author: Owen, .J-

text:
    Arcade Hotel Co. v. Wiatt.

      Innkeeper — Liability for loss of money by person not guest— Who is guest.

    1. An innkeeper is not liable, as such, for the loss of money deposited with him for safe keeping by a person who is not a guest of the inn at the time such deposit is made, or at the time the loss occurs.
    2. The clerk of such innkeeper has no authority to bind the latter, either as innkeeper or special bailee, for the loss of money deposited for safe keeping with such clerk by a person who is not a guest of the inn at the time of such deposit.

      3. To entitle a person visiting an inn to be treated as a guest, and to hold the innkeeper responsible for money deposited with him for safe keeping, it must appear that such visit was for the-purposes which the common law recognizes as the purposes for which inns are kept; and where such visit is made by one who does not require the present entertainment or accommodations of such iun, but whose purpose is simply to deposit his money for safe keeping, he is not a guest of the inn and can not hold the proprietor to an innkeeper’s liability for the loss of his money,
    4. W., the keeper of a gambling house, closed his night’s business at two o'clock a. m., having a sum of money upon his person; and not being ready to retire for tho night, and not wishing to carry Ins money upon his person at that time of the night, visited an inn for the purpose of depositing his money for safe keeping; found the inn in charge of a night clerk; inquired if he could have lodgings for the night; was told that he could; stated that he did not desire to go to his room at that time, but wished to leave some money with the clerk, and would return in about half an hour. The clerk told him he would reserve a good room for him. He did not register his name. It was not upon any book of the inn. No room was assigned him. He left his package of money with the clerk, received a check for it, and departed. He returned in about three hours to have a room assigned him and retire for the balance of the morning. The clerk had absconded with the money.

      Held, W. was not a guest of the inn at th"e time he deposited his money with the clerk, and the innkeeper is not liable for its loss.
    Error to the District Court of Hamilton county-.
    The action below was brought by the defendant in error, Edward Wiatt, in the superior court of Cincinnati, against the plaintiff in error, a corporation, operating the Hotel Emery, at Cincinnati, to recover the sum of twenty-one hundred and ninety-five dollars which he alleged he deposited with the company on the 14th of October, 1882, •while a guest at the hotel, for safe keeping in its safe, and which it refused to return or repay to him.
    The defendant below denied that Wiatt was a guest of the hotel, and that he deposited, or it received, any money from him for safe-keeping.
    The cause was tried to the court, a jury being waived, and the plaintiff below recovered judgment for the amount claimed.

      The district court affirmed this judgment on error, and the present proceeding is to reverse the judgments below. All the evidence given upon the trial is before the court in a bill of exceptions.
    , The questions considered by the coui’t are, (1) whether there was error in the admission of certain testimony relating to the amount of money involved in the loss of the defendant in error; and (2) whether Wiatt was' a guest of the hotel at the time of the alleged deposit.
    So far as the evidence upon this issue is reviewed by the court, it is presented in the opinion.
    The former question is presented by the action of the court, as shown by the following extract from the bill of exceptions. (Robert Holloway, called for the plaintiff below, was asked in chief) :
    “ Q. Do you know Mr. Wiatt ? A. Yes, sir.

      Q. Is he in business with you? A. He was.

      Q. Ho you know how much money was in his card playing house on the morning of the 14th or night of the 13th of October? A. No, sir; I know what he ought to have had.
    Q. You know what he ought to have had?
    Mr. Jenney — I object to it.
    , The Court — Explain what you mean by that. The question as asked is open to objection.
    (Former question repeated.)
    Mr. Jenney — I object to it.
    The Court — The objection is overruled.
    Mr. Jenney — I will take an exception.

      A. Well, he was responsible for twenty-five hundred dollars; I do not know whether he had that or one hundred dollars; he was supposed to have had twenty-five hundred dollars in his possession.”

      Perry § Jenney, for plaintiff in error.
    Wiatt was not a guest of the hotel. Hence the clerk, by receiving a package from him for safe keeping, received it as an individual, and not as agent of the hotel, and it is not bound by his-act.
    An inukeeper, at common law, is liable for the loss of goods of his guests committed, to his care unless the loss is caused by the act of God, by the common enemy, or by the neglect or default of the guest.
    The grounds of so stringent a law are clear. The wayfarer is compelled to lodge at the inn; he has no choice, and he is a stranger. He has no knowledge of the innkeeper’s respectability, -who, for all he knows, is in league with thieves. > Mono. Inn. 1.
    “ In order to create the liability in question, the relation of guest and innkeeper must exist.” Id. 13.
    “ Inns are for passengers and wayfaring men.” Wharton Innkeepers, 75, 76.
    “Common inns are instituted for passengers and wayfaring men.” Calye’s case, 8 Coke, 32.
    An innkeeper is “ a person who makes it his business to entertain travelers and passengers,” etc. Bac. Abr. Inns and Innkeepers, B. C. 1.
    “ By opening a common inn the hostler undertakes to receive and entertain all travelers until his house is filled.” Willc. Inns, 47.
    “Any one wdio makes it his business to entertain travelers, and provide lodging and necessaries for them, their horses and attendants, is a common innkeeper.” Edw. Bailm., § 450.
    An inn is “ a house where a traveler is furnished with every thing he has occasion for while on his way.” Thompson v. Lacy, 3 B. & Ald. 283; Bouv. L. Dict.; 2 Par. Cont. 145.
    For further definitions of an inn, see 1 Chitty Cont. (11 Am. ed.), 674; Ingalsbee v. Wood, 36 Barb. 462; Jacob’s Law Dict.; Burr. Law Dict.; Worcester Dict.; Story Bailm., § 464.
    As to what constitutes a guest, see Tidswell Innkeepers Leg. Guide, 1; Story Bailm., § 477; Webst. Dict.; Rex v. Luellen, 12 Mod. 445; Queen v. Rymer, L. R. 2 Q. B. Div. 136; Walling v. Potter, 35 Conn. 183; Grinnell v. Cook, 3 Hill, 485; Atkinson v. Sellers, 5 C. B. N. S. 442; Eslava v. State, 49 Ala. 355; Gholson v. State, 53 Ala. 519; Carter v. Hobbs, 12 Mich. 52; Gelley v. Clerk, Cro. Jac. 188; Healy v. Gray, 68 Mass. 489; Lusk v. Belote, 22 Minn. 468; Curtis v. Murphy, 31 Alb. L. J. 352.
    There are authorities to the effect that when a traveler leaves his horses at an inn and lodges elsewhere, or when one purchases liquor, etc., at the bar of the hotel, he thereby becomes a guest. The reason for such holding is that, by the keeping of the horses or sale of the liquor, etc., the landlord derives a profit, but it does not apply where he leaves a dead thing from which the landlord derives no profit. Wharton Innkeepers, 76; Williams v. Gesse, 3 Bing. N. C. 849; Lynar v. Mossop, 36 Q. B. Up. Can. 230.
    Judged by the foregoing authorities, Wiatt was not a guest of the hotel,- nor did the Arcade Hotel Company occupy'toward him the position of an innkeeper; nor did it derive any benefit from the leaving of the package with the clerk. He was neither a traveler, a wayfarer, nor a stranger, and the reason for the strict liability imposed upon innkeepers does not apply to him. He was not “ compelled to lodge at the inn;” he had his house, to which he could have gone. He had a “choice” among the many hotels and lodging houses of the city. He was not “ a stranger in the neighborhood,” who “has no knowledge of the innkeeper’s respectability.” He did not use the hotel •for any of the purposes for which hotels are established, but used it simply as a place of deposit for his money, not wanting to carry it on his person at “ that time of the night.”

      Campbell, Bates $ Bettman, for defendant in error.
    Whether the relation of innkeeper and guest subsists is purely a question of fact and not of law, and if found for the plaintiff, will not be reversed. Hall v. Pike, 100 Mass. 495; Houser v. Tully, 62 Pa. St. 92; McDonald v. Edger

      ton, 5 Barb. 560; Jalie v. Cardinal, 35 Wis. 118; Pinkerton v. Woodward, 33 Cal. 557, 598.
    Whatever the reason of the liability of innkeepers, the courts say of it: “The rule is severe, but not unjust.” Wilkins v. Earle, 44 N. Y. 171, 178. “ The rule of publie policy does not admit of any just relaxation.” Id. 179.
    “We are not disposed to relax the rules of liability applicable to innkeepers.” Fuller v. Coats, 18 Ohio St. 343, 350.
    Our opponents have made a most industrious and interesting collection of dicta, .but no decisions, to the effect that an inn is for the entertainment of travelers, and that only a stranger en route can become a guest.
    An inn is defined to be “ a public house of entertainment for all who choose to visit it.” Wintermute v. Clarke, 5 Sandf. (N. Y.) 242, 247; Walling v. Potter, 35 Conn. 182; People v. Jones, 54 Barb. 311, 317; Pinkerton v. Woodward, 33 Cal. 557; 1 Wait Ac. and Def. 343; Bouv. Inst., § 1015; Redf. Bailm., § 584; Edw. Bailm., § 455; Schouler Bailm. 256.
    “An innkeeper is bound to receive and entertain all applicants,” etc. Watson v. Cross, 2 Duv. (Ky.) 147; Hawthorn v. Hammond, 1 Car. & Kir. 404, 407.
    In fact, the common averment was that defendant kept an inn for the accommodation of travelers, and others. See Allen v. Smith, 12 Com. Bench. (N. S.) 638.

      Calye’s case, 8 Coke, 32, as well as Southcote v. Stanley, 1 Hurl. & Nor. 247, turned on the fact that the inmate was invited there by the innkeeper.

