibald, 50 Ohio St., 618.
    Section 5266, Revised Statutes, in contrast to the preceding section is addressed to a non-judicial officer. If the construction claimed by adverse counsel be correct, then the unrestricted right conferred by the terms of the statute is to be construed to be a right dependent upon mere speculation as to the probable happenings of future events. A notary would need be a prophet as well as a ministerial officer. The statute was intended to provide against and not to depend upon the contingencies mentioned in Sec. 5265, Revised Statutes. Abeles, In re, 12 Kan., 451; Shaw v. Installation Co., 9 Dec. (Re.), 809; 17 Bull., 274; Meader v. Root, 5 Circ. Dec., 61; 11 C. C. R., 81; 76 Mo., 229.
    In short where the terms of the statute are clear and the statute is a remedial one, and therefore the liberal rules of construction are to be applied, it is not a sound interpretation of a statute to construe it in such a limited sense, as to place its beneficial use within the narrowest confines possible by. construction. State v. Cost, 10 Dec. (Re.) 619; 22 Bull., 250.
    We have so far considered the case from the standpoint of an ordinary witness whose deposition is sought to be taken, and refer to the following authorities, which seem conclusive: Jennings, Ex parte, 60 Ohio St., 319; Nushuler, In re, 4 Dec. (Re.), 299.
    We have shown that the law in Ohio is, that an ordinary witness may be compelled to give his deposition before the trial. The decisions of the nisi prius courts in Ohio are not so unanimous as to the right to take the deposition of the adverse party, but with the exception of the case of Humphrey, In re, 7 Circ. Dec., 603; 14 C. C., 517, the decisions of the circuit courts in this state hold that the right exists. Meader v. Root, 5 Circ. Dec., 61; 11 C. C. R., 81; Robinson v. McConnell, 10 Circ. Dec., 797; 19 C. C. R., 716; Miller, Ex parte, 11 Dec., 69; 8 N. P., 142 (affirmed 12 Circ. Dec., 102; 21 C. C. R., 445).
    Section 5266, Revised Statutes, provides that “either party may commence taking testimony by deposition at any time after service upon the defendant.” This is general in term, and the class of witnesses whose depositions may be taken at this time is in no way restricted, and therefore does not exclude the adverse party. If an adverse party is to be ex-eluded from tlie operation of this unqualified statute, it must be because of some disabilities of “parties” existing outside of the statute.
    Section 5243, Revised Statutes, provides that the opposite party may be compelled to testify. Roberts v. Briscoe, 44 Ohio St., 596; Robinson, In re, 9 Dec., 763; 7 N. P., 105.
    Our statutes which compel parties to testify before the trial are the statutory substitute for the equity bill for discovery, and answer largely the same purposes. 8 Am. & Eng. Ency. Pl. & Pr., 366; Chapman v. Lee, 45 Ohio St., 356.
    The only decision of note contrary to our contention is Humphrey, In re, 7 Circ. Dec., 603; 14 C. C. R., 417, already referred to, but that decision is expressly qualified by the fact that it was admitted that the deposition was taken in bad faith.
    Has a notary the power to issue and compel obedience to the subpoena duces tecum?

    The following are the sections of the statute which are applicable, viz.: Secs. 119, 6537, 5246, 5247, 6705, Revised Statutes.
    Sections 5246-7, Revised Statutes, are within the sections referred to by Sec. 6705, Revised Statutes. Section 5247 provides expressly for subpoenas duces tecum,'and 6705 by incorporating 5247 into the powers of a justice gives the justice power to issue the subpoenas duces tecum, and by Sec. 119 the notary has consequently the same power. It can hardly be argued that the provision giving the right to issue a subpoena duces tecum is not “applicable” in a proceeding before a justice.
    The case refered to by adverse counsel, Sims, In re, 4 Dec. (Re.) 473; 4 Bull., 457, was decided without any reference to Sec. 6705, and, therefore, if for no other cause, the reasoning is unsound and the decision not authoritative.
    We desire to call attention to the fact that a circuit court in Ohio has pased on this question, and the decision is in line with what we contend the law to be. See an article by the editor of the Weekly Law Bulletin in 35 Bull., 345; 12 Circ. Dec., referring to an unreported case of Woods v. Altschul, decided in 1896 by the circuit court of ■ the second circuit in Clark county. The decision is directly in point.
   Davis, J.

