author: Eollett, J.

text:
    Adams v. Young.

      Negligence — Remote andproximate cause — Fire spreading to other building.

    1. Where fire is negligently thrown from a mill smoke stack and carried to a building outside the mill property, and thence to another building of a third party, and thence to other property that is damaged by the fire; whether such negligence is the proximate cause of such damage, is a question of fact for the determination of the jury under the instructions of the court.
    2. In an action against a mill owner for damages to property caused by fire negligently or carelessly thrown by sparks from the smoke stack of the mill and carried to the property by a gale of wind blowing at the time in the direction of the property, by which fire the same was damaged; where the conditions continue the same as when the negligent and careless act was done, and no new cause intervenes, it is no defense that the fire first burned an intervening building and was thence communicated by sparks and cinders in the same manner to the building in which such fire consumed the property; though the buildings were separated by a space of two hundred feet.
    Error to the District Court of Mercer county.
    Isaac W. Young brought suit before a justice of the peace for $299.97, for household and kitchen furniture destroyed by the burning of his family residence in the town of Macedón, in Mercer county. On appeal Young averred in his petition that Adams owned and controlled a steam engine, boiler and fixtures, and a machine for dressing staves, and propelled by steam; that the engine, boiler and fixtui’es, were placed within one hundred feet of a frame stable in the town, and within three hundred feet of his dwelling house; and that the smoke stack attached to the boiler was defective and unsafe in this, that the screen upon the smoke stack was coarse and furnished no protection against sparks, and was in other respects defective, and the defendant well knew the same; and that on the 2d day of May, 1878, the wind was blowing heavily from a south-westerly to a north-easterly direction, and in the direction of the stable and the dwelling; and one George Watson, who was the employe and agent of defendant, and who was managing the machinery, did on said 2d day of May, 1878, fire up and start the machinery, and so negligently, carelessly and improperly run and operate the same, that by reason of the defective and insufficient screen aforesaid, and careless and negligent conduct and management of the machinery, and under the gale of wind aforesaid, and the proximity of the machinery to the stable and dwelling aforesaid, that the sparks from the smoke stack set fire to the stable and the dwelling house so occupied by plaintiff.
    Plaintiff therefore avers that by carelessness, negligence, and improper conduct and management of the machinery, boiler, smoke stack, etc., and under the gale of wind aforesaid, by the agent and employe of defendant, the defendant did set fire to and burn up and destroy the goods and chattels, etc., the property of plaintiff.
    To the petition Adams answered as follows:
    I. That he admits that the plaintiff was, at the time the same was consumed by fire, the owner of the personal property as averred in the amended petition. And that the defendant further admits that at the time he was the general owner of the engine, boiler, smoke stack and machinery described in the amended petition.
    But the defendant, in further answer to the amended petition, says:
    That he denies each and every averment therein contained not herein before admitted.
    II. And the defendant, for a second cause of defense, and for a further answer to the amended petition, says :
    That the stable described in the amended petition was at the time of the happening of the pretended grievances complained of, situated one hundred feet or more in a north-easterly direction from the engine, smoke stack, and machinery described in the amended petition, and that the dwelling house of one James S. Crawford was then situated two hundred feet or more ki a north-easterly direction from the stable. That the house of Crawford then contained large quantities of gunpowder, coal oil, and other explosive and highly combustible substances, and that the property of plaintiff was situated in a frame building sixty feet or more north of the bouse of Crawford.
    And the said defendant avers that the fire which burnt and consumed the said property of plaintiff was communicated to said house of Crawford by sparks and cinders from said stable, and from said house of Crawford to said house in which plaintiff’s said property was situated, and from said last named house to said property of plaintiff, and that in no other manner was said personal property set on fire and destroyed or injured.
    The said defendant therefore prays that he may go hence without delay and with his costs.
    To the second defense Young demurred, because the same did not state facts sufficient to constitute a defense. This demurrer was sustained, and the cause was tried upon the petition and first defense. The jury found that Young ought to recover of Adams; a motion for new trial was overruled, and a judgment for Young was entered.
    On proceedings in error, the district court affirmed the judgment, and plaintiff in error now seeks to reverse these judgments.