      Calye’s case has not been understood to exclude a resi- • dent from becoming a guest. Warbrook v. Griffin, 2 Brown. & Gold. 254; Bennet v. Mellor, 5 Term (Durnf. & E.) 273.
    A resident may become a guest of an inn. Walling v. Potter, 35 Conn. 183; s. c. 9 Am. Law Reg. N. S. 618, 620, note by Judge Redfield; Thompson v. Lacy, 3 Barn. & Ald. 283; Hall v. Pike, 100 Mass. 495; Peache v. Colman, L. R. 1 C. P. 324, 328; Watson v. Cross, 2 Duv. (Ky.) 147; Kopper v. Willis, 9 Daly, 460; Drope v. Thairye, Noy, 79.
    The eases are numerous where persons obviously living near by were held guests, thus: A driver of cattle along the road, in Hilton v. Adams, 71 Me. 19. One who came with a horse and wagon to attend a trial of a case brought against him by the innkeeper, in Read v. Amidon, 41 Vt. 15. One who came to market, in Bennett v. Mellor, 5 Term R. 273. So, if it does not appear that the party was a traveler, in Farnworth v. Packwood, 1 Stark. 198; McDonald v. Edgerton, 5 Barb. 560; Parker v. Flint, 12 Mod. 254; Hancock v. Rand, 94 N. Y. 1.
    In the following cases the residence of the plaintiS ■would have been a conspicuous element in the decision, had ■the law been as claimed by our opponents: Ingallsbee v. Wood, 32 N. Y. 577; Gastenhofer v. Clair, 10 Daly, 265; Norcross v. Norcross, 53 Me. 163; Grinnell v. Cook, 3 Hill, 485; Hickman v. Thomas, 16 Ala. 666; Thickstun v. Howard, 8 Blackf. 535; Queen v. Rymer, L. R. 2 Q. B. Div. 136; Shoecraft v. Bailey, 25 Iowa, 553; Whittemore v. Haroldson, 2 Lea (Tenn.) 312.
    The testimony to show how much money Wiatt ought to have had was properly admitted. Wilkins v. Earle, 44 N. Y. 172; Mad River, etc., R. Co. v. Fulton, 20 Ohio, 318, 326.
    Even 'if the evidence was not competent, it would fall within the rule of Thayer v. Luce, 22 Ohio St. 62.

      Perry Sf Jenney, in reply, commented upon the cases cited by counsel for defendant in error.
    We claim that “ who are innkeepers, and what are their duties, must be determined by the common law,” Walker’s Am. Law (6th ed.) 490; and “a jury may properly decide, under judicial instruction, whether one is an innkeeper or not, upon all the proof submitted,” Schouler Bailra. 254. And the same rule applies in determining-who are guests.
    The numerous definitions given in the books and decisions of who is an innkeeper or a guest show that the status of a party is a question for the court.
   Owen, .J-

Did the trial court err in admitting, against the objection of the defendant, the statement of the witness. Holloway ?

The amount of money deposited by the plaintiff below was in controversy. The testimony objected to was material. It appears from the opinion of the trial judge, to which we are referred by counsel, that it exercised important effect in the determination of the case.

The witness was asked if he knew how much money Wiatt had in his card-playing house on the morning of the 14th or night of the 13th of 'October. He answered : “No, sir; I know what he ought to have had.” Counsel then inquired, “You know what he ought to have had?” This was objected to. The question and objection wore repeated. The objection was overruled, and exception taken. The answer was: “Well, he was responsible for twenty-five hundred dollars; I do not know whether he had that or one hundred dollars; he was supposed to have had twenty-five hundred dollars in his possession.”

It seems too clear for serious discussion that this was erroneously admitted and considered. The statements made by the plaintiff below concerning the amount of money contained in the package deposited were involved in much doubt and uncertainty. Holloway was his only coroborating witness. The statement objected to could have had but one effect — to prejudice the defendant below. Eor this error alone we should feel called upon to reverse the judgment below. We do not, however, place our action wholly upon this ground.

Was Wiatt a guest of the hotel at the time he delivered to the clerk the package containing the money involved in suit ? This is the vital issue in the case. That the money was deposited and lost is assumed. It is maintained by defendant in error that this was a question of fact, and that the judgment of the trial court upon the evidence is conclusive.

Conceding that there was substantial conflict in the evidence upon this issue, the position of counsel is well chosen. If, however, the facts are definitely ascertainable from the undisputed evidence, whether Wiatt was a guest of the hotel is a question of law. We do not undertake to weigh conflicting proof. If there was evidence fairly tending to prove Wiatt a guest of the hotel at the time he deposited his money with the clerk, the judgment below is, upon that issue, conclusive. If, however, the evidence offered upon this issue, construed most favorably to the plaintiff below, does not faii’ly tend to establish that relation, it is our duty to say, as a legal conclusion, that the judgment below is erroneous.

The arguments of counsel, aside from the alleged error in admitting the statements of Holloway, and whether Wiatt was a guest, are chiefly addressed to the question whether Wiatt, being a resident and householder of the city of Cincinnati at the time he left his money with the clerk of the hotel, and not in any sense a traveler, was capable of becoming a guest of the hotel, and of charging its proprietor with the safe keeping of his money. Without entering upon the consideration of this question, we are content to assume, without deciding, that Wiatt was so capable of becoming a guest, and to proceed with the consideration of the proof which is relied upon to establish such relation.'

It must be conceded that unless the relation of innkeeper and guest subsisted between Wiatt and the proprietor of the hotel at the very time the money was received by the clerk, or at the time of the loss, no recovery could be had for such loss.

The testimony produced in behalf of the plaintiff below, reflecting upon what occurred after he entered the hotel and before his departure therefrom (having deposited his money), is confined to three witnesses; the plaintiff himself, one Mullen, and Scott, a bell boy of the hotel.

Wiatt testified that he entered the hotel about ten minutes after two o’clock in the morning, accompanied by his friend Mullen, and applied to the clerk for accommodations.

He says: “I asked for accommodations that night; I says to him: ‘How are you fixed for accommodations?’ He says : ‘ Very well, as we have not been doing very much since the Exposition.’ I says: ‘Very good, let me have a room, and I will stop with you to-night.’ He says: ‘All right, I will just take your name. I am busy now making up my night account. I will just take your name.’ I says : ‘ Very well, I have been eating something and T do not care about retiring now, I will be back in perhaps a half an hour.’”

Repeating, he testifies : “ I says : ‘ I want a room.’ At the time he was busy at the side desk, looking over some books. He says: ‘ I am engaged now, just making up my night account, or night report;’ says he: ‘I will take your name and reserve you a good room.’ I says : ‘ Very good.’ I then produced this package of money. I said: ‘ I would like to leave this with you.’ ”

He delivered the package to the clerk and received, as a check for it, a slip of paper with his name written thereon by the clerk. He says: “ I then passed out through the west end of the Arcade ; some question was asked me by my friend, and I says: ‘ I was going up as far as Mr. Wallace’s, The Turf Exchange.’ Q. Bid you go there that night ? A. Yes, sir. Q. You say some one was with you, who was that ? A. Mr. Mullen. Q. Bid he accompany you to Wallace’s ? A. Yes, sir. Q. When did you leave there ? A. I left there in the neighborhood of five o’clock. Q. Where did you go to then ? A. Birect from there to - the Hotel Emery.”

Without reciting his testimony concerning what occurred upo,n his return to the hotel, it will suffice to say that the clerk and the money were missing; he soon became concerned for his money, and these, with other circumstances, may sufficiently account for his failure to take a room for the balance of the night, or morning.

He further testified that there was $2,195 in the package left with the clerk, and that his business required about that amount of money. The foregoing testimony was in chief.

Then follows :

“Cross-examination by Mr. Jenney: Q. You say your business requires that much money; what is your business ? A. I was engaged in operating a club room here.
Q. To speak plainly, a gambling room? A. Yes, sir.
Q. Where is it? A. At No. 266 Yine street. Up over Gilligan's place.
Q. You were playing that night? A. I was doing business.
Q. Yon were carrying on business that night ? A. Yes, sir.
Q. After you left the Hotel Emery, did you carry on business botli before and after you left the Hotel Emery? A. No, sir; not after I was in there.
Q. You were not? A. No, sir; I left this money at the hotel as a safeguard.
Q. Because you did not want to carry it around? A. Yes, sir.
Q. You left the money there simply for safe keeping? A. No, sir; I didn’t.
Q. What was your object in leaving it there ? A. I left it there as a guest of the hotel.
Q. Why did you leave it there ? A. I left it there not wanting to carry it on my person that time in the night.
Q. You left the hotel and you expected to go out around the city? A. No, sir; I didn’t expect to go; if I had found agreeable friends in the hotel I should have perhaps staid there and smoked, and perhaps not went out at all.
Q. You are a married man ? A. Yes, sir.
Q. You are keeping house.? A. Yes, sir.”

After stating that he was keeping house at the time of his loss, and that his wife had gone to attend upon and remain with her invalid mother on the night in question, he testifies:

“ After attending to my business, it being rather late, and the neighborhood being rather a disreputable one, as everybody knows that is familiar with it, I did not care to carry this amount of money with, me, and go home and not find anybody there; and I told my wife I would stop down at the hotel to-night. So I had considered the matter before I left my place of business, that I would stop at the Hotel Emery. I had no intention of going home that night.”