The right to^ take depositions should be carefully distinguished from the right to use them. The one depends upon the competency of the evidence, or upon the existence of one or more of the cases mentioned in Sec. 5265 of the Revised Statutes; the other is a precautionary privilege granted by Sec. 5266 of the Revised Statutes. . The statutes provide that the testimony of witnesses may be taken by deposition (Revised Statutes, See. 5261), and presumably this applies to all witnesses) whether parties to the action or not, subject, however, to the limitation that a party may be examined as if under cross-examination, at the instance of the adverse party. (Revised Statutes, Sec. 5243.) An adverse party is, therefore, not exempt from testifying in a deposition; but whether the deposition of such witness, or of any other witness may be used or not must depend upon the judgment of the court when the deposition is offered as evidence. Whether or not the substance of the deposition is incompetent, is* to be left to the subsequent determination of the court; as is also the question whether a command to produce books, papers or other thing under the control of the witness relates to such books, writings or other thing as he may be compelled to pro<luce. If the witness assumes to decide these questions for himself at the time, unless the interrogatory involves a question of privilege, he must do so at his peril. If he should be right in his decision he would lose nothing; if wrong, he must suffer the consequences. Whether or not the provisions of the statutes afford opportunity for obtaining undue advantáge over, and of oppressing, an adverse party, is a legislative and not a judicial question. We cannot consider that question with propriety. But whether or not some wrong has been done, or is being done, under cover of legal process is, as we have said, ultimately for the decision of the courts.

Under the Revised Statutes, Secs. 5269 and 5271, a notary public is authorized to take depositions within this state, provided that he be not a relative or attorney of either party, or otherwise interested in the event of the action or proceeding.

In providing the means for securing the attendance of witnesses the statute requires the issuing of a subpoena under seal of the court, and that “the subpoena shall be directed to a person therein named, requiring him to attend at a particular time and place, to testify as a witnes; and it may contain a clause directing the witness to bring with him any book, writing or other thing under his control, which he may be»compelled to produce as evidence.” Sec. 5247.

In the same connection it is provided that “When the attendance of a witness before an officer authorised to talce depositions is required, the subpoena shall be issued by such officer.” Section 5248. What subpoena? Obviously the subpoena described in the preceding section. It is apparent, therefore, that a notary public is authorized to issue a subpoena duces tecum; and a refusal by the witness to obey such a subpoena would be a contempt of legal process. It follows from wbat has been said that all of these plaintiffs were guilty of disobedience of lawful authority exercised by the notary public. Did he have- power to compel obedience to the subpoenas issued by him and to punish the witnesses for refusing to obey the subpoenas or for refusing to testify? By Sec. 1Í9 of the Revised Statutes it is provided that “in taking depositions he shall have the same power to compel the attendance of witnesses and to punish them for refusing to testify which is by law vested in justices of the peace.” Revised Statutes, Secs. 6541 and 6542, contain the following provisions: “Whenever it shall appear to the satisfaction of a justice, by proof made before him, that any person has been duly served with a subpoena to appear and give testimony before him in any matter in which he has authority to require such witness to appear and testify, that his testimony is material; and that he refuses or neglects to attend as such witness in conformity with such-subpoena, the justice shall issue a warrant to arrest the delinquent for the purpose of compelling his attendance and punishing his disobedience,” and “when a person arrested is brought before the justice, or when a person in attendance .refuses to testify as a witness, and no valid excúse be shown, the justice may impose a fine on him,” etc.

It has been decided by this court, however, that the powers of a notary public to punish for contempt by a witness' are not limited to these sections, and that the powers conferred by Revised Statutes, Secs. 5252 and 5254 upon “an officer” taking depositions extend to a notary public, DeCamp v. Archibald, 50 Ohio St., 618, and it does not appear that any of the questions propounded to the witnesses were incompetent, nor that the books and papers which the witnesses were required to produce were such as they could not be compelled to produce. We, therefore, find no error in the judgments of the circuit court, and they are accordingly affirmed.

Minshall, C. J., and Williams, Burket, Spear and Shauck, JJ., concur.


author: Speak, J.

text:
    Denison University v. Mary E. Manning and Wm. H. Manning.

      Promissory note secured to payee by mortgage on maker’s realty — Mortgagor sells realty with notice to payee — Realty vendee asumes and agrees to pay maker’s mortgage r¡,ote— Receiving of interest on note by payee from and extension of time to realty vendee .not regarded as releasing maker of note.

