text:
    Strong v. Strauss.
    W. R., guardian of the estate of three minors, upon a sale of their real estate, took the notes of the purchaser, drawing interest, for the deferred payments, payable to the order of said W. R., guardian of A. K., C. K., and E. K., and secured by a mortgage on the real estate sold.

      Held: That one who buys such notes bearing on their face the marks of a trust fund, is put upon inquiry ; and if he buys them from the guai'dian, under circumstances fairly indicating that they were sold against the interest of his wards, he gets no title from the guardian who misappropriates the proceeds of the sale.
    Error to the District Court of Hamilton County.
    William Rankin was appointed and qualified by the probate court of Hamilton County, guardian of the estate of Catharine, Anne and Edward Kelly. The estate consisted, in part, of two promissory notes, dated June 27,1877, for the sum of six hundred and twenty-seven and dollars each, made by Michael Hope, and payable in one and two years from date, to the order of William Rankin as guardian, with interest at six per cent, per annum. The notes were purchase-money notes for land belonging to the minors, and sold by Rankin as guardian, to Hope, who executed the notes and a mortgage on the lands to secure the same, to Rankin as guardian, for the deferred payments. Said mortgage was recorded on the 20th day of July, 1877.
    In the fall of 1877, Rankin went to a note broker with the notes, told him they were balance of purchase-money notes, and left them with him for sale. The broker applied to Raphael Strauss the defendant in error, showed him the notes, and urged them upon him as “ gilt-edged paper,” and a safe investment. Strauss wanted further evidence that it was really so. “ Being a note broker ” he “ did not take his word entirely.” He thereupon consulted a lawyer who knew Michael Hope, and to whom the broker referred him ; and the lawyer informed him as to the solvency of the said Hope and the title to the real estate ; and acting under the lawyer’s advice, Strauss, on the 27th and 29th days of October, 1877, purchased the notes and mortgage — taking the endorsement of Rankin individually and as guardian, as he did not deem it safe to do otherwise. The following are copies of the notes as endorsed, to wit:
    “Cincinnati, June 27th, 1877.
    “ I627.-2-0
    “ One year after date I promise to pay to the order of William Rankin, guardian of Anne Kelly, Catharine Kelly and Edward Kelly, minors, six hundred and twenty-seven and thirty one-hundredths dollars. Value received, with 6 per cent, interest per annum.
    (Indorsed) “ Michael Hope.”
    “Wm. Rankin.
    “ Wm. Rankin, Guardian.”
    “ Cincinnati, June 27th, 1877.
    “ $627.Afi
    “ Two years after date I promise to pay to the order of William Rankin, guardian of Anne Kelly, Catharine Kelly and Edward Kelly, minors, six hundred and twenty-seven and thirty one-hundreths dollars. Value received, with interest at 6 per cent, per annum.
    (Indorsed) “Michael Hope.”
    '“Wm. Rankin.
    “Wm. Rankin, Guardian.”
    Raphael Strauss paid some money to make up the interest that was accumulated, but purchased the notes for less than their face value, and gave in payment his two checks, of which the following are copies, to wit:
    “ (Stamp No. —) “ Cincinnati, October 27th, 1877.
    “GILMORE DUNLAP & CO.
    “ Pay to William Rankin, or order, six hundred and twenty-six and eighty-three one-hundredths dollars.
    $626.aa “ R. Stbauss.”

      “ (Stamp No. —) “ Cincinnati, October 29tb, 1S7T.
    “GILMORE DUNLAP & CO.
    “Pay to William Rankin, or bearer, five hundred and ninety-nine and seventy-four one-hundreths dollars.
    $599.^ “R. Strauss.”
    There was no evidence, nor was it claimed, that said ■Strauss, before purchasing, made any inquiry of .Rankin in reference to the notes and mortgage; or that he inquired of any person, official or otherwise, or in any way sought information, as to what the wards’ interest required in connection with the sale of said notes.
    Not long after the sale of said notes, Rankin, being wholly insolvent, made an assignment, under the laws of Ohio, of all his property real and personal, for the benefit of his creditors, and was thereafter removed, or resigned his appointment as guardian. The said Rankin wholly failed to account to said minors, their estate, or to his successor as guardian, for the proceeds of the sale of said notes, or the face value thereof, or any portion or part thereof.
    Charles J. Strong and Adolph Carnes, sureties upon the bond of said Rankin as guardian, filed their petition in the court of common pleas; and asked that the said Hope be restrained, by order of court, from paying said notes to any party holding the same by assignment or endorsement by said Rankin, except to some legally appointed guardian of said minors. E. B. Molony, guardian of said minors, and the said Raphael Strauss were made parties defendant, and each filed a separate answer and cross petition. The defendant Hope answered, but said Rankin filed no answer in the case. To the answer and cross petition of said Strauss the plaintiffs filed their reply.
    The court of common pleas, on the issues joined, found for the plaintiffs; and that they were entitled to the relief prayed for; and that said E. B. Molony, as such guardian, was alone entitled to receive the money due from said Hope on said notes and mortgage. It was therefore considered, adjudged and decreed, that said money be paid to said E. B. Molony as such guardian; that the cross petition of said Strauss be dismissed ; and that the injunction which had before been granted in the case, be made perpetual.
    On appeal, the district court found the issues joined upon the answer and cross petition of said Raphael Strauss in his favor, and that the equities of the case were with said Strauss, and against the plaintiffs and the other defendants herein.
    The case comes into this court on petition in error to reverse the judgment of the district court.

      John A. Shank and E. JB. f James Moloney for plaintiff in error.
    The guardian and ward occupy a relation as principal and agent. 4th Md., 352, 13th Md.', 532.
    The party dealing with the agent -is bound to see that he is acting within the scope of his authority, otherwise he deals with him at his peril. The legal title to none of the property of the ward is or can be in the guardian; it is in the ward. The words “ guardian,” etc., are merely “ descriptio personce,” describing the agency of the guardian. The relation is likewise a fiduciary one. See Story’s Equity, Sec. 1257 ; also, Adair v. Shaw, 1st Sch. & Lefroy, 243,262; Mea. Bank of Alexandria v. Seton, 1st Peters, 309; Wilson v. Mason, 1st Cranch, 100; Oliver v. Platt, 3d Howard, 433; also, Maddox Ch. Pr. 103, 104; Jeremy on Eq. .Jur. book 2, ch. 3, p. 281; Hill on Trustees, s. p. 144; and Long v. Mulford, 17 Ohio St. 509. All these authorities, and a multitude of others, clearly assert the “ doctrine that a party taking trust property, with a full knowledge of the trust as did the defendant in this case, becomes himself a trustee, and liable to all the duties and obligations incident to the trust in the hands of the prior trustee.”
    The only question then, is, has the party knowledge of the trust? It is not necessary that there should be a collusion or fraud to vitiate the sale, nor fhat there should be an intention “to violate the object of the trust.” If the actual results of the sale are in violation of the trust; if he, the purchaser, whether collusively or not, is a party to the violation of the trust, having notice that there is a trust, courts of equity place him in the shoes of the trustee, and enforce the trust.
    These funds bear upon their face their true character as trust funds, hence the purchaser was put upon his inquiry to ascertain:
    1st. (In a statutory sense). Whether the sale was for the interest of the ward, or whether a court creating the relation had so ordered ; and,
    2d. Having notice, whether the sale was in violation of the trust. 1st. La. An. 1, 223; Chitty on Bills, 10 Edition and notes, 200, 231, 232, 233; Story on Notes, Sec. 141,142; 17 La. an’ 1, 15; 4 Neb., 324. Sale without authority of court passes no title. 55 Ga., 21; 29 Ark., 500. Edwards on Bills and Notes, 252; 9 Cal., 591, (Statutory); 4 Md., 352 (Statutory). As to the right to pursue trust funds, 38 Ga., 452; ■ 31 Cal., 17, and numerous authorities.