His friend, Mullen, testifies in chief:

“ Examined by Mr. Campbell—
Q. On the night or morning of the 14th of October, you may state whether, or not, you were in company with Mr. Wiatt; were you with him ? A. Yes, sir.
Q. Where did you meet him that evening, first ? A. I met him at Andy Gilligan’s.
Q. Where did you go from there with him? A. We went down Mine street to Bessehl’s, or IlarfF & Kramer’s.
Q. What did you do there ? A. We had a glass or two of beer, and something to eat — we had some oysters.
Q. From there, where did you go ? A. I proposed to Mr. Wiatt to go up home; I had been in the habit of going home with him frequently; probably three or five times a week I would go partly home with him; he said that he was not going home that evening, -that his wife was absent.
Q. Then, where did you go? A. We went down to the Hotel Emery.” ... «
“ O. You said the clerk asked him if he wanted a single or double room ? A. Yes, sir.
Q. Mr. Wiatt responded, what ? A. That he wanted a single room.
Q. What next occurred ? A. He asked him if ho wanted to go to bed now; he said, ‘No, not right now; I want to leave some money here, and I will be back after a while.’ He pulled out his package, and asked for an envelope to put it in.”

On cross-examination, he says:

“ Q. Mr. Wiatt said that he did not want to go to bed, but that he would be back after a while? A. He said something about being back after while.
Q. He did’ut want a room then? A. He said something about wanting a room. He asked if they had a room, and the clerk told him that they had room, and he asked him if he wanted a single or double room, .and he said a single one, and the clerk said they could accommodate him; and he said, he did n’t want to go to bed now, and the clerk said, I will reserve you a room; and then Mr. Wiatt said, ‘here, I want you to take care of this,’ and ■ took out his money.”

The witness, Scott, testified as to what transpired between Wiatt and the clerk, as'follows:

■ “ Q. What did Mr. Wiatt say? A. He came in and asked how he was fixed for accommodations.
Q. Yes, what was said ? A. He said very well, not been doing much since the Exposition.
Q.- And what more was said; any thing else? A. He said that he wanted a room. I was sitting over there, and the clerk, knowing I was a bell-boy, he called me over and said, take this gentleman to a room. Mr. Wiatt said: ‘ Not just now ; I am going out.’
Q. Do you know whether he gave any money to the clerk? A. Yes, sir.”

The foregoing comprehends, substantially, the testimony Which is most favorable to Wiatt, concerning what occurred at the time he delivered his money to the clerk, and bearing upon the relation which then subsisted between the former and the proprietor of the hotel.

/At the time the clerk took charge of his money, Wiatt had not registered his name; it was not entered upon any of the books of the hotel; no room had been assigned him; and while it is not necessary to contend that all, or any, of these facts were necessary to constitute him a guest of the hotel, they are valuable aids in determining, in the light of the other proof in the case, whether that relation in fact existed. There is proof which may account for his failure to register. Still, if he had registered, and this is shown to have been for the purpose of securing a safe depository for his money, it would not avail him.

It will not do to contend that the deposit of his money contributed to constitute him a guest. Unless he was a guest, the clerk had no authority to bind his principal by receiving the money.

In Carter v. Hobbs, 12 Mich. 52, it is held:

“In order to make one liable as innkeeper at the common law, for goods lost at his inn, it must appear that he was acting in the capacity of innkeeper on the occasion when the goods were received, and that the ownei was his guest; in other words, that the latter visited the inn for purposes which the common law recognizes as the purposes for which inns are kept.”

In Gelley v. Clerk, Cro. Jac. 188: Defendant was an innkeeper at Ubridge. Plaintiff was his guest. Plaintiff left his goods at the inn, and went to London, saying he would return in two or three days. He returned within three days and found his goods had been stolen. Action on the case was brought for the value of the goods, and it was held:

“If one come to an inn and leave his goods and horse, and go into the town, and afterward returns; and in the meantime his goods are stolen, no doubt but he is a guest, and shall have a remedy. And so was Sir Edwin Sands’s case; for his absence iu part of the day is not material, but he is always reputed as a guest. So, where one leaveá his horse at an inn, to stand there by agreement at livery, though neither himself nor any of his servants lodge there, he is reputed a guest for that purpose, and the innkeeper hath a valuable consideration; and, if the horse be stolen, he is chargable with an action, upon the common custom of the realm. But, as in the case at the bar, where he leaves goods to keep, whereof the defendant is not to have any benefit, and goes from hence for two or three days, although he saith be will return, yet he is at his liberty, and therefore is not a guest during that time, nor is the innkeeper chargeable as a common hostler for the goods stolen during that time, unless ho make an especial promisee for the safe keeping of them ; and the action should be grounded upon it.”

In Grinnel v. Cook, 3 Hill, 485, the court held :

“ An innkeeper is bound to receive and entertain travelers. If a traveler, having stopped at an inn, leave his horse there and go out to dine or lodge with a friend, he does not thereby cease to be a guest. The same rule holds good, so far as relates to property, for the care and keeping of which the innkeeper is to receive a compensation, though the traveler leave the inn to go to a neighboring town, intending to be absent several days. Otherwise, however, in respect to inanimate property, from which the host derives no advantage.”

“ If a traveler leave his horse at an inn, he shall be deemed a guest, even though he lodges elsewhere; but not, if he leave any dead thing as luggage.” Wharton’s Innkeepers, 76.

An innkeeper is not bound to receive the goods of a person who only desires the use of the inn as a place of deposit. Ibid. 79; Bennet v. Mellor, 5 Term R. 274; Mateer v. Brown, 1 Cal. 221.

The inquiry is suggested here, in the light of the citation from Carter v. Hobbs, supra: Did Wiatt visit the hotel, on the morning in question, “ for purposes which the common law recognizes as the purposes for which inns are kept” ?

That he did not stand in need of, and that he did not desire nor ask for, the present accommodations of that hotel, at the time he first stood at its office counter, is so overwhelmingly established by the proof, as to exclude every other conclusion.

He testifies for hims'elf, that when the clerk said he would take his name, “I says: ‘Yery well, I have been eating something and do not care about retiring now. I will be back in perhaps half an hour.’” He then passed out, went to the “Turf Exchange,” and remained until 5 o’clock. His friend and witness, Mullen, testifies that the clerk asked him (Wiatt) if he wanted' to go to bed now, and he said, “No, not right now; I want to leave some money here, and will be back after awhile.” His witness, Scott, testifies: “ The clerk, knowing I was a bell-boy, he called me .over and said take this gentleman to a room. Mr. Wiatt said, ‘Not just now; I am going out.’”

What was he there for? To the suggestion that he may have been prospecting for lodgings in advance gf his actual needs, the obvious answers are (1) he does not say so, and (2) he conclusively silences all cavil upon this question by his statement: “So I had considered the matter before I left my place of business, that I would stop at .the Hotel Emery. I had no intention of going home that night.”

He had already, it' seems, unconditionally selected his lodgings. He was no stranger at that hotel.’ He had been a frequent day guest of the house. He testifies, in chief:

“ I have been a patron of the Hotel Emery for. four years or over.”

This leads us to the further vital inquiry: Why did he go to that hotel in advance of his actual present need of the entertainment and accommodations which it was prepared to afford its guests ?

There is one answer, and only one, to be found in the proof to this question.

Wiatt testifies, that after he had delivered his package of money to the clerk and received the check for it, “ I then passed out through the west end .of the Arcade. Some question was asked me by my friend (Mullen), and I says I was going up as far as Mr. Wallace’s — the Turf Exchange.” He further says, on cross-examination :

“ I left this money at the hotel as a safeguard. •
Q. Because you did not want to carry it around ? A. Yes, sir.
Q. You left the money there simply for safe-keeping ? A. No, sir; I didn’t.
Q. What was your object in leaving it there? A. I left, it there as a guest of the hotel.”

This answer involves the statement of no substantive fact. It is a mere conclusion. It assumes the principal fact in controversy — that the witness was a guest of the hotel. It involves no contradiction of any fact which the proof tends to establish. Immediately following this answer is the “ Question. Why-did you leave it .there? A. I left it there, not wanting to carry it on my person that time in the night.

Q. You left it there and you expected to go out around the city? A. No, sir; I didn’t expect to go; if I had found agreeable friends in the hotel, I should have perhaps stayed there and smoked, and perhaps not went out at all.”

There is much force in the following observation of counsel for plaintiff in error concerning this answer:

“ This ,is no't sustained by other parts of his testimony. He came there with Mullen, with whom he had been eating oysters and drinking beer, and who had been in the habit of partly going hoihe with him from three to five times a week, and who accompanied him when he left the hotel. Mullen must have been an agreeable friend, else he would not have been so much in his company, and his alleged excuse for not staying at the hotel is untenable.”

It is a conclusive answer, however, to the claim that this statement of Wiatt is in conflict with the other proof, to say that at best it is a statement of his own secret intentions, wholly undisclosed to the hotel company, through its clerk or otherwise, and in sharp collision with every act and word of his at the time he left his money with such clerk. It is mere speculation, on the witness stand, upon what “perhaps” might have, but did not, happen at the time of the deposit of his money. The facts made known to the clerk, the conduct and language of Wiatt in his presence with the other facts which transpired at the time, made it his plain duty to refuse to receive the money, and it was beyond his power to bind the proprietor of the hotel by its receipt.

But Wiatt further testifies, as we have seen : “After attending to my business, it being rather late, and the neighborhood being rather a disreputable one, ... I did not care to carry this amount of money with me, and go home and not find anybody there,” etc.

Mullen says that he (W.) said to the clerk: “ I want to leave some money here, and will be back after awhile. . '. . He said that he did n’t want to go to bed now, and the clerk said, I will reserve you a room; and then Mr. Wiatt said, ‘Here, I want you to take care of this,’ and took out his money.”

The one answer to the inquiry, as to the purpose of his first visit at that hotel at 2 o’clock in the morning is: He sought it as a safe depository for his money, that he might be free to follow the promptings of his own' will and pleasure for the balance of that night with no risk of its loss. This is the only rational conclusion from the testimony, and furnishes the true solution of his failure to register, of the absence of his name from all the books of the hotel; of the fact that no room was assigned him ; that he did not insist upon having a room assigned ; that he did not ask or desire to be shown to a room; that it was after 5 o’clock in the morning when he returned to the hotel; and to all that transpired during his first visit there.