    1. An answer in an action by a payee of a promissory note against tbe maker to recover a balance due after applying tbe proceeds of sale of mortgaged premises, which alleges the sale and conveyance by the mortgagor, after the execution of the note and mortgage, to purchasers who agree, as part of the consideration, to, assume and pay the mortgage debt, and that the payee of the note was duly advised of the sale and agreement of the purchasers to pay the note, consented thereto, and received interest on the note from the purchasers from time to time for seven years, and that, without the knowledge or consent of the defendants, plaintiff, for a valuable consideration, agreed with the purchasers to extend the payment of the note after maturity thereof, and did so extend it, does not state facts sufficient to establish that the payee agreed to accept such purchasers as principal debtors and to release the makers from the obligation save as sureties, and does not state a defense. Teeters v. Lam-born, 43 Ohio St., 144, distinguished.
    2. A mortgagor who has parted with his title to the land mortgaged, and is not in possession thereof, is not a necessary party to a proceeding brought by the executor of the purchaser to obtain an order to sell the land for the payment of debts. -'

      3. An allegation in an answer, as a third defense, to the effect that the 'defendants, “for their third defense refer to the first and second defenses set forth herein and make the same a part of this defense,” is ineffectual to constitute the allegations of the first and second defenses integral parts of the third defense, and will not aid the remaining averments of the third defense. --

      4. The receipt by the holder of a promissory note past due, of interest to a date fifteen days subsequent to such payment, and the indorsement of Such payment upon the note, isévi- - dence competent to be received in support of a claim of a contract to extend the time of payment of the note, but does not imply such contract as matter of law; and where the person who made the payment testifies at the trial to the transaction of payment, and is silent as to any request for extension and any agreement to extend, and the recipient of the money on the witness stand denies that any such request or agreement was made, a finding by the jury in favor of the claimed extension should be set aside as not supported by the evidence.
    (Decided October 22, 1901.)
    Error to the Circuit Court of Montgomery county.
    The Denison University commenced its action against Mary E. Manning and Wm. H. Manning in the common pleas of Montgomery to recover the balance due upon a note executed in favor of the University, of which the following is a copy, viz.:
    “$6,000.00 Dayton, Ohio, April 30,1887.
    “Three years after date, we, or either of us, promise to pay to the order of Denison University, of Gran-ville, Ohio, six thousand dollars, for value received, with 7 per cent, interest per annum, payable semiannually, on the 30th day of October and April of each year, and any installment of interest not paid when due ,to bear 7 per cent, interest per annum, until paid. Payable at Dayton, Ohio.
    “Mary E. Manning,
    “W. H. Manning."

      Divers indorsements of interest paid on the note were set out in the petition, all of which were made, either on the day interest' was due, or after, save one. That indorsement is as follows: “April 15, 1891, paid six months’ interest to April 30, 1891, $210.00.” There was also an indorsement of $5,093.54, paid generally on the note. The balance claimed was $906.46, with interest from April 7, 1895, at seven per cent.
    To this petition a second amended answer, admitting the making of the note, but setting up three defenses, was filed, which will be found stated in substance in the opinion. To this pleading a demurrer was interposed, which being overruled, a reply was filed and the cause proceeded to trial to a jury. At the conclusion of the evidence offered by defendants the plaintiff moved for judgment which was overruled. Evidence was then given by plaintiff and the cause submitted. A verdict for defendants being rendered by the jury, and motion for new trial overruled, judgment was entered on the verdict. This judgment was affirmed by the circuit court. The plaintiff brings error.

      Gobtschall, Crawford & Limberb, attorneys for plaintiff in error.
    The weight of authority is that, as between the vendor and vendee, they occupy the position of principal (vendee), and surety (vendor), but as to the mortgagee, the vendor still'remains as principal, unless the mortgagee agrees to, or by some act does accept the vendee as principal. 1 Jones on Mortgages, Secs. 740, 741; James v. Day, 37 Iowa, 164; Voris v. Shotts, 20 Ind. App., 220; Shepherd v. May, 115 U. S., 505; Teeters v. Lamborn, 43 Ohio St., 144; Brandt on Suretyship, (2 ed.) Secs. 24 and 37 (1878).