      Isaiah Pillars and T. J. Godfrey, for plaintiff in error.
    The leading case in New York upon the question involved is Ryan v. New York Cent. R. Co., 35 N. Y. 210. The syllabus is as follows:

      “ The negligent burning of a house, and the spreading of the fire to a neighboring house, and the burning thereof, do not give the owner of the last house a cause of action against the owner of the house in which the fire originated. The damages are too remote.
    “ The New York Central Railroad Company, hy the negligent manner of conducting an engine, or by the defective condition of the engine, set fire to a quantity of wood in one of their sheds. The fire consumed the woodshetf, and spread to and consumed the house of the plaintiff, situate about one hundred and thirty feet distant from the shed. ’Held, that no cause of action existed in favor of the plaintiff against the railroad company, by reason of such loss.”
    The supreme court of Pennsylvania, in Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353, held:
    “ In determining accountability for the consequences of a wrongful act, the immediate, and not the remote cause is to be considered.
    “An engine on a railroad negligently set fire to a house, the fire from the house communicated to another at some distauce from it, which was consumed with all its contents. Held, that the railroad company were not liable for damages for the last building and its contents.
    “Every one has to take the risks of the vicissitudes of organized society.

      " The person committing the first act of negligence is not liable for all its consequences.”

    The injury in the case at bar was still more remote. The sparks from the engine fire the stable one hundred feet away, which fired Crawford’s building two hundred feet away, which fired the building in which were the plaintiff’s goods, situated sixty feet from Crawford’s building.
    Thus the sparks Avere the cause of the cause of the cause of the burning of plaintiff’s goods.
    We submit that the case of Webb v. Railroad Company, 49 N. Y. 420, does not in any manner reverse or modify the holdings in the two cases just cited.
    In that case, as avcII as the case of Pennsylvania R. Co. v. Hope, 80 Pa. St. 373, the fire Avas continuous.
    When the cases referred to by counsel on the other side are carefully examined, it will be found that in nearly every case they present facts showing that the injury complained of was the result of not several, but a continuous: fire; in fact, but one fire. Such was the case in Perley v. Eastern Railroad Co., 98 Mass. 414. And even that case -was alone maintained by virtue of a statute of Massachusetts.
    In support of the position herein contended for, wo further refer to Macon & Western R. Co. v. McConnell, 27 Ga. 481; also to a monograph published by Ur. Wharton, entitled, “ The Liability of Railway Companies for Remote Fires — Proximate and Remote Cause.”

      Le Blond § Loughridge, for defendants in error.
    Counsel for the plaintiff in error seem to rely chiefly upon Ryan v. New York Cent. R. Co., 35 N. Y. 210, and Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353. The latter case seems to rely solely upon the former for its guidance, coupled with the magnitude of the consequences that might result from a negligent act, rather than the establishment of a sound principle of law, applicable in all cases.
    The case of Webb v. Rome, W. & O. R. Co., 49 N. Y. 420, has so modified these cases as to give them no controlling force. See, also, Ehrgott v. Mayor, etc., 96 N. Y. 264; Cincinnati, H. & I. R. Co. v. Eaton, 94 Ind. 474.
    We maintain that it can not be held as a matter of law,. that by reason of the stable and Crawford’s house intervening between the machinery and Young’s property, that the injury is too remote, and the cause not proximate. The question is not one of distance or intervening objects, but whether a man of reasonable judgment should not antici-, pate the injury from his negligent act under all the surrounding circumstances.
    There may be innumerable intervening objects and spaces, and yet the damage may be the proximate result.
    In support of this view of the case we submit the following decisions as the law of this case, and call the court’s attention especially to the case of Fent v. Toledo, Peoria &