      Jlayns 8y Broadwell and W. T. Judkins fordefendant in error.
    1. The guardian can not sell the real estate of the ward, except on application to the probate court, in the mode prescribed. But there are no such provisions relating to the disposition of the personal property of the ward. The duties of the guardian of the estate are clearly pointed out in section 6269, Rev. St., (Sec. 14, 1 S. & C., 673), and neither his duties nor the bond anywhere require him to make any application to the probate or other court for the disposition of the personalty belonging to the estate. It is simply left in his discretion to manage the estate for the best interests of the ward ; and to this end, the personalty is as absolutely under his control, and as subject to his disposition as if it were his own. The bond he gives is the security of the ward, to which he must look for protection; and the guardian may be removed or required to give new or additional security in the methods and for the causes named in the code. The law proceeds on the idea, that in order to effect the best interests of the estate and of the ward, it is indispensable that the guardian should have absolute control of the personal property of the ward, to dispose of it as he sees best, the bond being the guaranty that he will do right, and the reliance of the ward if he does wrong. And for these purposes his title is unquestioned, and his rights complete. Este £c. v. Strong c., 2 Ohio, 406.
    2. The defendant in error was not bound to inquire whether the exercise of this discretion was right, or the discretion itself sound. Nor was he bound to see to the application of the purchase-money. There is a class of cases where this is required, but this is not one of them. It is true, the guardian is a fiduciary. But the general principle is that where the trust is “ of a defined and limited nature, the purchaser must see to the application of the purchase-money; otherwise, when it is general and unlimited.” Clyde v. Simpson, See., 4 Ohio St., 445; Coonrod v. Coonrod, ¿■e., 6 Ohio St. 113.
    The guardian’s trust requires time and discretion in its management, and any moneys, the proceeds of the estate, are not to be paid over to designated third persons, but are to be collected and expended for the general benefit of the ward and his estate during minority.

      Eield v. Sehieffeler, 7 Johns. Ch., 150; Kizer v. Jones, 16 How., 30; Elliott v. Merry-man, 1 L. C. Eq., 110; Fountain v. Anderson, 33 Ga., 372; Thornton v. Rankin, 19 Mo., 193; 2 Story’s Eq. Jur., 977 a.
   Dickman, J.

The statutes of Ohio, in plain language, give a guardian power to sell his ward’s personal estate, only “when for the interest of the ward.” But, it may be well inquired, whether after the ward’s personal estate has been disposed of by the guardian, at the sacrifice of the ward’s interest, there can be no other remedy for the ward, than a removal of the guardian and an action against the sureties ? Is the property itself to be irrecoverable beyond reach? The guardian is a trustee, and if one buys from him the ward’s personal estate, with actual or constructive notice that the same is held in trust, and under circumstances furnishing reasonable grounds to believe that the sale is not for the ward’s interest, the purchaser can acquire no title to the property, if the guardian misappropriates the proceeds of the sale. In such a case, the purchaser is put upon inquiry; he buys at his peril; he can stand in no better position than the guardian himself, and must be held to be a trustee for the wards.

In this case, the defendant, Raphael Strauss, at the time he bought the notes, was informed as to their origin, and the title of the real estate mortgaged to secure them. An inquiry into the title doubtless disclosed the fact, that the real estate of the wards had been sold, and said notes taken as purchase-money notes for the deferred payments. The notes on their face plainly told that they belonged to a trust fund. They were put by William Rankin, the guardian, into the hands of a broker for sale; and the defendant purchased them for less than their face value. In buying them — although executed by a solvent maker and secured by mortgage — the defendant realized that he was purchasing at his peril, and that he was running a risk in taking the endorsement of Rankin in his fiduciary capacity alone, and therefore required, in addition, his individual indorsement. In paying for the notes — by drawing his checks to Rankin individually, and not as guardian, the defendant contributed to the concealment of the fact, that Rankin was receiving the money as a trust fund. The defendant apparently gave no thought to the interest of the wards. It is not claimed that he made any inquiry of Rankin himself, or in any way sought information, as to whether the interest of the wards would be promoted or sacrificed, by the guardian’s sale of the notes. It may be said that it would have been of no avail to make inquiry of the guardian himself, who committed the breach of trust. But, there is much force in the words of Sir John Romilly, master of the rolls, in a leading case, Jones v. Williams, 24 Beav., 62.

“With respect to the argument that it was unnecessary to make any inquiry, because it must have led to no results,” he says, “I think it impossible to admit of the validity of this excuse. I concur in the doctrine of Jones v. Smith, 1 Hare, 55, that a false answer or a reasonable answer, given to an inquiry made, may dispense with the necessity of further inquiry; but, I think it impossible beforehand to come to the conclusion, that a false answer would have been given which would have precluded the necessity of further inquiry.”

We cannot resist the conclusion, that the defendant at the time he bought the notes, had sufficient warning to put him upon a more thorough inquiry, than that which he is shown to have made. Thus put upon inquiry, he might easily have removed all doubt and fortified himself, by declining to purchase the notes, unless the guardian would first obtain leave to sell the same, by application to the probate court.

Instead of an unmistakable trust fund to be regarded as sacred, the defendant treated the notes in the hands of the broker as ordinary commercial paper. We do not think the notes in question should have been so classed. Made payable as they were to the order of William Rankin, guardian of the minors respectively named in the body of the notes, they could not have the unrestricted circulation of commercial paper, or bills of exchange and promissory notes negotiable by the law merchant. Far from being treated as commercial paper, bought1 before maturity, in the usual course of trade, for a fair value, we consider it the better rule, to hold the defendant as charged with notice of the peculiarly trust character of the notes, and as bound to exercise that high degree of caution in purchasing the same, which the protection of such trust funds demands.