      We claim that the first and second defenses were no part of the third defense, because they were not repeated, and that the first and second defenses cannot be carried into the third defense by reference, but that the third defense must stand or fall upon the facts stated therein regardless what may be alleged in the first and second defenses, which are no part of the third defense. Insurance Co. v. Baldwin, 62 Ohio St., 368.
    Mere delay in collecting a debt when it becomes, due does not release a surety. There must be some positive act relinquishing a .surety.
    The» law is, that the contract to extend the time of payment to discharge a surety must be a valid one; definite in its terms; founded on a good consideration, such a one as the principal debtor could enforce; one which ties up the surety, prevents, him .from paying the debt, stepping into the creditor’s shoes and prosecuting the principal debtor himself. Such a contract must be without the surety’s consent, to discharge him. The contract must have all these characteristics. Jenkins v. Clarkson, 7 Ohio, (pt. 1) 72; Ward & Co. v. Wick, 17 Ohio St., 159; Vore v. Woodford, 29 Ohio St., 245; Rawson v. Taylor, 30 Ohio St., 389; Penterman v. Dorman, 8 Dec. (Re.) 391; 7 Bull., 281; Fischer v. Penterman, 8 Dec. (Re.) 540; 8 Bull., 306.
    Under the rule of law in this state, the relation remains the same between Manning and plaintiff in error after the sale as before, although plaintiff in error was notified of the fact and instructed to present the note to the vendees, Babbit and others for payment, unless the record shows that Crawford consented to look to Babbit and others as principal debtors. Instead of there being such a new contract, there is no testimony whatever that tends to show this fact. Even if Mannings did, after this talk with Crawford, become sureties, they were not released because plaintiff in error'delayed to collect the note. Mere delay to pursue remedies, or passiveness on the creditor’s part, does not release a surety. There must be some positive act relinquishing a surety. Farmers’ Bank v. Raynolds, 13 Ohio, 84; Dye v. Dye, 21 Ohio St., 86, Moore v. Gray, 26 Ohio St., 525; Camp v. Bostwick, 20 Ohio St., 337.
    Now, if the Mannings, by the mere notice given by Manning to Crawford, the representative of the plaintiff in error, that he had sold the real estate, and he should present the bill for the payment of the debt and interest to the purchaser and make the collection when the debt matured, constituted Mannings only a surety, and the purchaser the principal, still it is not sufficient to compel an immediate collection of the debt, and if not done would not release them as sureties. The notice must be in writing. Section 5833, Revised Statutes.
    Even if the language used by Manning had been in writing, still it would not have been sufficient. Baker v. Kellogg, 29 Ohio St., 663.
    The only question remaining is, if the Mannings occupied the position of sureties only, which we deny, did the payment of the installment of interest on April 15, 1891, that was not due until April 30, 1891, constitute such an extension time of the payment of the note, that would release the Mannings from their liability on the note.
    Upon this question, we think the law is well settled, that proof that after the maturity of a promissory note, the maker paid interest thereon to the holders, and that such interest was paid in advance for a definite period, does not of itself establish a binding agreement for an extension of the payment of the note, so as to discharge the surety. Hosea v. Rowley, 57 Mo., 357; Coster v. Mesner, 58 Mo., 549; Freeman Bank v. Rolins, 13 Me., 202; William v. Smith, 48 Me., 135; Bank v. Parsons, 138 Mass., 53; Bank v. Lewis, 8 Pick., 457; Bank v. Hill, 11 Pick., 129; Bank v. Withord, 17 Pick., 129; Bank v. Bishop, 6 Gray., 317; Russel v. Brown, 21 Mo. App., 51.
    The fact is not only the party who paid the interest, but Mr. Crawford who received it, swear that nothing whatever was said when this interest was paid. The party that paid this interest had no intention that there should be an extension.
    But it is claimed that the payment of interest in advance by the principal debtor after the note becomes due, is in itself .prima facie evidence of an extension of time. If a presumption at all it is only a presumption of fact, and not a presumption of law.
    It is true that this court in the case of Jones v. Brown, 11 Ohio St., 601, use this language which is a mere dictum, “It will be observed that we have not the simple case of a payment of interest in advance, from which an agreement to extend the time of payment of the debt may be inferred.
    In the case of Vose v. Woodford, 29 Ohio St., 245, it will be found that the facts in that case were much stronger in favor of the defendant than in this case, and still the court affirmed the "judgment. The only question in that case was based upon the refusal to charge, as requested by the defendant. We submit that if the court will compare the facts in this case, with those in that case it will not say that an agreement is to be presumed in this case. Gard v. Neff, 39 Ohio St., 607.