      Warsaw Railroad Co., 59 Ill. 349; s. c., 14 American Rep. 13, which is a review of all the American and English decisions on the subject of remote and proximate cause. Also, Annapolis & Elkridge Railroad Co. v. Gantt, 39 Md. 115; Phila., etc., Railroad Co. v. Constable, 39 Md. 149; Atch., etc., Railroad Co. v. Stanford, 12 Kan. 354; St. Joseph, etc., Railroad Co. v. Chase, 11 Kan. 47; Kellogg v. Chicago & N. W. Railroad Co., 26 Wis. 224; Perley v. Eastern Railroad Co., 98 Mass. 418; Higgins v. Dewey, 107 Mass. 494; Del., etc., Railroad Co. v. Salmon, 39 N. J. 299; Hooksett v. Concord Railroad Co., 38 N. H. 243; Burlington, etc., Railroad Co. v. Westover, 4 Neb. 269; Coates v. Miss., etc., Railroad Co., 61 Mo. 38; Poeppers v. Miss., etc., Railroad Co., 67 Mo. 715; Doggett v. Richmond, etc., Railroad Co., 78 N. C. 305; Hoyt v. Jeffers, 30 Mich. 181; Milwaukee & St. P. Railway Co. v. Kellogg, 94 U. S. 469.
    Whether the cause is proximate or remote, is a question of fact to go to the jury under the instructions of the court. Henry v. South Pac. Railroad Co., 50 Cal. 176; Atchison, etc., Railroad Co v. Bales, 16 Kan. 252; Fent v. Toledo, etc., Railroad Co., 59 Ill. 349.
   Eollett, J.

Was the negligence of Adams the proximate cause of the loss sustained by Young? The law does not regard an injury from a remote cause. There is no dispute as to the legal proposition; the difficulty is as to its proper application to the particular case.

The sustaining the demurrer to the second defense, is the only complaint of the plaintiff in error. There is no complaint of the trial on the first defense, in which the jury found against the plaintiff in error, and in which the jury must have found that his negligence was the proximate cause of the loss of the goods.

Does the second defense show, as a matter of law, a bar to Young’s recovery? This defense is, that the fire which burnt and consumed the property was communicated to the house of Crawford by sparks and cinders from the stable, aud from the house of Crawford to the house where the property was situated, and then to the property.

It is not claimed that this fire was not the same fire communicated to the stable by sparks from the smokestack, when Adams’ agent negligently aud carelessly fired up and started the machinery. So, from the petition and answer, it is shown, that the fire, started by Adams, is the fire that consumed the goods.

Adams does not aver or claim that there was any new agency or cause at any point of the line of this fire, and does not aver or claim that the “gale of wind” increased in force or changed in direction.

The stable and the houses were not causes of communicating the fire, but they were only conditions of the communication, existing when the fire was started. Strictly, the law knows no cause but a responsible human will; and when such a will negligently sets in motion a natural force that acts upon and with surrounding conditions, the law regards such human actor as the cause of resulting injury. “As a legal proposition, we may consider it established, that the fact that the plaintiff’s injury is preceded by several independent conditions, each one of which is an essential antecedent of the injury, does not relieve the person, by whose negligence one of these antecedents has been produced, from liability for such injury.” Whar. Neg., § 85.

Adams does not aver his ignorance of the surrounding conditions, or that there was any thing unusual about them, or any change as to them.

The objection as to distance through the air is disposed of by the averments of the answer, that the fire was thus communicated, the surrounding conditions being as they were, and no other cause being shown. There is no averment that this loss is not a probable and ordinary result of the negligence of the plaintiff in error; and this principle is an important test, if it is not the only test. Whar. Neg., §150.

Ryan v. New York Cent. R. Co., 35 N. Y. 210, and Pennsylvania R. Co. v. Kerr, 62 Pa. St. 353, have been referred to as decisive here. The courts rendering those decisions have sufficiently “ distinguished and explained” them.