Not long after the purchase of these notes by the defendant, Raphael Strauss, the financial condition of Rankin culminated in an assignment by^ him, of all his property, for the benefit of his creditors; and no portion of the proceeds of the sale of the notes, has ever been accounted for by him to his wards, or the guardian who succeeded him.

In the case at bar, we think, that the circumstances under which the defendant came into the possession of said notes and mortgage, were such as to give him no title to the same, and that he must be held to have taken the same in trust for the wards.

Judgment of the district court reversed, and that of the court of common pleas affirmed.


source: Caselaw Access Project

author: Granger, C. J.

license: Public Domain

text:
    Hanes v. The Dayton and South Eastern Railroad Company.
    1. If the record of a judgment, offered in evidence to support a plea in estoppel, shows no issue except one under which neither of the contracts disputed in the pending suit was confessed by the pleadings, or was admissible in evidence, said record is not proper evidence.
    C. Evidence, dehors the record, to show that in fact said contracts were admitted in evidence in the former suit would contradict the record and is inadmissible.
    Eeeoe to the District Court of Greene County.
    The Dayton and South Eastern Railroad Company sued Luther Hanes; the petition counting, first, upon a contract made in September, A. d. 1874, for four shares of stock at $200; and, second, upon a contract made in October, A. D. 1874, for ten shares of stock at $500. Hanes answered denying each of said contracts. The company replied pleading by way of estoppel a former recovery for the first two installments of said subscriptions. At the trial the company offered in evidence a record showing a recovery of two installments in an action upon a contract made in November, A. D. 1874, for fourteen shares at $700, said contract being denied by answer. The court, against Hanes’ objection, admitted said record in evidence, and also parol testimony tending to show that at the trial no evidence of a single contract for fourteen shares was offered, while evidence of the two contracts described in the petition in the second suit was received ; and that the installments recovered were in fact the first and second installments under said two contracts. Hanes excepted and his bill of exceptions was duly taken and made part of the record. The company recovered a judgment in the common pleas which the district court affirmed. Hanes asks a reversal of both judgments.

      T. E. Scroggy for plaintiff in error.
    The causes of action must be identical to the extent that the same evidence will support both. Stowell v. Chamberlain, 60 N. Y., 272; Freeman on Judgments, 3d ed., section 259; Railroad Co. v. Hall, 26 Ohio St., 310.
    It must appear from the record of the prior suit that the particular controversy sought to be precluded, was there necessarily tried and determined. •Lessee of Lore v. Truman, 10 Ohio St., 45; Freeman on Judgments, sections 257-8-9; 1 Greenleaf on Evidence, section 524; Jones v. Fales, 4 Mass., 255; Avery v. Vansickle, 35 Ohio St., 274; Porter v. Wagner, 36 Ohio St., 471; Campbell v. Consalus, 25 N. Y., 613; Cromwell v. County of Sac, 94 U. S., 351; jDuncan v. Bancroft, 110 Mass., 267.
    To make a record in a former suit conclusive evidence on any point, it should appear from the record that such point was in issue. And evidence aliunde is not admissible to show that a matter not in issue on the record was taken into consideration by the jury. Manny v. Harris, 2 Johns. (N. Y.), 24; Jackson v. Wood, 3 Wendell, 27; Lawrence v. Haughton, 5 Johns. (N. Y.), 129; White v. Hawn, lb., 351; Suydam v. Aldrich, 3 McLean, 383; Pearsall v. Phelps, 3 Ala., 525; Young v. Thompson, 14 111., 380; Pauli v. Oliphant, 14 Pa. St., 342 ; Robbins v. Budd, 2 Ohio, 16 ; Godfrey v. Godfrey, 30 Ohio St., 53; Railroad Go. v. Elmore, 53 N. Y., 624.

      Little Shearer, for defendant in error.
    One of the issues in the first case was whether Hanes had subscribed at all; and tbe same issue is made in the second suit. The record in the former action was competent to show that such fact was in issue in that case and that it had been determined and adjudicated. When it was shown that the contracts sued on in both Cases were identical and the same, both parties were forever concluded and estopped to question the judgment in the former suit, or to re-litigate the matters involved therein. Pollock v. Cohen, 32 Ohio St., 514; Bridge Co. v. Sargent, 27 Ohio St., 233; Roby v. Rainsburger, 27 Ohio St., 674; Swenson v. Gresap, 28 Ohio St., 668; Burt v. Sternburgh, 4 Cowen, 559; Gardner v. Buckbee, 3 lb.,' 120-127; Aurora v. West, 7 Wall., 82; Beloit v. Morgan, lb., 619; Bell v. MaColloch, 31 Ohio St., 397; Outram v. Moorwood, 3 East, 358; Greathead v. Broomley, 7 Term, 452; 2 Ta3dor’s Evi., sec. 1573; Henderson v. Henderson, 3 Hare Ch., 115; Bagot v. Williams, 3 B. & C., 241; Roberts v. Heine, 27 Ala., 678; Burlen v. Shannon, 99 Mass., 203; Gilbert v. Thompson, 9 Cush., 349.
    Parol proof was competent to show the contract sued on was the same in each case. Packet Co. v. Sickles, 5 Wallace, 580; Wood v. Jackson, 8 Wend., 10; Lawrence v. Hunt, 10 Wend., 80; Youmans v. Caldwell, 4 Ohio St., 71; Packet Co. v. Sickles, 24 How. (U. S.), 333-342.
    The doctrine that the causes of action must be identical to the extent that the same evidence will support both does not, in the sense argued by counsel, apply in actions based upon different installments of the same debt, they being part of the same issue. Each installment was a separate cause of action arising out of the same subject matter. A judgment upon one of them bars inquiry in a suit to recover any subsequent installment, as to all matters respecting the contract of subscription, as to its existence, validity, etc., and as to all matters other than payment, release, and the like. In short, all matters which might have been litigated therein are concluded b3r the judgment in the first suit. Beloit v. Morgan, stipra; Roby v. Rainsburger, supra. See also, 3 Cowen, 120; 3 Denio, 238; 4 Comstock, 71; Babcock v. Camp, 12 Ohio St., 11; Duchess of Kingston’s

      Case, 2 Smith L. C., 656; Aurora v. West, supra, 3 Hare, 115.
   Granger, C. J.