      Oscar F. Davisson and Robert M. Nevin, for defendants in error.
    This note became due April 30, 1890, and was extended from year to year up to 1895, by an arrangement between the Denison University and the purchasers of the farm. The Denison University could not deal .with the Mannings in any such manner. No extension of time or arrangement could be made by the Denison University with the purchaser of the property without the consent of the Mannings, and Ziba Crawford, the Manager of the Denison University, says that he never had one word of conference with the Mannings from the date of the execution of the note up to the trial of this cause, in regard to the payment of interest on this note, or any other matter pertaining to it. The Denison University having knowledge of the relations existing between the parties, was required by law to do nothing that would result in injury to the Mannings, who were simply surety. Spencer v. Spencer, 95 N. Y., 353; Colgrove v. Tallman, 67 N. Y., 95.
    The testimony clearly showed that- up to the date of the sale of the property in the probate court, the plaintiff looked to and dealt with T. S. Babbit et al. as the principal of this note. ' No other reasonable construction can be placed upon the testimony and the conduct of the parties, and the jury so found. There is no controversy as to the fact that interest was paid in advance. That, of itself, is sufficient to release the Mannings. No claim is made that the Mannings had notice of the sale in the probate court. The proof shows conclusively that if the farm had brought what it was reasonably worth, and that if a proper sale had been made, enough money would have been realized to have paid the plaintiff’s claim. This case was fully and fairly tried in the common pleas court. The charge of the court was favorable to the plaintiff in the common pleas court, and we think,' under the rule laid down in Vose v. Woodford, 29 Ohio St., 245, that the jury decided this case correctly. We also think that the decision is in harmony with the decisions in the Supreme Court. Society of Friends v. Haines, 47 Ohio St., 423.
    We are, further, of the opinion that the authorities in Ohio cited by counsel for plaintiff in error are in favor of our contention. Osborn v. Low, 40 Ohio St., 347; Fawcett v. Freshwater, 31 Ohio St., 637.
    An agreement between the payee and principal of a note for the extension of time of its payment for a fixed and definite period in-consideration of the same rate of interest as that named in the note, is valid without the payment of interest in advance, and if made without the knowledge of the sureties, will discharge them. Fawcett v. Freshwater, 31 Ohio St., 637.
    Where a mortgagor sells mortgaged premises to a third person, who in part consideration of the purchase money assumes and agrees to pay the mortgage debt, and the mortgagee extends the time of payment, we hold that the mortgagor is released from all liability on the note, and especially in equity such debtor is released from liability to the extent of his loss by reason of such extension, and that the original debtor becomes the surety of the grantee. Brewer v. Maurer, 38 Ohio St., 543; C. S. & L. Association v. Kreitz, 41 Ohio St., 143; Jones on Mortgages, (3 ed.), Secs, 748, 749, 651, 750; 47 Ohio St., 423.
    Where a deed contains a covenant, upon the part of the grantee, to pay a mortgage upon the premises, executed by the grantor, the relation of principal and surety is created between the parties, and an agreement by the holder of the mortgage with the grantee to extend the time of payment, made without the consent of the grantor, discharges the grantor. Schley v. Fryer, 100 N. Y., 71; Burr v. Beers, 24 N. Y., 178; Compbell v. Smith, 71 N. Y., 26; Smith v. Truslow, 84 N. Y., 660; Kincaid’s Pleading, 537.
    The Mannings are released by the extension of time for paying note. Calvo v. Davies, 73 N. Y., 211; 2 Randolph on Commercial Paper Secs. 965 and 957;
    Receiving interest in advance releases the surety. Woodburn v. Carter, 50 Ind., 376. Grayson’s Appeal, 108 Pa. St., 581.
    The Mannings are released to the extent of the value of the land at the time of the agreement to extend the time of payment, to that extent the Denison University practically took the land as the sole security and assumed the risk of collecting its mortgage out of it. Murray v. Marshall, 94 N. Y., 611.
   Speak, J.

Two questions arise upon the record, One relates to the sufficiency of the answer; the other to the legal effect of the evidence of defendants introduced at the trial.

1. The answer sets up that after the giving of the note and mortgage declared upon, to-wit, July 7,1887, the defendants, Mary E. and W. H. Manning, sold the real estate described in the mortgage to one Babbitt, who bought for himself and others, who as part of the consideration for the conveyance, assumed and agreed to pay to plaintiff the mortgage note sued on; that the agreement was in writing and incorporated in the deed to Babbitt; that the plaintiff was duly advised of said sale and arrangement and the agreement of the purchaser to pay the note and consented thereto, and received the interest (pursuant to the terms of said agreement) on said note from Babbitt and assigns from April 30, 1887, to April 30, 1894; that subsequent to July 7, 1887, the land was. sold by Babbitt to one George A. Slaght, and by him after-wards sold to his sister, Emma K. Slaght; that the note became due April 30,1890, and that the payment of the same was extended by plaintiff at maturity, and every six months thereafter, to April 30,1894, by an agreement with plaintiff and said purchasers without the knowledge or consent of these defendants, for a valuable consideration, to-wit: upon the agreement that they should pay seven per cent., interest semiannually for and during each six months; that the purchasers paid said interest as above set forth and agreed upon; that payments of interest were made in advance of various sums without the knowledge or consent of these defendants which interest was so paid in full from April 30, 1890, up to April 30, 1894 ; that after the sale of the real estate as above described these defendants occupied the position of sureties on said note, and by reason of the extending of time of payment and so receiving the interest thereon, without their knowledge and consent, these defendants are released.