In case of Webb v. Rome W. & O. R. Co., 49 N. Y. 420, Folger, J., on page 427, says: “ I do not understand . . . that the decisions in 35 N. Y., and 62 Pa. St., supra, put forth any new rule of law, or one which has not been acted upon and recognized, pari passu, with the recognition and growth of the principles upon which most of the cases above cited are based. In Ryan’s case, the opinion of the court was that the action could not be sustained, for the reason that the damage incurred by the plaintiff was not the immediate but the remote result of the negligence of the defendant.” He then says, Kerr’s case is the same in material facts, principle, and reasoning. And he then says, page 428, “ I am of the opinion, that, iu the disposition of the ease before us, we are not to be controlled by the authority of the case in 35 N. Y. more than we are by that of the long line of cases which preceded it.” And the court there held, “ He who, by his negligence or misconduct, creates or suffers a fire upon his own premises, which, burning his own property, spreads thence to the immediately adjacent premises and destroys the property of another, is liable to the latter for the damages sustained by him.” And on the facts there, also held, “ In an action for the damages, that the questions as to whether defendant was negligent in the use of its property, and as to whether the injury was a probable consequence of the negligent acts and omissions, were properly submitted to the jury.”

In Pennsylvania R. Co. v. Hope, 80 Pa. St. 373, Chief Justice Agnew says, on page 379, “ Rut let us examine the case of Railroad Co. v. Kerr, and it will be found to be free from much of the criticism expended upon it.” “ It was not held in Railroad v. Kerr that when a second building is fired from the first, set on fire through .negligence, it is a mere conclusion of law that the railroad company is not answerable to the owner of the second; or that if a fire is communicated from the locomotive to the field of A, and spreads through his field to the adjoining field of B., A. may be reimbursed by the company, while B. must set down his loss to a remote cause, and suffer in silence; ” — thus answering Fent v. T. P. W. R. Co., 59 Ill. 362 and 358, infia.

And in that case the court held, “ Sparks'from defendants’ engine fired a railroad tie, from which rubbish left .by the defendants on their road was fired, communicated with plaintiff’s fence next to the road and spread over two fields, burned another fence and standing timber six hundred feet distant from the road. Held, that the proximity of the cause was for the jury.

“ In such case the jury must determine whether the facts constitute a continuous succession of events so linked as to be a natural whole, or whether the chain is so broken as to become independent, and the final result can not be said to be the natural and probable consequence of the negligence of defendants.”

In the opinion the chief justice says, page 378, “ In determining this relation, it is obvious that we are not to be governed by abstractions, which, in theory only, cut off*the succession. Abstractly each blade of grass or stock of grain is distinct from every other; so one field may be separated from another by an ideal boundary, or a different ownership, or it may be by a real but combustible division line. . . . It is at this point the province of the jury takes .up the successive facts, and ascertains whether they are naturally and probably related to each other by a continuous sequence, or are broken off or separated by a new and independent cause.”

Some states, as Massachusetts and New Hampshire,.have provided by statutes that railroad companies shall be liable for damage caused by fire communicated by its locomotive engines. And in Perley v. Eastern R. Co., 98 Mass. 414, damage was recovered for injury to property situated half half a mile distant from the railroad.

In the state of Kansas, damage has been recovered for injury to property situated many miles distant from the origin of the fire. Atchison, T. & Santa Fe R. Co. v. Stanford, 12 Kan. 354. In case of Atchison, T. & Santa Fe R. Co. v. Bales, 16 Kan. 252, it was held, “ Where fire, which is negligently permitted to escape from an engine of a railroad company, does not fall upon the plaintiff’s property, but falls upon the property of another, setting it on fire, and then spreads by means of dry grass, stubble and other combustible materials, and passes over the land of several different persons, before it reaches the property of the plaintiff, and finally reaching the property of the plaintiff at a great distance from where the fire was first kindled, sets it on fire and consumes it: Held, that the negligence of the railroad company, in sucha case, is not too remote from the injury to the plaintiff’s property to constitute the basis of a cause of action against the company.”