The record of the former judgment showed a recovery of two installments of $70 each upon a subscription for fourteen shares of stock at $700 made in November, A. D. 1874. The cause of action was the contract of subscription. The calls for assessments were only acts made necessary bjr that contract, under the statute, to determine when the subscribers for stock became bound to pay. Under the issue as made by the petition and answer no evidence of one contract for four shares made at one time, and of another contract for ten shares made at another time, was admissible. If a petition counted upon a note for $1,400, clearly the plaintiff could not put in evidence two notes — one for $1,000, and the other for $400. The contract of subscription must be in writing. Proof of two written contracts of' different dates and amounts does not support a petition counting upon one written contract for a sum equal to the aggregate of the two. Hence an inspection of the record showed that the former recovery could not legally have been for the causes of action set out in the pending petition. The matters alleged to have been passed upon must have been such as might legitimately have been given in evidence under the issue joined. If the record had shown a case in which evidence to establish contracts such as the two now in controversy was admissible, but failed to fully identify them as the contracts there actually sued upon, parol evidence might have been introduced to complete the identification. The trial court admitted a record that plainly showed a cause of action incapable of legal identification with either of the two in suit, and then permitted the company to contradict that record by parol evidence.

Hence the judgments rendered in the district court and common pleas must be reversed.

Judgment accordingly.


author: McCauley, J.

text:
    Brown v. Myers.
    An action of slander cannot be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood by the hearers.
    In such case it is error to exclude evidence offered by the defendant to show what the transaction was to which the words related.
    Error to the District Court of Wayne County.
    The action in the common pleas was slander. The defendant was the secretary and agent of an insurance -company. The plaintiff, before the speaking of the slanderous words, had been the agent of the company, and had- been discharged from his employment as such agent for an alleged dishonest transaction in the business of the company.
    The defendant,- at the time the words were spoken, was in conversation with one Curry, between whom and the insurance company there was a dispute about the payment of the same assessment twice. The defendant was explaining to Curry that the assessment had not been twice paid. Curry then stated that Myers, the plaintiff, had pointed out to him that the assessment had been paid twice. The defendant answered, “ Myers told you that.” “ Myers is a thief, and ought to be in the penitentiary long ago.” Curry in stating what was said at the time, says, “in connection with this talk, in which Brown said Mjrers was a thief, he, Brown, also explained about a transaction of Myers at Smithville, about having an assessment paid after a fire, and reporting it before the fire to hold the company.” Curry further testified that Brown in the conversation spoke of a printed circular about Myers, concerning his action in the Smithville matter, and that he at the time knew of the circular and had heard of the Smithville trans< action. The bill of exceptions contains all the evidence.

      A. T. Brewer, for plaintiff in error.

      Mo Qlu.ro iSmyser, for defendant in error.
   McCauley, J.

The question in this ease is, whether or not the plaintiff should have had a verdict upon the evidence offered in support of his petition. It is very doubtful whether an action can be maintained for such general word as thief, unless it be clearly shown that it was intended to impute a felony. Townshend on Slander and Libel, 210. Folkard’s Starkie on Slander, 75, marginal page. Whether a criminal charge was intended would appear by the matters spoken of in the same conversation. In this case the defendant was in conversation with the witness who testified to the speaking of the words about an assessment that the witness claimed had been paid twice, the witness informed the defendant that Myers had told him the assessment had been paid twice. In response to this statement of the witness, the defendant spoke the slanderous words of the plaintiff, and then proceeded to speak of the Smithville transaction. The witness Curry says: “ In connection with this talk in which Brown said Myers was a thief, he Brown, also explained about a transaction of Myers at Smithville, about having an assessment paid after a fire, and reporting it before the fire to hold the company.”

The witness further testifies that he had heard of the Smithville transaction, and it appears from his knowledge of it, that he must have known that it was not a criminal matter.

It is very clear that the words were spoken of the plaintiff and of his connection with the Smithville matter, and that the words were so understood by the hearers. Where the persons who hear the slanderous words, know the transaction referred to, and that it was not a larceny, no action for slander can be maintained. Carmichael v. Shiel, 21 Ind., 66; Williams v. Mines, 18 Conn., 473; Folkard’s Starkie on Slander, 446.

■ In this 3ase the hearers knew the transaction referred to, and knew that it was not a larceny; but merely a fraudulent transaction.

The charge of the court is not in the record, and however applicable to the case and correct it may have been, the verdict is not supported by sufficient evidence. It is for the jury to determine with what meaning the words were spoken and understood; but where the words with all that was said in the same conversation show no intention to impute a crime, but a total absence of such intention, the plaintiff’s case fails in its proof as a matter of law. .

The defendant offered evidence to show what the Smith-ville transaction was. This evidence was excluded by the court. While the speaking of the words was accompanied with such other and further statement as showed no intention to impute a crime, and that in consequence the court might properly have directed a verdict for the defendant, yet this was not done, nor was the court asked thus to dispose of the case ; but it went to the jury upon the evidence and charge of the court, and if the evidence had failed to prove that the words were spoken with an innocent meaning, then it became proper that the jury should know what the Smithville matter was, to which the words referred, in order to determine with what, if any, malice the words were spoken.

Judgment reversed.


author: Dickman, J.

text:
    Iliff v. Weymouth.

      A surety on a promissory note, within a month after it became due, delivered to the payee and owner thereof, a notice in writing, in which were the words, “ you are hereby required at once to proceed and collect the note you hold, upon which I am surety,” and also the words,- “ I Will stand no longer.” The payee waited more than six years after receiving said notice, before he commenced an action against the principal debtor on said note.

      Reid: That under the provisions of the statute for the relief of sureties and bail (S. & S., 741) the said notice by the surety to the creditor was-sufficient.

      Error to the District Court of Greene County.
    This cause came, on appeal, to the court of common pleas of Greene county, wherein Gregory Weymouth filed his petition against James P. Satterfield and Wesley Iliff, on a promissory note, of which the following is a copy, to wit:
    “Xenia, April 17,1872.
    “$178.50.
    “ Six months after date, we, or either of us, promise to pay to the order of Gregory Weymouth, one hundred and seventy-eight ^ dollars, at the First National Bank of Xenia, for value received.
    “Jas. P. Satterfield,
    Wesley Iliee.”
    iliff signed the note described in the petition, as surety only. Within a month after the note became due, Iliff delivered to Weymouth, who was then the owner of the note, a notice in writing, as follows, to wit:
    “To Gregory Weymouth: You are hereby required at once to proceed and collect the note you hold dated the 17th of April, 1872, for $178.50, upon which I am surety, and James Satterfield is principal; that I will stand no longer. Wesley Iliee.”
    Weymouth neglected to commence an action on the note until January, 1879. He did not call upon Iliff to pay the note, from the time said notice was served, until the eominencement of the action; and whenever he spoke to Iliff about the note being unpaid, on every such occasion, Iliff said he was out of it because of said notice.
    A jury was waived in the court of common pleas, and the parties by agreement submitted to the court the issues of law and fact; and upon all the facts, the court found as a matter of law, that said notice was insufficient, and did not comply with the statute, and for that reason rendered judgment against the defendant Wesley Iliff. The district court affirmed the judgment of the court of common pleas, and the case is here on petition in error to reverse the judgment of the district court.

      Snodgrass £ Schnebly, for plaintiff in error.

      Nesbitt cf Martin, for defendant in error.
   Dickman, J.