Innkeepers are not liable as such for goods deposited with them by any but guests of their inns. While an individual proprietor of an inn may incur a liability as bailee for the safe keeping of goods which he has voluntarily undertaken to keep for others than guests, it is not within the course of employment of a mere clerk of such innkeeper to receive on deposit the goods of any except guests of the inn, and if he does so, it is a transaction between him and the owner, and no liability for the loss of such goods attaches to the innkeeper.

It will be observed that we have confined the consideration of this branch of the case to the simple question : Was Wiatt a guest of Hotel Emery at the time of the deposit of his money with its clerk? If he was a guest at that time, his subsequent conduct did not dissolve or affect the relation existing at the time of such deposit. If that relation did not exist at that time, his subsequent conduct could not create it; although, if the direct evidence upon that issue had been involved in conflict, it would have been proper to consider such subsequent conduct in determining the actual relation of the parties at the time of such deposit.

As the evidence did not fairly tend to prove Wiatt a guest of the hotel at the time of the deposit of his money, there was error in rendering judgment for him, and in overruling the motion for new trial.

Judgment reversed and cause remanded.


source: Caselaw Access Project

author: Minsiiall J.

license: Public Domain

text:
    Pelton v. Bemis.

      Revised Statutes, Sec. 5848 — Action to recover bach illegal assessment— Pleading — Averment of legal conclusion — Limitation of action — Assessment in installments.

    1. In an action brought under section 5848, of the Revised Statutes, to recover back an assessment that has been collected, on the ground that it ■was illegally assessed, it is not sufficient to aver that the assessment is illegal and void, such averment being simply a legal conclusion; the facts must be stated so that the court may judge whether or not the same is illegal and void.
    2. When, for the purpose of collection, an assessment is divided into two or more installments, payable annually or otherwise, the limitation of time in which the action can be brought, as provided in said section, begins to run against such installment from the time of its collection, and not from the collection of the last installment.
    Error to the District Court of Cuyahoga county.

      The plaintiff below, Fred. C. Bemis, commenced his action in the court of common pleas, under sections 5848 and 5850 of the Revised Statutes, to recover back certain assessments upon his property that he had paid to the defendant as treasurer of the county. The petition, containing a cause of action for each payment (four in all),'was filed June 24, 1879. The averments of the first cause of action are as follows:
    “The plaintiff alleges:
    “ 1. That during the years 1876, 1877, and 1878, the defendant, Frederick W. Pelton, was treasurer of Cuyahoga county, and the plaintiff was and still is the owner of sub-lots 29, 30, and 31, of Nicola and Judson’s allotment of a part of original lot 328, all of which lots have a frontage and are situated on Kinsman street, in the city of Cleveland, county and state aforesaid.
    “ 2. That on the fifth day of September, a. d. 1876, the city of Cleveland, a municipal corporation under the laws of the State of Ohio, by the passage of a so-called ordinance by the city council of said city, caused a special as-' sessment for the grading, draining, paving, and improving of Kinsman street, in said city of Cleveland, to be made and levied upon all of the aforesaid lots, in the total sum of nine hundred and eighty-two dollars and five cents ($982.05), payable in five annual installments to the treasurer of Cuyahoga county, the first installment payable 'on or before the 20th day of December, a. d, 1876, and one installment annually thereafter until all should be paid; and that said city of Cleveland caused and procured said special assessment to be entered upon the general duplicate for the collection of taxes in and for said county of Cuyahoga.
    “And this plaintiff further alleges and avers that said special assessment, so made, levied, and entered upon said^ general duplicate as aforesaid, was and is wholly illegal and void.
    “3. This plaintiff further says that on the 8th day of November, a. d. 1876, the defendant, Frederick W. Pelton, then treasurer of Cuyahoga county, at his office in said city of Cleveland, refused to receive from said plaintiff the state, county, and city taxes, exclusive of said special assessment, charged on the duplicate against the aforesaid lots of this plaintiff, and thereby illegally and wrongfully forced and compelled this plaintiff to pay to said defendant, and this plaintiff did, then and there, under said force and compulsion, in order to save the aforesaid lots from being returned as delinquent and sold, pay to said defendant the sum of $98.20, the said sum being the first half of the first installment claimed to be due upon said special assessment, so as aforesaid made, levied and entered upon said duplicate.
    “And this plaintiff further says that at the time of making the aforesaid payment to said defendant ho entered his solemn protest against the payment of the same.”
    The second cause of action is substantially as the first, except that the payment was made June 15,1877.
    The third cause of action was substantially as the first, except that the assessment was for the sum of $1,309.40, and covered an additional lot, and the installment of $130.94 sought to be recovered back was paid January 18, 1878.
    The fourth cause was substantially as the last, except that the installment $98.20 was paid on the 24th of June, 1878, just within the year prior to the commencement of the action.
    The defendant demurred separately to each cause of action, on the ground that it did not state facts sufficient to constitute a cause of action; and, finally, upon the same ground, to the entire petition.
    The court sustained the demurrer to the first, second, and third, and overruled it as to the fourth cause of action ; and there being neither amendment nor further pleading, judgment was rendered for the defendant upon the first three causes of action, and against him for the sum of $98.20 on the last one.
    On error, the district court of the county affirmed the judgment of the common pleas on each cause of action. And this proceeding is now prosecuted in this court on the petition of defendant below to reverse the judgment against him upon the fourth cause of action ; and by the plaintiff below upon a cross-petition to reverse the judgment against him upon the first three causes of action.
    The demurrer to the first three causes of action was sustained on the ground that each one was barred by the limitation contained in section 5848 of the Revised Statutes, to wit, one year from the payment of the assessment. And this is assigned for error by the plaintiff below upon his cross-petition.
    The plaintiff in error' claims that, (1) it does not sufficiently appear in the petition that .the assessment was illegal, and (2) the petition does not show an involuntary payment ; and for these reasons asks that the judgment against him be reversed.

      Kain, Sherwood § Bunts, for plaintiff in error.
    It does not sufficiently appear in the petition that the assessment was illegal.
    The petition simply asserts a conclusion of law.
    Whether or not the assessment was illegal and void was the very essence of the action, and was for the court to determine from facts, alleged or proved.
    ' The right to recover depended chiefly upon whether or not the tax was illegal, and the court erred in taking for granted upon an allegation of plaintiffs, the very matter Which it was its duty to determine from facts presented.
    “ Matter of law is never matter to be alleged m pleading. No issue can be framed upon an allegation as to the law. Facts only are pleadable, and upon them without allegation the courts pronounce and apply the law. This is true alike in respect to statutes and to the common law.” Pomeroy’s Remedies and Remedial Rights, § 530; People v. Commissioners, etc., 54 N. Y. 276-279; Commonwealth v. Cook, 8 Bush, 220-224; Clark v. Lineberger, 44 Ind. 223, 228, 229; Peterson v. Roach, 32 Ohio St. 374; Railroad Co. v. Moore, 33 Ohio St. 384.

      James Fitch and John F. Fnsign, for defendant in error.
    It is not claimed by the plaintiff in error, and it nowhere appears in the record that any question as to the sufficiency of the averment in plaintiff's petition as to the illegality of the assessment, was in fact raised by the defendant below, or that the question was considered, passed upon ordetermined.
    •Questions as to the sufficiency of the averments in pleadings can only be raised by motion to make definite and certain, or to strike out, and not by demurrer, and if the defect in the statement of facts does not amount to a want of a cause of action, or defense, but the facts or the ultimate fact can be resolved into, or, if well stated, would constitute a valid cause of action or defense, a demurrer is not proper, but a motion to make definite and certain is the proper mode of objecting. Pom. Rem., § 549; Bliss Code Pl., §213; School Sec. 16 v. Odlin, 8 Ohio St. 293, 297; Schrock v. Cleveland, 29 Ohio St. 499; Union Bank of Massilon v. Bell, 14 Ohio St. 208; Swan’s Pl. 153-157; Thompson v. Cook, 21 Iowa, 472; Gilmore v. Norton, 10 Kan. 491.
    The averment in the petition, that, “ said special assessment, so made, levied and entered upon said general duplicate as aforesaid, was and is wholly illegal and void,” is not merely a conclusion of law. Although it is a conclusion from certain other facts not represented, it is, nevertheless, an averment of a fact. Ithas some of the elements of fact in it; it is a statement of an ultimate fact, or of an admitted fact, or it may be a statement of a fact judicially determined by a court of competent jurisdiction.
    There can be no doubt that if the plaintiff' in error had answered that averment in the court of common pleas by a general denial, proof could have been offered of the illegality of the assessment under the issue as thus made up, and the plaintiff in error would have thereby waived any objection as to the sufficiency of the averment. So by filing his demurrer he has waived any objection that he might have made to the averment by motion.
    The authorities cited by counsel for plaintiff in error in support of his proposition that the averment of the petition as to the illegality of the assessment, is a conclusion oflaw, decide that a demurrer to a pleading admits facts only which are well pleaded, and not mere conclusions of law. We do not dispute the authority of those cases at all, but whether or not his demurrer admits the truth of the allegation in the petition, it certainly stands admitted by his failure to answer and deny it.
    That such an allegation is an averment of fact, see Higgins v. Pelton, 4 Cin. L. Bull. 751; Bates Pl. & Pr. 132.
    There are several exceptions to the general rule thatfacts and not conclusions of law must be averred. Code of Civil Procedure of 1853, §§ 121, 122, 124, 558.
    So the act of 1856, under which this action was brought, having been passed after the code was adopted, provided a special remedy for relief against illegal taxes and assessments. And we think that act, if fairly construed, authorizes an action of this character to be maintained by averring and showing two facts: (1) That the tax or assessment is illegal; and, (2) That it has been collected by those authorized by law to make the collection of such taxes or assessments.
    If illegal taxes or assessments can be collected, then it seems proper to aver in a petition that such taxes or assessments are illegal, and have been collected.
   Minsiiall J.