In case of Poeppers v. M., K. & P. Ry. Co., 67 Mo. 715, sparks from the locomotive set fire to the prairie where the grass was rank. The wind was high and the fire extended three miles before night, then died down, and the next morning the wind rose and carried the fire five miles further, where the fire destroyed plaintiff’s property. The court held, “ that as the rise of the wind was a thing which a prudent man might reasonably have anticipated, it could not be regarded as the intervention of a new agency, so as to relieve the company from the consequences of its negligence in permitting the fire to escape; and that the fire was in fact one continuous conflagration, notwithstanding the lapse of time and the great distance over which it traveled before reaching plaintiff’s property.” In Missouri this may be correct.

In Del., Lack. & West. R. R. Co. v. Salmon, 39 N. J. law, 300, the court held, “ Where one, by negligence or misconduct, occasions a fire on his own premises, or the premises of a third person, which spreads from thence to the plaintiff’s property, and causes an injury, the injury is not, as a legal proposition, too far removed from his negligent act to involve him in legal liability.” And Ryan v. New York Cent. R. Co., and Pennsylvania R. Co. v. Kerr, supra, are disapproved.

The case of Kellogg v. The Chicago and N. W. Ry. Co., 26 Wis. 223, was fully considered, and the court held, “ The maxim, causa próxima non remota speetatur, is not controlled by time or distance, nor by the succession of events. An efficient adequate cause being found, must be deemed the true cause, unless some other cause, not incidental to it, but independent of it, is shown to have intervened between it and the result. • The maxim includes liability for all actual injuries which were the natural and probable result of the wrongful act or omission complained of, or wore likely to ensue from it under ordinary circumstances.” And Ryan v. New York Cent. R. Co., and Pennsylvania R. Co. v Kerr, supra, are disapproved.

In the case of Fent v. The Toledo, Peoria and Warsaw Ry. Co., 59 Ill. 349, the opinion delivered by Chief Justice Lawrence, disapproved of Ryan v. New York Cent. R. Co. and Pennsylvania R. Co. v. Kerr, supra, and deals at length with remote and proximate cause. The court there hold, “If fire is communicated from a railway locomotive to the house of A, and thence to the house of B, it is not a conclusion of law that the fire sent forth by the locomotive is to be regarded as 'the remote, and not the proximate, cause of the injury to B, but that is a question of fact to be determined in each case by the jury under the instructions of the court. . . .

“ If loss has been caused by the act, and it was, under the circumstances, a natural consequence which any reasonable person could have anticipated, then the act is a proximate cause, whether the house burned was the first or the tenth, the latter being so situated that its destruction is a consequence reasonably to be anticipated from setting the first on fire. If, on the other hand, the fire has spread beyond its natural limits by means of a now agency — if, for example, after its ignition, a high wind should arise, and carry burning brands to a great distance, by which a fire is caused in a place that would have been safe but for the wind — such a'loss might fairly be set down as a remote consequence, for which the railway company should not be held responsible.”

In Milwaukee and St. P. Ry. Co. v. Kellogg, 94 U. S. 469, the claim was that fire was negligently communicated from a steamboat of the company by sparks from the chimney to an elevator of the company built of pine lumber, and one hundred and twenty feet high, and standing on the bank of the river, and from the elevator to a'saw-mill and lumber piles of Kellogg. The mill was five hundred and thirty-eight feet distant from the elevator, and the nearest pile of lumber was three hundred and eighty-eight feet distant from it. When the steamboat went along side the elevator, an unusually strong wind was blowing from the elevator towards the mill and lumber. The case was from Iowa. The court held, “ The question as to what is the proximate cause of an injury is ordinarily not one of science or of legal knowledge, but of fact for the jury to determine in view of the accompanying circumstances. A finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, is not warranted unless it appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Where there is no intermediate efficient cause, the original wrong must be considered as reaching to the effect, and proximate to it.”