We think the notice in writing delivered to Weymouth by Iliff, was sufficient under the statute, to discharge the latter from liability as surety on the promissory note in suit. Under the provisions of the statute for the relief of sureties and bail (S. & S., 741), a person bound as surety on a note, might — if a right of action had accrued thereon — require his creditor by a notice in writing, forthwith to commence an action against the principal debtor on such note. And if the creditor failed to do so within a reasonable time thereafter, he forfeited the right which he would otherwise have had, to demand and receive from such surety the amount due on the note* To’ make the written notice sufficient, it was necessary that Iliff, the surety, should comply substantially with the requirements of the statute. This we think he did. The notice given by him was peremptory, unconditional and easily understood. It “required” the payee and owner of the note to proceed and collect, and left it not to his option. He was to act without delay — “at once ” or forthwith. He was required to “proceed,” or, as the word has been defined, “ to commence and carry on a legal process.” When required to “ collect,” the adoption of the commonly known and most effective means of enforcing collection — the commencement of suit — was necessarily implied. The determined language of the surety, “I will stand no longer,” taken in connection with the rest of the notice, was suggestive to the creditor, that the surety would expect him to resort at once to the best mode of discharging him from liability as surety on the note, to wit: the commencement of an action forthwith, which would enforce payment of the note by the principal debtor. The judgments of both courts must be reversed.

Judgment accordingly.


author: Nash, J.

text:
    Ginther v. Shultz.

      G. entered into a written contract with S., whereby he agreed to pay S. the sum of $135 if he would paint his house in a proper and workmanlike manner, with the best materials, and one half that sum in case the house should not be painted as aforesaid.

      Held: That S. cannot recover upon a quantum meruit, G. having paid $67.50 and the work not having been done as first specified in the Contract.
    Error to the District Court of Tuscarawas County.

      Jas. A. D. Richards, for plaintiff in error.

      John J. Robinson, for defendant in error.
   Nash, J.

The parties to this action in September, 1875, entered into the following contract:

“This agreement witnesseth: that whereas John Ginther of Dover township, Tuscarawas county, Ohio, has erected upon his farm in said township, a new dwelling-house, and is desirous of having the same neatly and substantially painted inside and out with three coats of the best material, and the inside work grained and varnished: Now Christian Shultz, the undersigned, and party of the first part, agrees to do said work in a proper, workmanlike manner, with the best material, and in such colors as said Ginther may select and direct. And for said work said Ginther agrees to pay said Christian Shultz the sum of one hundred and thirty-five dollars as follows: one half in hand on proper completion of the work, and the other half in* one year from the completion of the work, and should said house not be painted completely as aforesaid, with material and in manner as aforesaid, then the second half of said moneys to be forfeit to said Ginther; and the like forfeit if the graining and varnishing be not properly done; and all material and labor to be found by said Christian Shultz. Said work to be completed in a reasonable time. Witness our hands this — day of September, A. D. 1875.
“ John Ginther.
Christian Shultz.”

Shultz, after the contract was entered into, furnished the materials and painted the house of Ginther. On completion of the work, Ginther paid one half of the contract price.

In the court below, Shultz brought an action to recover from Ginther the balance to become due in one year from the completion of the contract. Ginther by his answer set up the contract, and alleged that the work of Shultz had been done in an improper, unskillful and unworkmanlike manner.

Upon the trial evidence was offered showing that said work had been performed in an improper, unskillful and unworkmanlike manner, and that the material furnished was of a poor and inferior quality.

The defendant below asked the court, after the evidence had been heard, to charge the jury as follows:

“ If you find that the work and labor was performed and the material furnished under the written contract set forth by the defendant in his answer, and that said work and labor was performed in an' improper, unskillful or unworkmanlike manner, and the material furnished was of a poor and inferior quality, said work and labor and material so furnished under said contract, being the same for which this suit is brought, then you should find for the defendant in this action.”

This request was refused and exceptions taken.

The court, however, upon this subject did instruct the jury as follows:

‘‘‘If you find that the work and labor performed and material furnished and for the price of which, this action was brought was done, performed and furnished under the contract set forth in the answer of defendant, and that said work and labor were performed in an improper, unskillful and unworkmanlike manner, and that said material so furnished was of an inferior quality and that the defendant accepted the same, then you should find the damage that the defendant has sustained by reason thereof and deduct said damage from the price agreed to be paid said plaintiff by the defendant for said work, labor and materials, and render a verdict in favor of the plaintiff for the balance.”

To this part of the charge the defendant excepted.

The bill of exceptions does not show that anything was done by Ginther looking toward an acceptance of the work by him.

Taking the most favorable view for the defendant in error, there was error in the failure to state (in the charge) that a substantial compliance with the contract, upon the part of Shultz, was essential to his right to recover the amount of the contract price remaining unpaid, or any part thereof. Mehurin & Son v. Stone, 37 Ohio St., 49.

Under this contract a still stronger rule should have been applied. By a true interpretation Ginther was bound to pay to Shultz $135 if the kind of work stipulated for was done, and $67.50 if this kind of work was not done, and the jury should have been so instructed.

Judgment reversed.


author: By the Court.-

text:
    Beaton v. Radford.
    Error to the District Court of Athens County.

      De Steiguer Jewett, and Grrosvenor Jones, for plaintiff in error.

      Charles Townsend and II. A. Constable, for defendant in error.

   By the Court.-

R. sued B. & Co. on a promissory note. B. & Co. admitted the making of the note, but by counterclaim charged partial failure of consideration and breach of the contract for which the note was given, and asked damages exceeding the sum due on the note. Issue on the counter-claim was tried, resulting in a verdict allowing to defendant a sum which, being credited on the note, left due to the plaintiff $>177.82, for which and for all the costs he recovered judgment.

Held: Under section 551, code of civil procedure, (S. & C., 1117), the judgment for costs in favor of the plaintiff was right.

Judgment affirmed.


author: By the Court.

text:
    McVeigh v. Ritenour et al.
    Error to the District Court of Licking County.

      Gr. Atherton, for plaintiff in error.

      J. D. Jones, for defendant in error.
   By the Court.

On April 8, 1871, V. R., being then liable to suit for breach of promise to marry S. M., conveyed his house and lot without consideration to M. R. to prevent a collection of her damages by S. M. Afterwards S. M. recovered a judgment against V. R. for damages for said breach of promise, on which execution was issued and levy made on said premises, which were sold and conveyed to her. by the sheriff in due form of law. She then sued M. R. for possession. The common pleas gave judgment in her favor, but the district court reversed that judgment because she had not first obtained a decree setting aside the deed to M. R.

Held: 1. S. M. was a creditor of V. R. at the time he made the deed to M. R.