As a second defense the answer states that one George R. Young, as executor of' Emma K. Slaght (the last purchaser of said land) commenced an action in the probate court praying an order to sell the real estate covered by the mortgage; that plaintiff herein was made defendant and filed an answer; that the real estate was sold and the proceeds were insufficient to pay the mortgage claim of plaintiff. These defendants were not parties to said suit and had no knowledge thereof; that the real, estate sold for much less than it was reasonably worth; that if it had brought its fair cash value the plaintiff’s claim would have been paid in full, and if plaintiff is permitted to maintain its action herein defendants will be damaged in the amount of plaintiff’s claim.

For a third defense the defendants refer to the first and second defenses of their answer and make the same a part of this defense, and allege that the real estate became greatly reduced in value from April 30, 1890, to April 12, 1895, the date of the sale; that if plaintiff had not extended payment of the note when it became due the same would have been paid in full; that the real estate would have sold for at least twelve thousand dollars; that defendants supposed the note was paid at maturity; that said extension of time was made by plaintiff with Babbitt and others without the knowledge and consent of these defendants; that the owner at that date was amply able to pay the same and by reason of extending the payment and receiving the interest and because of the proceedings to sell in the probate court these defendants are released from, all obligation and liability on said note.

The demurrer to this answer raised the question of its sufficiency in law to constitute a defense. The first proposition is that the sale and conveyance of the mortgaged land by the Mannings to Babbitt, his assumption as a part of the purchase price to pay the note of the Mannings to the University, and the knowledge by the University of that arrangement and its consent thereto, and accepting the payment of interest from the purchasers, changed the relation of the Mannings to the note from that of principal makers to that of sureties only; In other words, if a principal maker of a note and mortgage given to secure its payment, can effect the sale of the mortgaged lands, and obtain an agreement by the purchaser to pay the mortgage debt, and the mortgagee being apprised of the transaction, consents to it, and allows the purchaser to make payments on the note, he thereby releases the original maker as principal and may treat him thenceforth as a surety only. The proposition is not that the mortgagee agreed to release the original debtor, or to accept the purchaser as such original debtor; no such averment appears; it is plainly and baldly that the effect in law of the consent of the mortgagee that the purchaser may pay, and allowing him to do so, ipso facto works a change in the relation of the principal maker to the note. Expressions here and there in text-books seem to countenance this conclusion, and there are decisions of courts to like effect. But is it sound? That, as between the mortgagor and the purchaser, the general relation of surety and principal may be created by reason of their contract, can be conceded, but this falls very far short of changing the relation of a mortgagor from a principal to a surety as respects the mortgagee. The mortgagor has received, the full consideration and has executed his solemn promise in writing to pay the obligation unconditionally. The sale of the mortgaged property is made between the parties to it solely for their advantage, and in no sense for the benefit of the mortgagee. He need not know, and ordinarily does not know, anything about the transaction until after it is completed. If he happens to know that the negotiation is in progress, it is not within his power to arrest it, nor has he any voice in shaping it. He is as absolutely helpless to prevent it as is a total stránger. Incidentally it may work to Ms advantage. That is, being an agreement with the original payor to pay the debt, the creditor may, if he so elect, take advantage of it. Emmitt v. Brophy, 42 Ohio St., 82. But the agreement is not made for his benefit; as before stated, it is wholly for the benefit of the parties to it. Nor could they compel the mortgagee to recognize the sale or look to the purchaser for the payment of the debt. We are aware that the authorities are not in accord on the proposition. Among the cases favoring the contention of defendants in error is Murray v. Marshall, 94 N. Y., 611, and there are others. On the> other hand, Teeters v. Lamborn, 43 Ohio St., 144; Boardman v. Larrabec, 51 Conn., 39, and James v. Day, 37 Iowa, 164, hold to the opposite view. Other decisions of like import are found in the reports, and the weight of authority seems to support the contention of plaintiff in this respect.