In the case of Hoyt v. Jeffers, 30 Mich. 181, more than one building was burned by fire communicated by sparks from a mill chimney. As to the second building, the court held, Even where such, second building is at such a distance from the first that its taking fire from the first might not, a priori, seem possible, yet if it be satisfactorily shown that it did in fact thus take fire without any negligence of the owner, or any fault on the part of any third party, which could be properly recognized as the proximate cause, and for which he could be held liable, the party through whose negligence the first building was burned, can not on principle be held exempt from equal liability for the burning of the second.”

These numerous citations show many phrases of this subject, and that each case must be determined by its peculiar facts, and so is largely within the province of the jury.

Here explosives are averred to have been in Crawford’s house, but if they ever exploded it is not averred that auy injury came from such explosion. There is shown no new cause operating after the fire was carried from the chimney of the mill on its destructive mission. The demurrer was rightly sustained, and the court did not err in affirming the judgment.

Judgment affirmed.


source: Caselaw Access Project

author: Owen, C. J.

license: Public Domain

text:
    Cummings v. Kent.

      Bill of exchange-— Contract of drawer — Presentation—Evidence of parol agreement.

    1. By the act of drawing and issuing a bill of exchange, the drawer contracts that it will be accepted and paid according to its terms, and that if it is not he will pay it.
    2. The liability of the drawer of a bill of exchange is fixed by the due presentation, demand, and notice of dishonor.
    3. Evidence of a parol agreement, prior to or contemporaneous with the drawing and delivery of a bill of exchange, that the drawer is not to b-liable as such, is inadmissible.
    4. Cummings was indebted to Kent. Chamberlain was indebted to Cummings in the same amount and more. Cummings drew bills of exchange upon Chamberlain in favor of Kent for the amount of his indebtedness to the latter, which were accepted hut not paid. There were due presentation, demand, and notice of dishonor. In an action by Kent upon the bills, Cummings answered that Kent agreed to take the acceptances in payment of his claim against Cummings, and that the latter drew the bills only for the purpose of assigning to Kent his claim against Chamberlain. Upon the trial Cummings offered to prove that prior to, and at the time of drawing the bills, there was a parol agreement that he was not to be liable thereon as drawer. Held: The evidence was properly excluded.
    Error to the District Court of Hamilton, county.
    . Bela C. Kent, the plaintiff in the original action, declared upon two bills of exchange of the tenor following:

      “ $1,565. New Albany, Ind., November 15, 1872.
    Ninety days after date of this, only of exchange, pay to the order of B. C. Kent, fifteen hundred and sixty-five dollars, without relief from valuation or appraisement laws, value received, and charge to account of
    E. Cummings.
    To Messrs. Chamberlain, Mathers & Co., New Albany, Ind.