It is claimed that an assessment is an entirety, and that the statute does not begin to run, where the assessment is divided into installments, until the payment of the last one. We are of a different opinion. It may be conceded that as respects the making of an assessment, it is to be regarded as an entirety — the sum the land should bear as its proportion of the cost of the improvement, according to benefits conferred; but it does not follow that it must be so regarded as respects the mode of collection. When, for the latter purpose, it is divided into installments, one of which is to be paid each successive year until all are paid, each is to be regarded as a separate demand; and, if the assessment itself is illegal, each involuntary payment of an installment, constitutes a wrong for which a remedy is given by an action to recover back the amount so paid, within the period of one year from the collection thereof. JBy way of illustration, the purchase-money agreed to be paid as the consideration for the conveyance of a piece of land, is, as to the consideration, an entirety; but where, by the agreement of the parties, it is divided into certain annual installments, the statute in such case begins to run as to each, from the time it becomes due aud payable. The only difference in the two cases is, that in the former the right of action arises from the collection of an installment of an illegal assessment, under circumstances which show that the payment was involuntary; and, in the latter, it arises from the omission of the purchaser to pay an installment of the purchase-money according to the terms of his agreement. The involuntary payment of that which is an illegal assessment on the lands of the plaintiff, is the gravamen of the action, whether the amount paid is the whole or but a part of the assessment. Any other construction would be uhjust to assessment payers and inconvenient to the public. The fact that the right of action is limited to a year after the “assessment” has been collected, should not, as we think, have the controlling effect claimed for it by counsel for the plaintiff below. It does no violence to the probable intention of the legislature in this regard, to say, that, in the use of the word “ assessments,” installments are included; that is where an assessment is, for the purpose of collection, divided into installments, each installment is to be regarded as an assessment. Therefore the judgment of the district court affirming the judgment of the court of common pleas upon the demurrer of the defendeut beiow to the first, second and third causes of action contained in the petition, should be and is affirmed, the action not having been commenced within a year from the payment in either case.

It remains to be considered whether the judgment rendered against the plaintiff in error upon the fourth cause of action should be reversed. We are of the opinion that it should, for the principal reason.that it does not appear as a matter of fact, that the assessment, an installment of which is sought to be recovered back, was illegal. The averment as to this, in the pleading, is simply that it was illegal and void. But this is a legal conclusion, and does not present an issue of fact. The facts from which it is claimed the illegality arises, should be stated, that the court may judge whether the assessment was illegal or not.

There are certain cases in which legal conclusions, stated in connection with certain averments of fact, have been held sufficient at least after verdict; as, for instance, an averment of indebtedness on account of goods sold and delivered, or of work and labor performed, at the request of the defendant; for the facts stated import an indebtedness. But we know of no case, and certainly none has been cited, that has gone to the length of holding that an averment that the defendant is indebted to the plaintiff, would support a recovery in any instance; and yet such an averment is no more purely a question of law, than an averment that an assessment is illegal and void. The rule of pleading with its distinctions in this regard, is treated by Bliss in his work on Code Pleading, at § 213 and § 334, which see with the cases cited by the author; also Pom. Rem., § 530, and the cases cited in the note thereto.

It is claimed by counsel'for the defendant in error that this question was not made below. However this may be, it is made by the demurrer to the cause of action on which the judgment was rendered against the plaintiff in error; is now insisted on by his counsel, and, being an error apparent on the record and assigned for error, can not be disregarded by this court on the statement of counsel that it was not insisted on below. Judgment must be given upon and not against the record.

As to the point that the petition does not show an involuntary payment, there is an unresolved doubt in the minds of the court. "Whether the only compulsion to which the plaintiff was subjected, was that unless he paid his taxes proper, his lots would be returned delinquent and sold, and thereby, and for no other reason, he was compelled to pay the assessment, is not clear. If it were clear that this is the proper, construction of the pleading, then a doubt arises as to whether a payment made under such circumstances only would amount to an involuntary one. But inasmuch as the judgment must be reversed and cause remanded for further proceedings for the reason already given, it is not deemed advisable to pass on the question in the form presented.

Judgment affirmed upon the first three causes of action; and reversed upon the fourth, and cause remanded to the court of ■ common pleas for further proceedings


author: Spear, J.

text:
    Wagner v. Ziegler.

      jSill of Exceptions — Signed by but one of three judges— When court may dived verdict in contest of will.

    1. A paper purporting to be a bill of exceptions, signed by one judge - only of the three judges holding the district court, will not be.considered as part of the record, although the journal entry iu t,he case recites that a bill of exceptions is presented, which, being found by the court to be true, is allowed, signed, sealed, and made part of the record) and no other paper purporting to be a bill of exceptions appears in the files in the case. Shillito v. Thacker, 43 Ohio St. 63, approved and followed.

      2. In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiffs' testimony, to direct the jury to find a verdict sustaining the will.
    Erp„or to the District Court of Auglaize county.
    The action below was to contest the will of Frederick "W. Ziegler, and was commenced by the filing by the plaintiffs in error of a petition, as follows:
    “ Sophia Wagner and William Ziegler, plaintiffs, against Charlotte Ziegler, Margareta Ziegler, Rieka Ziegler, Mary Ziegler, Freddie Ziegler, Louisa Vossler, Mollie Ziegler, Emma Ziegler, William Steinkamp, Christian Steinkamp, Sr.,Dr. Christian Steinkamp, Jr.,William Cordis (orKores), Louis Cordis (or Kores), and Edward Purpus, executor of F.W. Ziegler, deceased, defendants. State of Ohio, Auglaize county, ss. Court of common pleas. Civil action. Petition. Said Sophia Wagner, one of said plaintiffs, says that she is a married woman, wife of Peter Wagner, and that this action concerns her separate estate.
    “Said plaintiffs, Sophia Wagner and William Ziegler, respectfully represent that on or about the 13th day of April, 1880, one Fred. W. Ziegler, then a resident of New Bremen, in said county of Auglaize, died testate, leaving a last will and testament of that date, which will was, on the 19th day of May, 1880, duly probated in the probate court of Auglaize county, Ohio; a copy of said will, etc., is hereto attached, marked “A,” and made a part hereof.
    “Said F. W. Ziegler died, leaving the following’ named persons, his widow and heirs at law, to wit: Charlotte Ziegler, widow, residing at New Bremen, Auglaize county, Ohio. Heirs at law, said plaintiffs and Margaret Ziegler, widow, and Rieka Ziegler, Mary Ziegler and Freddie Ziegler, heirs of Henry Ziegler, deceased, residing in the state of Alabama; Louisa Vossler, wife of Michael Vossler, residing in Auglaize county, Ohio, and Mollie Ziegler and Emma Ziegler, of the same place. The following named persons are the legatees of said will, to wit: Wilhelmina Steinkamp, Christian Steinkamp, Sr., Christian Steinkamp, Jr., William Cordis (or Kores), and Louis Cordis (or Kores), all residing in Hamilton county, Ohio. Said Edward Purpus, of Auglaize county, Ohio, is the duly qualified and acting executor of said deceased Fred. ~W. Ziegler. Said F. W. Ziegler died seized in fee of considerable real estate and the owner of some personal estate, all of which is described in said pretended will. Said plaintiffs further represent that said will so probated as aforesaid is not the last will and testament of said deceased, because at the time of execution thereof said F. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will. Said plaintiffs further say that said executor, notwithstanding the facts aforesaid, is threatening to settle and distribute the estate of said deceased in accordance with the terms of said will so as aforesaid probated. Said plaintiffs therefore' pray that said pretended will and the probate thereof may be set aside and held for naught, and that until the final hearing hereof said executor may be restrained from proceeding under said will, and for all proper relief.”
    The will referred to in the petition is as follows:
    “The last will and testament of Frederick W. Ziegler, of New Bremen, Auglaize county, Ohio. In the name of the benevolent Father of all: I, the said Frederick "W. Ziegler, being of sound and disposing mind and memory, considering the uncertainty of continuance in life, and desiring to make such disposition of my worldly estate as I deem best, do .make, publish and declare this to be my last will and testament, hereby revoking and annulling any and all former will or wills, whatsoever, by me made. First. I desire all my just debts and funeral expenses to bo paid as soon as possible after my decease. Second. I give and bequeath to my daughter Louisa, married to M. Yossler, my two lots lying in Yogalsangstown and owned at present by me, to be hers forever. Third. I desire that my sister, Wilhelmina Steinkamp, shall have my house and lot in Piqua, to be hers forever. Fourth. I give and bequeath to Christ. Steinkamp the sum of two hundred dollars. Fifth. I give and bequeath to William Kores the sum of two hundred dollars. Sixth. I give and bequeath to Louis Kores the sum of two hundred dollars. I nominate and appoint Edward Purpus to be the executor of this will. In witness whereof, I have hereunto set my hand and seal, this 13th day of April, in the, year eighteen hundred and eighty. F. W. Ziegler., [seal.]”
    Issue was joined by the filing by some of the defendants of an answer containing the following averments:
    “ Defendants admit each and every allegation set forth in plaintiffs’ petition, except the allegation ‘that said will, as probated, is not the last will and testament of said decedent, because at the time of the execution thereof said E. W. Ziegler was not of sound mind and disposing memory, and did not have sufficient mental capacity to make a will,’ which allegation the said defendants deny. The above-named defendants, further answering said petition, aver that said will, as probated, is the last will and testament of the said E. W. Ziegler, and that said E. W. Ziegler, at the time of the execution thereof, was of sound mind and disposing memory, and had sufficient mental capacity to make and execute a will.”
    A trial was had in the court of common pleas, which resulted in a verdict for the plaintiffs. From the judgment thereon rendered some of the defendants appealed to the district court, and filed in that court an appeal bond, the condition of which is as follows :
    “The condition of the above obligation is such, that whereas, Wilhelmina Steinkamp, O. Steinkamp, Jr., C. E. Steinkamp, and William Cordes, have taken an appeal from a certain judgment setting aside a will of E. W. Ziegler, rendered against them in favor of the said Sophia •'Wagner and William Ziegler in the court of common pleas within and for the county of Auglaize, in the State of Ohio, at the February term, a. d; 1882, thereof, for setting aside the will of Frederick W. Ziegler, deceased, to the district court within and for said county of Auglaize. Now, if the said Wilhelmina Steinkamp, C. Steinkamp, Jr., C. E. Steinkamp, and William Cordes shall abide and perform the order and judgment of the appellate court, and shall pay all moneys, costs, and damages which may be required .of, or awarded against, said O. Steinkamp, Jr., C. E. Steinkamp, and William Cordes, by said district court, then this obligation shall be void, otherwise in full force in law.”
    A motion was filed in the district court by the plaintiffs, to dismiss the appeal for the reason that the bond is insufficient and invalid in law, and insufficient in form and amount. This motion was heard upon evidence and overruled, to which plaintiff's excepted. Atrial to a jury followed. At the conclusion of the plaintiff’s evidence, and after argument, the court, finding there was no evidence proving or fairly tending to prove the issues on part of the plaintiffs showing incapacity of the deceased to make a will, directed the jury to find a verdict sustaining the will. Thereupon the jury returned a verdict accordingly. Motion for new trial being overruled, judgment of affirmance was entered, and costs adjudged against plaintiffs, to all which they excepted. Afterwards an entry was made on the journal to the effect that the plaintiffs present to the court their certain bill of exceptions herein, which, being found by the court to be true, is allowed, signed, sealed, and, on motion, is made part of the record of this case. The paper, called in the printed record “bill of exceptions,” purports to contain the testimony given upon the hearing of the motion to dismiss appeal and that given at the trial. It is signed and sealed by the judge who presided at the trial, but not by either of his associates.