2. That deed was void as against S. M. (see. 2, Stat. Frauds, S. & C., 656), the land was subject to levy and sale under her judgment (Westerman v. Westerman, 25 Ohio St., 510), and as purchaser at such sale she could recover possession without first suing to set aside the deed to M. R.

Judgment of the district court reversed and that of the common pleas affirmed.

McCauley, J., dissented from paragraph 1.


text:
    Fry v. The Franklin Insurance Company.
    Error to the Superior Court of Cincinnati.
    Lincoln, Stephens S? Slattery, for plaintiff in error.

      Ramsey <f* Matthews, for defendant in error.
   By the Court.

F. sued the F. I. Co. upon a policy. ' The answer alleged that the loss occurred after the policy had become void because the premium note was not paid when due. The reply charged that the company sent the note after the default to T. for collection; that T. directed the defendant to continue said insurance and guaranteed the payment of said premium, to which the defendant assented. On trial of this issue F. gave in evidence T.’s letter to defendant reading: “ Continue the policy in force and we will guarantee the payment of the note.” Also evidence showing the course of dealing and correspondence between T. and the defendant. This shows that the defendant made no reply to said letter, but wrote him several letters on other matters during the interval prior to the loss. F. having rested, the court, on motion of the defendant, toot this issue from the jury.

Held: This was error. T.’s letter did not in terms, or by necessary implication under all the circumstances, call for a reply if the defendant assented thereto. The court should have submitted (under suitable instructions) to the jury the question: “ Did the defendant assent to T.’s proposal?”

Judgments of the superior court at general and special terms reversed and cause remanded.


text:
    Kingman v. Loyer.
    Eeeoe to District Court of Morrow County.

      Thos. JE. Duncan, for plaintiff in error.

      Andrews Allison, for defendant in error.
   By the Court.

At February term, A. d. 1875, Morrow common pleas, G. recovered judgment against I. for $400. On March 9, 1875, execution was levied on I.’s land in said county, which was, on May 8, 1875, sold by the sheriff to K. The common pleas confirmed the sale and K. received the sheriff’s deed.

On March 16,1875,1. executed an instrument purporting to assign all his property, real and personal, to J. K. for the benefit of his creditors, but did not acknowledge it before any officer. The assignee filed the paper in the probate court, qualified as assignee, and under order of said court, on April 27,1875, sold the land to L. The probate court confirmed this sale and the deed being delivered, L. took possession. G. was not a party in the probate court. In 1876 K. sued L. for possession and recovered judgment. The district court, on error, reversed this judgment. K., asks a reversal of the district court.

Held: The instrument of March 16 did not convey any real estate; the title passed to K. under the execution sale and he owns the land.

Judgment of the district court reversed and that of the common pleas affirmed.


text:
    Mitchell v. Thompson.
    Error to the Court of Common Pleas of Morrow County.

      A. K. $ J. Q. Dunn, for plaintiff in error.

      Olds $ Diclcey, for defendant in error.
   By the Court.

At October term, 1878, Morrow common pleas, M. recovered judgment against T. A bill of exceptions allowed, signed and sealéd by the judge was filed at said term and so noted on the trial docket, but no journal entry noticed the bill or ordered it to be made part of the record. T. filed his petition in error and the original papers in the district court, which reversed the common pleas, and M. carried the case on error to the supreme court. At October term, 1882, Morrow common pleas, T. filed a motion in that court for a nunc pro tunc order showing that at October term, 1878, said bill of exceptions was duly allowed, &c. M. resisted said motion. The only evidence offered to support it was the trial docket entry reading: “ Motion for a new trial overruled and ex. Bill of exception filed Nov. 25, 1878,” and the bill of exceptions itself bearing the signature and seal of the judge below words certifying that it was “ allowed, signed and sealed and made a part of the record.” M. offered no evidence, but contented himself with objecting and excepting. He took a bill of exceptions and' on leave filed a petition in error in the supreme court to reverse the nunc pro tunc order then made in the common pleas. We think Bothe v. Railway Co., 37 Ohio St., 147, directly in point. There Auglaize Common Pleas, in 1881, made a similar nunc pro tunc order as of 1869, admitting the trial docket entry and the bill of exceptions in evidence in support of the motion. Against objection, exception and argument, the supreme court, in that case sustained the. action of the common pleas.

We approve and follow this holding and affirm the order complained of. As 37 Ohio St. does not fully state the case referred to no penalty is imposed.

Order affirmed.


text:
    Wolf v. Wall.
    Error to the District Court of Guernsey County.

      D. I>. T. Cowen, for plaintiff in error.

      P. W. Mathews and White <f Campbell, for defendant in error.
   By the Court.

1. At common law an action for an injury to the person caused by the want of shill or negligence of a surgeon, although based on contract, did not survive the death of either party. Vettner v. Gilman, 48 N. H., 416; Jenkins v. French, 58 N. H., 533; Smith v. Seerman, 4 Cush., 412; Zabriskie v. Smith, 13 N. Y., 322; Wade v. Kalbfleisch, 58 N. Y., 282; Stebbins v. Palmer, 1 Pick., 79; Lattimore v. Simmons, 13 S. & R., 183; Long v. Morrison, 14 Inch, 595; Wheatley v. Lane, 1 Saund., 216; Cowp., 376; Chamberlain v. Wilson, 2 M. & S., 416.

2. “An injury to personal estate” under section 398, Civil Code (S. & C. Stat., 1058), is damage done to some specific property of which the person is the owner. It is not damage arising incidentally or collaterally.

Judgment affirmed.


text:
    Insurance Co. v. Schmidt.
    Error to the District Court of Hamilton County.

      Me Q-uffey Morrill Strunk, for plaintiff in error.

      Alfred Tapie, for defendant in error.
   By the Court.

S. sued the insurance company upon a policy on the life of A. The answer averred suicide, which the reply denied. At trial the company offered in evidence the testimony taken by the coroner at the inquest; the court rejected it. The companj’ put in evidence the proofs of death submitted to it prior to suit by the plaintiff. On forms supplied by the company which required the physician who attended the deceased to answer questions prepared by the company, and required the claimant to furnish said answers to the insurer, the physician made statements, based entirely upon hearsay, which were readily separable from his other statements. The court instructed the jury that said hearsay statements could not be considered-by them.

Held: Both rulings of the court were right.

Judgment affirmed.


text:
    Heffner v. Moyst.
    Error to the District Court of Pickaway County.

      P. O. Smith, Milton Morris and O. O. Hunter, for plaintiff in error.

      Page f Abernethy, for defendant in error.
   By the Court.

1. After overruling a motion to set aside a verdict the court made a journal entry allowing thirty days after term to prepare and present for allowance a bill of exceptions. No journal entry showed that such bill was ever prepared, presented, allowed or ordered to be made a part of the record. Meld: A reviewing court cannot consider a paper claimed to be said bill of exceptions.