    Accepted, payable at 1st Nat. Bank, New Albany, Ind.
    Chamberlain, Mathers & Co.”
    There were due presentation, demand, notice and protest.
    The drawer and acceptors were made defendants.
    E. Cummings, the drawer, and plaintiff in error, interposed the following as a defense:
    “E. Cummings, defendant, now comes and for a defense says that he signed the two bills of November 15, 1872, in the petition set out, but under the following circumstances, to wit: that, being indebted to plaintiff on that date in the sum of $3,014.65 for merchandise, plaintiff' thereupon agreed to take the acceptances of Chamberlain, Mathers & Co., co-defendants herein, in payment of such indebtedness, and to release defendant from all liability for the same. Said defendants, Chamberlain, Mathers & Co., were at the time indebted to this defendant in said amount and more, and the defendant, in pursuance of said agreement, drew on Chamberlain, Mathers & Co., in favor of plaintiff, solely for the purpose of assigning and transferring so much of his claim against said Chamberlain, Mathers & Co. to plaintiff; and the transfer was put into the shape of bills or orders on the suggestion of the book-keeper of plaintiff solely to enable Chamberlain, Mathers & Co. to have a voucher when they should pay said bills against this defendant on account.”
    On the trial Cummings offered to show by oral testimony:.
    “That on or prior to November 15, 1872, an arrangement was made between the plaintiff, defendant, and Chamberlain, Mathers & Co., that defendant, Cummings, should assign to plaintiff' $3,014.95 of his claim against Chamberlain, Mathers & Co., and that plaintiff' would take that claim in settlement of so much of defendant’s indebtedness to him, and release defendant from all liability for that indebtednes, and thereupon Kent did agree to release Cummings, and accepted Chamberlain, Mathers & Co., who thereupon agreed to pay said sum to the plaintiff.
    “ That, in pursuance of that agreement, the bills of exchange now sued on, were drawn up by the book-keeper of the plaintiff and signed by the defendant, but that the agreement between the parties was, that said papers should be used solely for the purpose of assigning defendant’s claim to the plaintiff’, and for the purpose of enabling Chamberlain, Mathers & Co. to have a voucher when they should pay these sums, against the defendant on account, but that the defendant was not to be liable on said bills of exchange as drawer.”
    The plaintiff below objected to this testimony. The objection ivas sustained and the testimony excluded. The only question before this court for consideration arises upon this action of the trial court. A judgment for the plaintiff' was affirmed by the district court on error. To reverse this judgment the present proceeding is prosecuted.

      John W. Herron, for plaintiff in error.

      Jordan $ Jordans, for defendant in error.
   Owen, C. J.

If the trial court properly excluded the evidence offered by the defendant below to prove that it was agreed, at the time the bills of exchange in suit were drawn, that he was uot to be liable thereon as drawer, the judgment below should be affirmed.

The real issue tendered by the answer was that Kent took the bills of exchange in payment of the debt of $3,014.95 which was due from the defendant, Cummings, to him, and agreed to release the former from all liability for the same. A careful inspection of the answer fails to disclose any averment that Kent agreed to release Cummings from his liability as drawer of the bills, or that there was any agreement that the only purpose in drawing the bills was to effect an assignment of the debt. If we assume the facts alleged in the answer to be proved as fully as averred, they would still fall short of establishing a defense to the action on the bills of exchange. They may have been taken in payment of the account, and Cummings thereby released from all liability thereon ; but the action was not upon the account, but upon the bills given for its payment. The evidence offered was properly excluded, as being irrelevant to the issues joined.

We do not find it necessary, however, to rest our determination of the case solely upon this ground. Assuming for the purposes of the ease, that the issues were broad enough to invite an inquiry into the facts which were sought to be proved by the evidence offered, was it competent to establish such facts by oral testimony?

The liability assumed by the drawing of a bill of exchange is clearly recognized by the law. The mere act of drawing a bill imports the most certain and precise contract, for presumed adequate consideration, that the bill shall be accepted and paid, and that if it is not, the drawer will pay it. Wood v. Surrells, 89 Ill. 107; Chitty on Bills, 147. It is a firmly settled principle that parol evidence of an oral agreement alleged to have been made at the time of the drawing, making, or indorsing of a bill or note, can not be permitted to vary, qualify, or contradict, to add to or subtract from, the absolute terms of the contract. Parson’s Notes and Bills, 501.

The evidence which the court excluded in the case at bar was offered for the purpose of proving that at the time of the drawing and delivery of the bills in suit, it was agreed between the payee and drawer that the latter should not be liable as such drawer. If this was not an attempt to contradict the plain terms of the contract as the law interprets it, it is not easy to conceive of a case which would present such a question.

Morris v. Faurot, 21 Ohio St. 155, is cited to support, the view contended for by Cummings.

This was a suit by the indorsee against the indorser of a promissory note. The defense was that the indorsement was not made in the regular course of business, but that the plaintiffhad agreed with the makers to take up the note, and that “ the indorsement was made with the express understanding and agreement that this indorsement was to be used by the plaintiff only as evidence to Cochran & McElroy that he had paid off their indebtedness on the note to the defendants, and that it was made for no other purpose whatever.”