      Von Seggern, Phares § Dewald, for plaintiffs in error.
    1. The statute governing the contest of wills is imperative that the trial must be by jury. This means that the question whether or not the paper writing presented is the last will must be determined, not by the court, but by the jury, and this whether any evidence is introduced or not. It is a question of fact which the court has no authority to determine under any circumstances.
    The court judges of the competency of the evidence, the jury of its truth, tendency, value, and sufficiency. The court will never presume to decide upon its sufficiency, however slight it may be. This is for the jury. Walker v. Walker, 14 Ohio St. 157, 176; Cooch v. Cooch, 18 Ohio, 150; Holt v. Lamb, 17 Ohio St. 375; Revised Statutes, § 5861.
    There were sufficient facts admitted by the pleadings, tending to prove the issue, to require the case to be submitted to the jury.

      2. The entry made by the court with respect to the bill of exceptions, was equivalent to a signing by the judges.
    8. The cause was brought into the district court by an insufficient appeal bond. O. F. Steinkamp, one of the'parties named in the bond as appellant, was not a party to the suit. No judgment was ever rendered against him in the case, and not being a party, judgment could not have been rendered against him in the appellate court. This being so, there could be no breach of the bond. The bond speaks for itself, and the law is that it shall so speak, and that the liability of sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond; and if the words will not make them liable, nothing can. There can be no construction, no equity against sureties. If the bond can not have effect according to its exact words, the law does not authorize the court to give it effect in some other way, in order that it may prevail. Myres v. Parker, 6 Ohio St. 501; McGovney v. State, 20 Ohio, 93.
    The bond might have been amended, but that not having been done, the appeal should have been dismissed. Revised Statutes, § 5233.

      T. IF Brolherton (with whom was B. L. W'alters), for defendants in error.
    The bill of exceptions was signed by but one of the three judges composing the court. It is provided by the Revised Statutes, § 5302: “If the exception be true . . . a majority of the judges composing the court must allow and sign it before the case proceeds.”. Hence there is no bill of exceptions, notwithstanding the journal entry. The pretended bill itself contradicts the record, and can not be considered by the court.
    As the testimony on the part of the contestants of the will is not before the court, the plaintiffs in error can rely only on the declaration of the journal entry that the court “ finding there was no evidence proving, or fairly tending to prove the issues on. part of said plaintiffs,” directed the jury to find a verdict sustaining the will.
    The reasoning of the opinions in Walker v. Walker, 14 Ohio St. 157, and Holt v. Lamb, 17 Ohio St. 375, cited by counsel for plaintiffs in error, is to the effect that the proponents of the will have the right to have a jury pass upon the validity of the will under proper instructions by the court. The contestants, not the proponents, are complaining of the directions or instructions of the court.
    When there is no evidence proving, or fairly tending to prove the issue, upon the plaintiff to establish, he having the onus probandi, in all civil cases triable to a jury, the court may, and it is its duty, on motion of defendant — the motion being in the nature of a demurrer to the evidence —to direct the verdict of the jury. Stockstill v. D. & M. R. Co., 24 Ohio St. 83; Dick v. Railroad Co., 38 Ohio St. 389; Wells L. & F., §§ 329, 527, 532; Rich v. Rich, 16 Wend. 663; Pleasants v. Fant, 22 Wall. 116.
   Spear, J.

We give attention to the questions argued by counsel so far as they are presented by the record: 1. Did the district court err in overruling the motion of the plaintiffs to dismiss the appeal? 2. Did that court err in finding that there was no evidence proving, or fairly tending to prove the issues on part of plaintiffs showing incapacity of the deceased to make a will, and in directing the jury to find a verdict sustaining the will?

As to the first: The reason urged in argument why the motion should have been sustained, is that C. F. Steinkamp, one of the parties named in the bond as appellant, was not a party to the suit. Is this shown? One of the defendants of record is Christian Steinkamp, Sr. The motion was heard upon evidence. That evidence is not before us. Notwithstanding the journal entry given in the statement of the case, the evidence contained in the paper purporting to bo a bill of exceptions, can not be examined by this court, the paper having been signed and sealed by one only of the three judges who held the district court. Shillilo v. Thacker, 43 Ohio St. 63. All presumptions are in favor of the judgment. For aught that appears, it may have been shown that the party named as C. F. Steinkamp in the bond was the identical party defendant named as Christian Steinkamp, Sr , in the petition. The middle initial is not infrequently dropped in the naming of parties, and it is not unreasonable to treat the affix of “Sr.” as a superfluity. The record discloses no error in overruling the motion to dismiss the appeal.

In support of the charge of error upon the second ground, it is insisted that there were sufficient facts admitted by the pleadings, taken in connection with the will, tending to prove the issue to require the case to be submitted to the jury. Many of the assumptions and statements of the brief are founded upon facts assumed to exist because of testimony set out in the alleged bill of exceptions. Having already found that we have no bill of exceptions in the record, it would be a needless use of space to consider them. As to the allegations of the petition taken with the will, the court below was of opinion that they furnished no evidence tending to show incapacity on part of the deceased. We do not deem it necessary to take time with this point more than to say that we agree with the district court in that view. And having found, on conclusion of plaintiffs’ testimony, that there still was no evidence tending to prove incapacity on part of the deceased to make a will at the time the will was made, what was the duty of the court?

It is urged that, in passing upon the sufficiency of the evidence and directing the jury to bring in a verdict sustaining the will, the court exceeded its power, and the plaintiffs were thereby deprived of their statutory right to a trial by jury. In other words the claim is, that whatever the state of the proof — however completely the plaintiff fails to make the slightest prima facie case — yet the court must, perforce, send the case to the jury, omitting the usual and ordinary instructions which, in other eases, under like circumstances, would be given. The statute, in regard to the contest of wills in force at the time of the trial below, Revised Statutes, sec. 5861, and following, provides that an issue shall be made up, whether the writing produced is. the last will of the testator or not, which shall be tried by a jury; and, unless a new trial be granted, or the cause appealed, the verdict shall be conclusive, and the court shall enter judgment thereon; that, on the trial, the order of probate shall be prima fade evidence of the due attestation, execution, and validity of the will ; that the party sustaining the will, shall be entitled to open and close the evidence and argument — he shall offer the will and probate, and rest. The opposite party shall then offer his evidence. The party sustaining the will shall then offer his other evidence; and rebutting evidence shall be offered as in other cases. An appeal maybe had to the district court; and that court shall direct the issue tried in the court below to be re-tried in that court in the same manner.

The court may not dispose of the case by a decree, nor by a judgment rendered for mere insufficiency of pleading. There must be a jury trial, if the case proceeds at all. But is the jury trial necessarily other than the common law trial by jury ? We look in vain, in the brief tendered, for any satisfactory reason why it should be. The statement is, that the court judges of the competency of the evidence, the jury of its truth, tendency, value, and sufficiency. But why? In other jury trials, the court judges not only of the competency of testimony offered, but, when it is all in, whether any evidence has been given tending to sustain, the claim of the party, upon whom the burden is. Iu contests of wills, manifestly, the burden is on the plaintiffs. By the introduction of the will, and order of probate, a prima facie case has been made against them. Suppose they offer no testimony at all, wouhTnot the plain duty of the court be to so say to the jury ? And, if so, why not take the next step, .and say that, under such circumstances, it would be their duty to find in favor of the will? And upon what principle is it that testimony, which does not tend to support the issue at all, is of more force in law than no testimony ?