2. Where defendants, sued as joint tort feasors, answer separately: H., one of them, averring that he (with persons not made defendants) committed the act complained of, that it was lawful and that his co-defendants had no part in it, it was not error to the prejudice of H. to overrule his motion for a new trial while sustaining a separate motion by the other defendants to set aside the verdict as to them.

Judgment affirmed.


text:
    Challen v. Cincinnati.
    Error to the District Court of Hamilton County.

      James M. Challen, for plaintiff in error.

      Dawson, McG-arry $ Overbeelt, for defendant in error.
   By the Court.

After a verdict for plaintiffs for damages caused by the change of an established grade of the street in front of their lot, the city moved for a new trial, to which plaintiffs consented. The city then withdrew said motion and filed another, calling it a motion “in arrest of judgment and for judgment for the defendant on the pleadings.” The court entered upon the journal, agamst the objection and exception of plaintiffs, the words, “it appearing to the court that b}' the admission of plaintiffs upon the trial they were not owners of the premises at the time the work was done,” &c., and taking that entry with the pleadings, sustained the city’s motion and dismissed the action at plaintiffs’ costs.

. Held: An admission made during the jury trial not incorporated into a pleading, was only a part of the evidence, and has no place in the record except in a bill of exceptions. Hence, the statement on the journal must be disregarded. On such a motion the court could only look at the pleadings. (Sec. 384, Civil Code, S. & C., 1054.)

Judgment of district court and common pleas reversed and cause remanded for a judgment in favor of plaintiffs upon the verdict.


text:
    Gimperling v. Hanes.
    An action can not be maintained upon an undertaking, given under section 112, S. & 0., 789, for an appeal from a judgment rendered by a justice of the peace, where the appellant and the appellee both fail to file a transcript of the judgment and proceedings of the justice, within the time provided by section 116, S. & S., 419.
    Error to the District Court of Greene County.

      Little Shearer, for plaintiff in error.

      Snodgrass Shuebley. for defendants in error.
   McCauley, J.

The action in the common pleas ivas brought upon an undertaking given under section 112, S. & C. Statutes, 789, for an appeal from a judgment of a justice of the peace.

The appeal was by the defendant, and after giving the undertaking for appeal he failed to file a transcript of the judgment and proceedings before the justice. And the plaintiff also failed to file such transcript.

The statute S. & C., 789, sec. 112, prescribes the condi tions of an undertaking for appeal. There are two conditions — the first, that the appellant will prosecute his appeal to effect, and without unnecessary delay; the second, that if judgment be adjudged against the appellant on appeal, he will satisfy such judgments and costs. The undertaking on which this suit is brought contains these provisions.

It is claimed that the sureties in the undertaking for appeal are liable for the judgment rendered by the justice under the first condition of the undertaking for appeal.

Section 116 of the Justices Act (S. & S.,« 419,) provides that if the appellant shall fail to deliver a transcript and other papers, to the clerk of the court of common pleas and have his appeal docketed on or before the thirtieth day from the rendition of the judgment appealed from, the appellee at the term of court next after the expiration of said thirty1- days, may file a transcript of the judgment and proceedings before the justice and the cause shall on the motion of the appellee be docketed; and thereupon the court shall either render judgment for the appellee similar to the judgment appealed from, or shall with the consent of the appellee dismiss the appeal.

This section thus provides two waj^s of disposing of the case after the appellant has failed to file the transcript and perfect his appeal. The two conditions of the undertaking for appeal prescribed by section 112, seem to be designed to preserve the liability on the appeal bond, whichever of the two courses provided in this section shall be pursued. If the appeal be dismissed, the surety in the undertaking would be liable under the first condition. In that case the surety would not be liable upon the second condition, for in that condition he undertakes to pay such judgment as may be rendered on appeal. If the case were disposed of on filing the transcript by the appellee, by judgment for the appellee similar to the judgment appealed from, the surety would not be liable upon the first condition, for the reason that in that condition he undertakes that the appellant will prosecute his appeal to effect and without unnecessary delay.

If there were any doubt that the two prescribed conditions of an undertaking for appeal apply only to the position of the case as- it may have been disposed of under section 116, section 120 of the same act would seem to be conclusive of that view. That section provides that when an appeal shall be dismissed, or when judgment shall be entered in the court of common pleas against the appellant, the surety in the undertaking for appeal shall be liable to the appellee for the whole amount of debt, costs and damages recovered against the appellant. This section prescribes the cases in which the surety shall be liable.

Neither part}1- having filed a. transcript in the court of common pleas in this case, its situation is determined by reference to section 118, S. & C., 790, which provides that if both parties fail to enter such appeal, within the time limited, the justice, upon receiving a certificate of the clerk of the court of common pleas, stating that such appeal was not entered, shall issue‘execution upon the judgment as if nof such appeal had been taken.

The appellee having failed to file a transcript in the case, is not in position to enforce the undertaking for appeal. In Job v. Harlan, 13 Ohio St., 485, it is suggested in the opinion of the court, that the surety in the undertakingfor appeal might be liable under the first condition prescribed by the statute, when the appellee failed to file a transcript, for the reasons that the appellee at the time for filing the transcript might be “ prostrated by disease ” or “ might be absent,” or “ might rely upon the good faith of the appellant in taking the appeal,” and therefore fail to file a transcript.

The statute provides for the appellee a full and complete indemnity for his judgment against the appellant in every position in which the case may be placed by the appellant, upon compliance with the provisions above referred to.

And to say that this indemnity may be lost in any of the contingencies suggested in Job v. Harlan, is to say that it may be lost by neglect.

Counsel for plaintiff in error refer to Rockwell v. Rogers et al., 15 Ohio St., 544, and upon authority of that case submit that the defendants below are liable upon the undertaking for appeal as a common law obligation. In that case the undertaking was for the stay of execution, and wdiile it was in the form of a statutory undertaking for stay of execution, it was supported by a distinct consideration. The undertaking was not given within the time required by statute, and it was given in consideration that the plaintiff in the execution would release a levy on property and delay the enforcement of his judgment for the time the judgment was entitled to a stay of execution”. In this case, no consideration appears. The undertaking was only for appeal. It was given within the time required, but both parties after it had been given neglected to take further action in the case, until this suit was brought. The appeal never had any existence, and the parties to the judgment were left to enforce it as .if no appeal had ever been attempted.

Judgment of district court affirmed.


text:
    Gorrell v. Kelsey.
    S. purchased certain real estate at Master Commissioner’s sale. An execution in favor of M., a judgment creditor of S., was levied on the premises before S. had possession or a deed of the same.