This being the situation, why should the mortgagor be accorded the right to compel the mortgagee to elect between a repudiation of the obligation thus assumed by the purchaser and a novation by which he releases the original debtor from his obligation as principal, and consents that from thenceforth he shall be regarded as surety only? Why should the creditor be compelled to trade debtors or release any security he already holds? Whether the obligation is paid by the maker or by one to whom he has transferred the property forming the security is a matter of indifference to the payee; for that purpose one hand is as good as another. We are of opinion that the proposition is not sound; that the facts stated do not show that the Mannings became sureties as between them and the University. Hence, the further proposition that the Mannings are released because of the alleged agreement to extend the time for payment of the principal, by reason of a promise to pay seven per cent. interest, without their consent, is without support in law, It is urged that the allegation of an agreement to extend the time of payment of itself implies in law a previous agreement to accept the purchasers as principal debtors. We are of opinion that it does not. The mortgagee, being under no obligation to accept the purchasers as principal debtors, or as debtors of any kind, had a legal right to exonerate them from direct obligation to it altogether and a fortiori could assent to relieve' them for a time. It is further urged that the Mannings were damaged by this agreement. How? The simple delay was not a. matter of which they could find fault. (Dye v. Dye, 21 Ohio St., 86; Moore, Adm’r, v. Gray, 26 Ohio St., 525.) And we have already found that they could not compel the creditor to sue the purchasers; nor could they complain of an agreement between purchaser and mortgagee unless they were thereby deprived of some existing right, though, as between them and the purchasers, they were sureties. Using the language of the court in Jenkins v. Clarkson, 7 Ohio (pt. 1), 76; “If the surety has been deprived of no right; if he has been left perfectly free to manage his concerns with his principal in his own way; if his hands have not been tied, why should he complain?” They would not be deprived of their right at any time to pay off the debt and proceed against the purchaser on his assumption of its payment. ' Not being parties to the agreement for an extension, they were not bound by it, and all the remedies that they possessed before the extension remained to them after.

The second defense is based upon the assumption that it was the duty of the mortgagee to see that the makers were made parties to the proceeding in the probate court to sell the mortgaged land, instituted by the executor of Slaght, and that as the land sold for less than its real value they have been daxnáged and the mortgagee should make them whole. But the suit was not brought by the University, and the Mannings having parted with their title to the land, were hot in the chain of title, and hence not necessary parties. There can be no legal foundation for this claim.

The third defense attempts to embody the allegations of the first and second defenses, by reference only. This was ineffectual to constitute the averments of the other defenses integral parts of the third. Eureka Ins. Co. v. Baldwin, 62 Ohio St., 368, 384. The defense, as pleaded, fails not only to show that there was any relation of surety existing in favor of the Mannings, but fails also to show that the alleged extension was based upon any consideration. It seems hardly worth while to dwell longer on this feature. The pleading as a whole made no defense to the plaintiff’s cause of action, and hence the demurrer should have been sustained.

The case of Teeters v. Lamborn, supra, is cited by each party in support of his contention. In that case the answer set up a sale by the mortgagor and an agreement of an assumption by the mortgagee of the mortgage debt, and knowledge by the creditor of such sale and agreement and his assent thereto, and that he then adopted the purchaser as his sole debtor* for the debt, and that afterwards the creditor entered into an agreement with the purchaser to extend the time of payment and received interest in advance for the period of ninety days without the knowledge or consent of the mortgagors. The court held that the proof showed that the creditor had knowledge of the contract of sale and knew of the assumption of the debt by the purchaser and consented to receive paynient if tendered by him, but did not consent to look to such purchaser as his sole or even principal debtor; that the obligation of the makers of the note as to him remained as it was when the note was executed, and that the fact that the creditor could enforce the promise of the purchaser by action did not change the relation of the parties. This holding (with which we fully agree) effectually disposed of the claim of defendants that the agreement for an extension ipso facto released the makers from their obligation to pay, and, that question settled, nothing else remained for the court to adjudicate. However, the opinion, and syllabus as well, proceed then to state that had the answer alleged and the proof shown that the mortgagors incurred loss or damage by reason of the extension, they would have been discharged pro tanto. As the question was not made by the record this is obiter and is not binding as a decision. With great respect for the court and for the eminent judge who reported the case, we are compelled to say that, for the reasons above stated, we do not agree with the proposition.