The language of the opinion in Walker v. Walker, 14 Ohio St. 157, is cited. Speaking of trial by jury, Brinkerhoff, J., on page 176, says that “ this provision of the statute is imperative in its terms, and we have reason to believe that it was deliberately enacted with a view to prevent a disposition of cases for the contest of wills upon the mere consent or acquiescence of parties in any form.” This language, and the statute as well, may properly be read in the light of our knowledge of the mischief sought to be remedied, which was, speaking from tradition and history, a tendency to procure the setting aside of wills by consent decrees in chancery. The first statute upon the subject provided that, when the widow or person of kin appeared to contest the will, the court should take cognizance thereof and grant proceedings thereon accoi'ding to law. This furnished an easy mode of disregarding the expressed wish and purpose of the dead testator, and necessitated a change incorporating, as a requirement, trial by jury, as in the present statute. This statute, taken as a whole, negatives any idea that the legislature intended to encourage the setting aside of wills; quite a contrary purpose is manifest. No argument can be needed to sustain this view; a bare reading of the statute abundantly supports it. And we venture the statement that the predominating idea is, that wills, which have been duly admitted to probate and record in the probate court, shall not be set aside by mere consent of parties. The affirmance of the will but leaves the parties where they were before suit commenced. The judgment of the probate court is binding until a verdict sets its order aside. -

But the controlling'feature of the case cited, as applied to the case under consideration, is found in the third paragraph of the syllabus, which is: “In a proceeding under the statute to contest the validity of a will, it is error to render final judgment on demurrer to an answer. An issue must be made up and tried by a jury, under proper instructions by the court.” We emphasize: “ Under proper instructions by the court.” “Proper instructions” are such as the law of the case, and the testimony before the jury, make pertinent. It is difficult to see how this case of Walker v. Walker gives any color to the idea, that the statute is intended to dethrone the court and make the jury supreme. The statute provides the order in which the testimony shall be introduced, gives legal effect to the will and order of probate, and requires the case to be submitted to the jury. In other respects the ferial is to be conducted as other jury trials are conducted ; and it is the duty of the court in that case, as in other cases; to give proper instructions to thejury. And it may well be treated, not as having effect to enlarge the rights of the parties during trial, but as furnishing a rule of procedure only.

There are other assignments of error, but they are disposed of by the disposition of those herein considered. We find no error in the record.

Judgment affirmed.


author: Johnson, J.

text:
    Davis v. Gelhaus.

      Partnership — Conversion of township funds by partner — Liability of firm — Accounting between partners.

    Davis and Gelhaus were partners in business for a series of years. Durii the same time Davis was township treasurer, and was in the receipt of the public funds of the township. With the knowledge, consent and approval of Gelhaus, Davis deposited the greater portion of these funds in bank, to the firm’s credit, in common with the private funds of the partnership, and from time to time debts of the firm, as well as debts due upon orders drawn on the treasury, were indiscriminately paid by the firm’s check on this deposit. In 18T9 the partnership was dissolved, and by mutual consent Davis purchased the stock of goods on hand, and took the notes and accounts receivable to be collected, and out of assets arising from such purchase, and out of collections, he was to pay all partnership liabilities. In a schedule of such liabilities there was over $6,000 due the township which Davis paid before the hearing in the court below. The books of the firm showed that no attempt was made to treat this deposit of public moneys otherwise than as partnership moneys, and they were used as a common fund, subject only to partnership check. Held:

    1. That such deposit and use of the public moneys by Davis, as treasurer, was in violation of section 15 of “ an act to establish the independent treasury of the State of Ohio” (2 S. & C. 1606), it being a conversion of the public moneys to the use of the partnership of which he was a member.
    2. That Gelhaus having, with full knowledge, consented and approved of this mode of doing business, and having participated in such acts, is, in law, alike guilty with Davis in such unlawful conversion of public money.
    3. That the partnership was liable to the public authorities for the money thus converted.
    That they areparliceps criminis in this transaction, and the law will aid neither as against the other, but will leave them where it finds them. Neither is entitled to relief as against the other, by contribution or otherwise. Upon a dissolution of the partnership, under an agreement that Davis should take all the assets and pay all the partnership liabilities, and account to Gelhaus for one-half the surplus, he paid this liability to the township partly out of partnership assets and partly out of his own individual means which he advanced, leaving a large balance in his favor, the assets being insufficient for that purpose. This consummated the illegal transaction, and he has no right of contribution from V Gelhaus for the money so advanced.
    5. That Gelhaus being liable as a partner to the township for the illegal conversion of the money, and having parted with all his interest in the partnership by the contract of dissolution, reserving only a right to one-half the surplus, is not entitled to an account which rejects the payments made by Davis. The law leaves him where it finds him, with the right only to an account for surplus remaining after crediting Davis with amounts paid on this illegal transaction.
    Error to the District Court of Hardin county.
    August 5, 1880, Gelhaus, who was plaintiff below, filed a petition, stating that about May 1, 1865, he and Davis entered into a partnership and engaged in the grocery business during such period as they might thereafter agree on, and so continued by mutual consent as such partners until February 9, 1880, when, by like consent, said firm was dissolved. Davis was to take the stock then on hand, collect the assets due the firm, and pay its debts, and from time to time render accounts of his proceedings, and on final adjustment should pay over to Gelhaus one-half (they being equal partners) of what was left after satisfying all partnership liabilities.
    In pursuance of this agreement Davis became the sole owner of the stock then on hand as per invoice, together with all other assets, for the purpose of winding up the partnership. He charges that no statements have ever been made, either before or since the dissolution, of the condition of the firm, and that Davis refuses to make a settlement with him of said partnership business Also that the business during fifteen years was largely profitable. He prays that an account bo taken, and that on final hearing Davis bo compelled to pay over to the plaintiff whatever may be found due him.
    On September 29, 1880, Davis answered, denying that the business had been largely profitable, and denying that ho had refused to render statements to his co-partner.
    He sets out the agreement of dissolution by which he was to take the stock on hand at the invoice, the notes and accounts due, and convert the same into money and pay off the partnership liabilities as far as they would go.
    He attaches several exhibits, showing the condition of things at the time of the dissolution, and also notes and accounts collected on firm account, and the liabilities of the firm paid since February 9,1880.
    Among these is Exhibit “0,” which he avers contains a true statement of the liabilities of the firm at the date of dissolution, amounting to $9,830.24; of this amount $6,-893.22 are alleged to be liabilities of the firm as public moneys belonging to Pleasant township, Hardin county.
    Between the time of dissolution, February 9th, Davis had paid of these public moneys sufficient to leave a balanee of $5,424.70 at the date of filing his answer, to wit, September 29, 1880. G-elhaus died October 4,-1880, and Curtis Wilkin was appointed his administrator, and on the 6th of January, 1881, filed a reply stating that he has no knowledge of the matter set up in the answer, and therefore denies each allegation thereof, except as to the existence of the firm and the agreement for dissolution. He repeats the prayer for an account and for other and further relief.
    The case was then referred to a master to hear the evidence and to report his findings of law and fact to the court. The real and only matter in controversy, as shown by the proceedings, is as to whether the debt due Pleasant township was a partnership liability or the individual liability of Davis. At the time the case was heard in the common pleas, Davis had paid all liabilities, amounting to $9,709.30, which included the amount due to the treasurer of Pleasant township. The common pleas found that this liability to Pleasant township was a partnership liability, and that its payment by Davis came within the terms of the agreement of dissolution, which authorized him to pay all partnership liabilities of the firm, and that, as such liability had been paid by him, he was entitled to a credit therefor the same as for any other liability of the firm.
    Wilkin, as administrator, took an appeal to the district court, where the judgment of the common pleas was reversed, holding that as to these public moneys owing to Pleasant township, they were not partnership liabilities, and the court refused to give him credit for the amount paid in satisfaction of them after dissolution, and struck from his credits numerous orders paid on account of the firm before his answer, and refused to allow him credit for the residue owiug to the township, which he had paid before the hearing in the common pleas.
    As to the amount of “firm liabilities as set out in second defense of answer of defendant, $5,424.70, alleged to be due the defendant as treasurer of Pleasant township of said county, the court do find that during the entire period of said partnership, Archibald M. Davis was the treasurer of Pleasant township, in said couutjr, and of the incorporated village of Kenton, during the greater part of said time. That during said partnership, and from September, 1865, to the dissolution thereof in 1880, said Archibald M. Davis, as treasurer as aforesaid, did receive of said public money the sum of $171,178.56, and during said period did disburse thereof $164,752.57, leaving a balance due said corporation and township, at the date of dissolution of said firm, of $6,415.99.
    “ That from February 17, 1869, to the dissolution of said firm in 1880, said Archibald M. Davis did deposit of said public moneys received as aforesaid, in bank, to the credit of the firm of Davis & Gelhaus, the sum of $155,285.05. That no separate accouut was kept in bank of the public moneys so deposited, but the same was carried into and made a part of the bank account of the firm of Davis & Gelhaus. That it was the custom of the said Archibald M. Davis to pay corporation and township orders, the amount not being shown by the evidence, from the money he drew and received as aforesaid; and, after such payment, to deposit the balance remaining in bank to the credit of Davis & Gelhaus.
    “ That no partnership account was kept with Archibald M. Davis showing the amount of moneys which the firm received from the said Archibald M. Davis as treasurer, except as the same appeared in the hank pass-books.
    “ That August Gelhaus knew that said Archibald M. Davis was depositing the public moneys aforesaid to the credit of the firm of Davis & Gelhaus in bank, and made no objection to the same, but on the contrary was a party to and approved the same.
    “ That, at the time of the dissolution of said firm, state, ments were made of the liabilities of said firm of Davis & Gelhaus, and said statements contained, among other liabilities, the balance due from Archibald M. Davis as treasurer as aforesaid, to said corporation and township at date of the dissolution of said firm, Exhibit ‘ 0/ in defendant’s answer, being a copy thereof; and that said statements were furnished to each of the members of said firm, and no objection made thereto until the bringing of this suit. That at the dissolution of said firm there was a balance in bank to the credit of said firm (being the bank where said public moneys were deposited as aforesaid) of $760.08, all except said sum being checked out.
    “That the proof fails to show what was done with said sum of $155,285.05 of public moneys so deposited as aforesaid, except that the same, as well as all firm deposits, had been checked out of bank (except said balance of $760.08) at the date of the dissolution of said firm. That the conclusion from the foregoing is, that in the absence of proof as to what was done with the said $155,285.05 of public moneys deposited as aforesaid, that the said Archibald M. Davis, as treasurer as aforesaid, performed his duty, and paid the same out according to law; and that no part of the said, moneys were used by said firm, and that no firm liability has been established as to said public moneys above specified.
    “That since the commencement of this action the said defendant, Archibald M. Davis, has paid the amount due said township of Pleasant, and said incorporated village of Kenton. And thereupon came the said defendant, Archibald M. Davis, and excepted to the findings of the court and filed his motion herein to set aside said findings and grant a new trial herein; and the court, having heard said motion for a new trial, do overrule the same, to which ruling the said defendant then and there excepted.”
    Judgment was accordingly rendered against Davis for the amount of public moneys so paid by him, on the theory that this liability to the township was not a partnership liability, and that he alone was liable to the township, etc.