McIlvaine, J., says:

“ That parol testimony is inadmissible to contradict or vary the terms of written instruments, and that the contract of an indorser of a promissory note, whether the indorsement be in blank or otherwise, is within the meaning of that rule, as general propositions of law are true, may be admitted for the purposes of this case. But the question in the case, as we understand it, was not as to the terms of the contract, or the nature or extent of the indorser’s liability, but, whether there was any contract at all, out of which any liability could arise.”

It will be seen that this case expressly recognizes the rule which the trial court, in the case at bar, applied in excluding the evidence offered “ as to the terms of the contract, or the nature or extent of the liability” of the drawer.

Dye v. Scott, 35 Ohio St. 194, is relied upon as decisive of the case at bar, in that it establishes the admissibility of the evidence which the trial court excluded. The proposition declared by the court in that ease is : “ Oral testimony is admissible to prove that the iudorser, as between himself and the indorsee, at the time of indorsing a note in blank, waived demand and notice.” We are not called upon, nor have we any disposition, to question the entire soundness of this proposition; and the language of Gilmore, J., which is relied upon by the plaintiff in error, must be read and construed in the light of the question before the court and hot as declaratory of a rule which was not at all necessary to a solution of that question. The rule established by that case is supported by authorities which rigidly adhere to the principle which guided the trial court. 1 Parsons’ Notes and Bills, 584; Daniel’s Neg. Instruments, § 1093; Edwards’ Notes and Bills, § 861; Boyd v. Cleveland, 4 Pick. 525; Lane v. Steward, 20 Me. 98; Fuller v. McDonald, 8 Greenl. 213.

Wood v. Surrells, 89 Ill. 107, is an instructive case, presenting striking analogies to the case at bar. One of several judgment debtors gave a bill of exchange on a third person, wdiose acceptance was procured in satisfaction of the judgment. It was held that evidence of a parol agreement at the time of the drawing of the bill, to release the drawer from all liability on the draft, was inadmissible. Here the judgment was paid by the drawing and acceptance of the bill; but evidence of a contemporaneous parol agree' ment that the drawer was not to be liable as .such, was excluded.

It was further held in this case, that the liability of a drawer of an inland bill of exchange is fixed by presenting the draft on the day of its maturity, and notice of its dishonor. It was also held that: “ The rule is familiar, that an agreement can not exist partly in writing and partly in parol, or, that verbal terms or conditions can £not control the rights or liabilities of parties to commercial paper.”

While there is not entire uniformity in the authorities upon the question, their decided weight will be found to support the principle that evidence is not admissible to prove a contemporaneous parol agreement that the liability of the drawer of a bill of exchange is not to be enforced. 1 Daniels’ Neg. In., § 80; Martin v. Cole, 104 U. S. 30; Bigelow v. Colton, 13 Gray, 309; Davis, Receiver, v. Randall, 115 Mass. 547; Bartlett v. Lee, 33 Ga. 491; Day v. Thompson, 65 Ala. 269: Barnard v. Gaslin, 23 Minn. 192; Crocker v. Getchell, 23 Me. 392; Fuller v. McDonald, 8 Greenl. 213; Tankersley v. Graham, 8 Ala. 247; Stubbs v. Goodall, 4 Ga. 106; Wilson v. Black, 6 Blackf. 509; Holton v. McCormick, 45 Ind. 411; Stack v. Beach, 74 Ind. 571; Woodward v. Foster, 18 Gratt. 200; Barry v. Morse, 3 N. H. 132; Heaverin v. Donnell, 7 Sm. & M. 244; Heath v. Van Cott, 9 Wis. 516. This is also the rule in England. Hoare v. Graham, 3 Campb. 57; Abrey v. Crux, 5 Com. P. (L. R.), 37; Bell v. Lord Ingestre, 12 Q. B. 317; see also, Forsythe v. Kimball, 91 U. S. 291; Specht v. Howard, 16 Wall. 564.

Judgment affirmed.