2. In the practical administration of justice in the courts it frequently happens that evidence given at the trial may cure defects in pleadings, and so it is fair to look to the testimonx in this case to see whether the defects in the answer are supplied. With respect to the matter of any agreement on the part of the University to accept the purchasers as principal debtors, and look to the mortgagees as sureties only, the claim rests upon a conversation between Mr. Manning, testified to by him, and Mr. Crawford, the agent of the plaintiff. In substance that is: “In the fall of 1888 I called at his office and told him I had gone into business in Indiana and wanted to notify him that when the paper matured on that farm on which our notes were signed, I wanted him to make the collection — be free from any further responsibility. He smiled and asked me if I was scared. I told him no; that I knew it was good now, and then he followed it up by stating that the paper wms entirely satisfactory to him; that it had been strengthened. He never objected to improvement of paper — never objected to paper being improved and strengthened.” Manning further testified that from that time until the suit was commenced he never heard anything more about the note or real estate; no demand for payment was made on him or Mrs. Manning for payment of interest. One Hartenstein also testified that he was present and heard the conversation testified to by Manning and it was to the effect: “You know, Mr. Crawford, I have disposed of the Greene county farm and I wish to be released of all further financial responsibility in the matter. He further stated he had sold it to thoroughly reliable men, naming them, and these men had agreed to pay off the mortgage when it became due and that they should be looked to for the money. Manning also said something about going into business in Indiana.” It would hardly be a good use of space to take it for the purpose of showing that this talk falls short of an agreement on the part of the University to assent to a change of the relation of the Mannings to the debt. It does not even tend to show such agreement for it demonstrates clearly the exact opposite. Crawford was invited to make a promise which he significantly omitted to do. It is true that he notified the purchasers from time to time that interest was due on the note and that they paid interest in accordance with such notices, but this cannot alter the real situation. It fails to support the claim of an agreement to change the attitude of the makers of the note. As before stated, payment by one was as welcome as by another.

Under the view taken of preceding questions it is possible to decide the Case without considering the effect of the evidence respecting the claim of the extension of time. Yet the question is made upon the record and may properly receive attention. The claim rests wholly on the effect of the indorsement of interest of date April 15, 1891, which is: “paid six months’ interest, to April 30, 1891, $210.00.” It is urged that this implies necessarily that there was an agreement to extend the payment for a definite period, to-wit: fifteen days. But does it? Such indorsements have been the subject of controversy in many eases. It is observed in some opinions that it is prima facie evidence of an extension. We know of no case where it is held to be conclusive. While as a matter of law the length of time is not important, yet it strikes one as improbable that there should be negotiation between parties situated as these persons were, for an extension of only fifteen days, and we look, therefore, to their acts and conversation to discover what was in fact said and done. The payment was made by George A. Slaght (a witness for the defendants at the trial) to Mr. Crawford. The witness does not say a word about a request for an extension nor an agreement to extend. - He does not recall the exact words, but says that he went into the bank where Mr. Crawford was and made him understand that he wished to páy interest on that note; that he paid it, took a receipt for it and went his way. Mr. Crawford, when called shortly after by the plaintiff, testified that George Slaght made that payment of interest, that Slaght said he had traded for the property, and beyond that nothing was said. He further testified positively that he was never asked to extend the time, nor receive interest in advance. There is no denial of this statement, although the defendants’ witnesses were presumably present, or at least within reach of process. Any possible inference favorable to defendants from that indorsement was thus effectually rebutted,' and it left the conclusion that the payment of interest was made at the time as a matter of convenience to Slaght,( and Avithout any understanding at all that an extension of time for the payment of the principal had been had or even requested. There Avas no occasion for such request; no threát of suit had been made and there is not a word in the record to show that coercion of any kind was being used with Slaght. His payment was wholly voluntary. Peterman v. Dorman et al., 7 W. L. B., 281, superior court of Cincinnati, opinion by Harmon, J., while not authority binding on this court, is an instructive case upon the subject, where the authorities are ably _ reviewed, and the conclusion here stated fully sustained. See, also, opinion of the district court, reviewing the same case, opinion by Smith, J., reported in 8 W. L. B., 306; also Harnsberger, Ádm’r, v. Kinney, 13 Grat., 511. Possibly, under our practice, such a question should go to the jury, but certainly their conclusion adverse .to the plainitff ought not to be sustained by the court.

Exceptions were taken to the charge of the court and to refusals to charge. It is not important that these be considered:

We are of opinion that the trial court erred in over ruling the demurrer to the second amended answer, in overruling the motion of the plaintiff to take the case from the jury, and its motion for a new trial, and that, upon the pleadings and admitted facts, plaintiff is entitled to judgment. - Judgments below will, therefore, be reversed and the cause remanded to the court of common pleas with direction to render judgment for plaintiff for the amount claimed in the petition, and for costs.

Burket, Davis and íShauck, JJ., concur. Williams, J., concurs in the,reversal on the first proposition of the syllabus. Minshall, O. J-, absent.