      John McCauley, Henry W. Seney, and George E. Seney, for plaintiff in error.

      A. Blackford, and Stillings ft Allen, for defendant in error.
   Johnson, J.

The sole question in the case is, whether, upon the facts found by the district court, Davis was entitled to credit for the payment in full of the amount of public money which the firm books showed was then due the corporation and township, to wit, $6,415.99, or whether that amount so paid should be eliminated from the partnership liabilities. It is found that from February 17,1869, said Davis, as treasurer, did deposit said public moneys in bank, to the credit of the firm, the sum of $155,285.05; that no separate account was kept in bank or by the firm of the public moneys so deposited, and that no partnership account was kept with Davis as treasurer of the amount, which the firm received from him as treasurer, except as the same appeared in the bank pass-books. It is a significant fact, found by the court, that while Davis was depositing these public moneys to the credit of the firm, Gelhaus made no objection to such deposit, but on the contrary, was a party to and approved the same. This made both members of the firm personally liable in the transaction. The public moneys so deposited, as well as the partnership moneys, were by the act of the parties mixed together and the findings show that the bank account of the firm was subject to check to pay private or public demands. It is further found that, at the time of dissolution, a statement was made of firm liabilities which, among other liabilities, showed the balance which the firm owed to Davis as treasurer at the date of such dissolution, and that such statement, of which Exhibit “C” is a copy, was furnished to Gelhaus, who made no objections thereto until the bringing of this suit. I may add that, in the petition filed in this ease, no objection was made to the assets of the firm being used to satisfy the demands due the township and corporation, nor does it appear that any objection was ever made, to this mode of doing business, but that it was approved by Gelhaus. Both parties concurred in depositing the public moneys in bank to the credit of the firm.

It was thereby converted to its use. It was mixed with deposits of the firm. It was subject only to check in the firm name. In all respects it was treated by the parties as partnership moneys, out of which the partnership paid orders drawn upon Davis as treasurer. This credit to the firm on the books of the bank, became the common credit of the firm and the township. All this was with the knowledge, consent and approval of Gelhaus. The presumption held by the district court to exist, that no part of said funds were used by the firm, and that no firm liability existed, is at variance with the facts found, and the law of the case. These facts made the partnership liable to the township for money had and received.

This was a loan by the treasurer to his firm, approved bj^ Gelhaus.

It does not appear that Davis was using these moneys for his individual gain, but with the consent of his co-partner they were loaned to the firm. For- a long series of years these moneys had thus been at the disposal of the firm. Davis received no credit for them on the partnership books. Gelhaus seems to have regarded these public moneys as partnership liabilities, during the many years they were so deposited to the credit of the firm. He certainly so regarded them at the time of dissolution. He stipulated that Davis should take all the assets and pay all the partnership liabilities. At the same time he received a copy of the schedule of such liabilities, which included the amount due the corporation and township.

That each of these partners were equally guilty in the eye of the law for embezzling the public money is clear. See section 15 of an act, “ To establish the independent treasury of the State of Ohio” (2 S. & C, 1610).

This section, which was in force at the time of this transaction, provides; “that if any officer or othei person, charged with the collection ... or disbursement of the public money . . . belongingto the state, orto any county or toionship, or organized city or village in this state, shall convert to his own use, or to the use of any other person or persons ... or party whatever, in any way whatever, or shall use by way of investment . . . or in any other manner or form whatever, or shall loan, with or without interest to any company ... or individual . . . any portion of the public money ... or in any other way or manner, or for any other purpose; or if any person shall advise, aid, or in any. manner participate in such act, every such act shall be deemed and held in law tó be an embezzlement of so much of the said moneys or other property, as aforesaid, as shall be thus converted, used, invested, loaned, deposited or paid out as aforesaid; which is hereby declared to be a high crime and misdemeanor, ’’etc.

The penalty upon conviction, subjects the person or persons to imprisonment in the penitentiary from one to twenty-one years, and to a fine equal to double the amount of money so embezzled, for the benefit of the parties in interest.

In view of the stringent provisions of this section, and of the facts found by the court, Gelhaus was guilty of advising, aiding and participating in converting to partnership uses the public moneys belonging to the township, and therefore was a particeps criminis, equally guilty with Davis and equally benefited by the transaction. Brown v. The State, 18 Ohio St. 496; Commissioners v. Bank of Findley, 32 Ohio St. 194. This section applies to township treasurers, as well as to other public officers. State v. Morton, 21 Ohio St. 669. We are thus led up to the question, what were the rights of these parties in this transaction (each being guilty of embezzlement), as against each other? At the time of the trial in the common pleas, the public demand for the money had been satisfied by Davis paying the same. It thus became a consummated transaction.

If Davis were individually liable to the public for such repayment, and Gelhaus was not, then he could not recover from the latter, for there is no contribution among wrongdoers ; so, if as a partner, he paid the money out of his own means, no contribution could be had for a like reason. The same is true of Gelhaus, each being guilty of a high crime or misdemeanor, no contract obligations between them are enforcible at law. The law leaves them where it finds them. Where does it find them in this case?

For a series of years these specific public moneys were mingled with the partnership moneys, by deposit to the credit of the firm in bank, subject only to a partnership check, with the mutual consent of both partners. Out of this deposit both the firm liabilities and the public liabilities were paid indiscriminately. When they dissolved, in 1879, Gelhaus put into the possession of Davis all the assets of the partnership, the latter bought the stock of goods at an invoice price, he took the notes and- accounts due with sole authority to collect them, and out of the money so collected, and the amount to be paid for the stock of goods, he was to pay off all the partnership liabilities, and divide the surplus equally with Gelhaus. Upon the facts in this case, there was no surplus. Davis paid off all the liabilities including the amount due the township and corporation. To do this he advanced of his own moneys some $5,600, the assets being insufficient. lie now claims contribution from Gelhaus for one-half the money so advanced. If the conversion of this money had not been in violation of the law, he would be entitled to such contribution. But as it is, he is not so entitled. The law leaves him where it finds him. For a like reason Gelhaus is not entitled to the relief he asks.- He was personally liable, jointly with Davis, to the township and corporation to restore to them the money jointly converted to their own use. He recognized this as a partnership liability during the series of years they were partners, by allowing it to be deposited in the firm name in bank, and by allowing it to be drawn on from time to time to pay orders on his co-partner as treasurer. At the time of dissolution, it was stipulated that Davis should pay all partnership liabilities, and he then received a schedule of the same, the greater part of which embraced these public moneys owing to the township and corporation. The law will leave him where it finds him. He had delivered all the assets to Davis. The stock of goods Davis owned absolutely by purchase, the notes and accounts due, he had possession of by agreement of the parties. All that he was liable to Gelhaus for, was one-half of the surplus, after paying partnership liabilities. As there was no surplus, there is no liability of Davis. Gelhaus can not be relieved from the payment of his share of this liability to the public which Davis had actually paid out of the fii’m assets. If there had been a surplus, his right to one-half is clear, but as there was none, the law leaves him where it finds him, as well as it does Davis. It finds the illegal transaction consummated, and neither party can disturb it. It finds Davis to have advanced money to discharge the partnership obligations to the township and corporation, and a large amount of worthless assets in his possession. It will leave him there.

Therefore, the court of common pleas was in error in allowing Davis contribution from his co-partner. It finds Gelhaus with no right to question what has been done under this illegal transaction. Davis, in paying off his public liability, has consummated the illegal transaction, and Gelhaus can not obtain affirmative relief by now repudiating the arrangement on his part. The district court, therefore, erred in opening up this consummated illegal transaction by throwing out of the credits in favor of Davis the amount he paid to discharge this partnership liability, and in dividing the uncollected assets in specie. These assets were entrusted to him by contract, to be collected and accounted for. It does not appear that he has violated that trust. If, hereafter, enough is collected to reimburse him, and leave a surplus, he is liable to his copartner for his share thereof. Our conclusion is, that upon the present state of facts, neither partner lias a right to recover of the other any money judgment. And that Davis is entitled to these uncollected assets to be accounted for under their contract of dissolution, counting the payment by him of the balance due for money advanced to pay the public as a partnership liability for the purpose of ascertaining if there is a surplus to be divided. 1 Colyer on Partn., §§ 56 to 65, and notes.

Judgment reversed and cause remanded.