      Held: That M.’s levy was invalid; and that K., another judgment creditor of S., in whose favor an execution was levied on said premises after S. had possession and a deed of the same, acquired alien thereon, and should be first paid out of the proceeds of the sale thereof.
    Error to the District Court of Belmont County.
    Upon affidavit that the controversy therein was real, and that the proceedings in the case were in good faith, and to determine the rights of the parties, the following agreed statement of facts and submission of case, was filed June 26, 1879, in .the court of common pleas of Belmont County, to wit.:

      “Edmund G. Morgan v. James Kelsey.
    “Now come Edmund G. Morgan and James Kelsey, the parties in this case, and, on the following agreed statement of facts, submit to the court a certain matter in controversy between them as to which has the -prior and better lien on a certain piece and parcel of land hereinafter described.
    “ The facts material to the question are agreed to be as follows:—
    “ At the fall term of this court A. D. 1877, said Morgan recovered a judgment against one Samuel A. Shupe for the sum of $1,230.16, and interest at 8 per cent, on judgment, which judgment is in full force and wholly unpaid.
    “On July 17,1878, in a suit-begun in this court April 10, 1878, on a joint and several promissory note, said Kelsey took judgment against said Samuel A. Shupe for the sum of $971.45, %nd $14.66 costs, and said judgment is still in full force and wholly unpaid/ The original summons against said Samuel A. Shupe was returned, not served; and an alias summons issued for him, June 5th, 1878, and was returned, served. The term of court commenced April 23d, 1878. Said Shupe was surety on said note, and was so certified. The principal had no property subject to execution.
    “ On June 5th, 1878, certain premises, to wit.: forty-five (45) feet off the West end of lots nine’ (9) and ten (10), of Block four (4) in the city of Bellaire, County of Belmont, and state of Ohio, were returned to this court as sold, under an order of sale issuing therefor, to the said Samuel A. Shupe for the sum of $1,600; and on July 17th, 1878, said sale was confirmed by this court, and the Master Commissioner making the sale was ordered to make a deed for said premises to said Shupe on the payment by him of the purchase money.
    “ At the date of the decree for the sale of said premises, said Shupe was the owner and holder of a mortgage lien thereon for over $2,000, subject, however, to prior liens amounting to between $500 and $600; and on July 18th, 1878, said Master Commissioner received the check of said Samuel A. Shupe, drawn on a bank in Columbus, Ohio, for the amount of the purchase money not coming to said Shupe (about $521); and the same was duly forwarded to Columbus, and paid on presentation ; and the deed for said property was delivered to said Samuel A. Shupe on August 2d, 1878, and dated August 1st, 1878; and on August 1st, 1878, said Shupe took possession of said property, and has kept the premises ever since.
    “On July 20th, 1878, execution issued in favor of said Morgan on his judgment against said Shupe, and on July 22d, 1878, said execution was duly levied by the sheriff of said county on the premises before described as the property of said Shupe.
    “On August 13th, 1878, execution was issued on said Kelsey’s judgment against said Shupe, and on the next day said execution was duly levied upon said premises.
    “ On both said executions the sheriff made return of no sale for want of time.
    “A vendí exponas was issued in case of Kelsey v. Shupe on February 18th, 1879; and in the case of Mprgan v. Shupe on March 11th, 1879; but said property did not sell when offered on account of the uncertainty as to which of said parties had the prior lien; and said property is now advertised for sale under the judgment of said Kelsey. Said parties desire the decision of this court as to which has the prior lien upon said property, or upon the proceeds thereof, if sold.”
    Said property was afterwards sold, and the court of common pleas adjudged, as conclusion of law, that said Morgan had by his said judgment and levy, a lien upon the real estate described in the agreed statement, prior to the lien thereon of the judgment and levy of said Kelsey; and that after payment of costs, the sum due upon said judgment of Morgan be first paid out of the proceeds of the sale of the real estate aforesaid. °

      After the proceedings in the court of common pleas, the said Morgan deceased, and the said James B. Gorrell was appointed and qualified as the administrator of his estate. On petition in error, the district court adjudged that said Kelsey by virtue of his said judgment and levy had the first lien, and prior to that of said Morgan, upon said real estate, for the payment of said judgment; and that the sum due on said Kelsey’s judgment, with original and increase costs, and interests, be first paid out of the proceeds of said sale; and that the remainder, if my, be paid upon said judgment of said Morgan.
    It is asked, that the judgment of the district court be reversed, and that of the court of common pleas be affirmed.

      Rees £ Gfallaher for plaintiff in error:
    Cited 6 Ohio, 156 to 162; Jachnan v. HallocJc, 1 Ohio, 318; Baird v. Kirtland, 8 Ohio, 21; Rev. Stats., §§ 5, 375; Gw'ynne on Sheriffs, 313, 386.

      J. B. Smith and St. Glair Kelly for defendant in error.
   Dickman, J.

Neither the judgment of Kelsey nor that of Morgan was a lien on the premises which were thereafter conveyed.to Shupe by the master commissioner. “The existence, validity, and extent of a judgment lien are mat-' ters purely legal, dependent upon statutory provisions.” Douglass v. Huston et al., 6 Ohio, 162. The interest which a judgment may bind must be one which can be levied on and sold to satisfy it. Roads v. Symmes, 1 Ohio, 314. Shupe did not take possession of the premises until August 1, 1878, and the deed of that date was delivered to him August 2, 1878. Until delivery of the deed, his rights as purchaser were inchoate and imperfect. By possession of the premises and delivery of the deed duly executed and acknowledged, his title was perfected. Under the provisions of the statute regulating sales on execution, the deed gave him a “ good and perfect estate in the premises.” 51 Ohio Laws, 57, §438. But the execution in’favor of Morgan was levied July 22, 1878, fully ten days before Shupe had taken possession or received a deed of the premises, and before he was vested with an interest therein, that could be levied on and sold to satisfy a judgment against him. Morgan’s levy was therefore invalid. The principle governing the case of Haynes v. Baker, 5 Ohio St., 253 is applicable to the case at bar. . Following and approving that case, we are of the opinion, that Kelsey, by virtue of the levy of the execution in his favor after Shupe had entered into possession and received a deed of the premises, acquired a valid lien thereon, and should be first paid out of the proceeds of tbe sale of the same.

The judgment of the district court must be affirmed.

Judgment accordingly.


text:
    Railroad Co. v. Depew.
    Where a locomotive with ears attached is standing on a railroad track near a railroad station or other place where cars are frequently moved forward or backward, a person who goes upon the railroad track, seeing the locomotive and cars, and knowing that they would, within a few minutes, he moved towards him, and walks upon the track away from the train without keeping watch of its movements, when there was nothing to hinder him from seeing the movements of the train in time to avoid danger, and when he could have gone in the same direction without walking on the track, is guilty of such negligence as will prevent his recovery for an injury caused by the carelessness or unskilifulness of the employes of the railroad, not amounting to willfulness on their part.
    A person so walking upon a railroad track is not free from negligence which will prevent his recovery for an injury so caused, if he omits to keep watch of the movements of the train, relying upon a rule or custom of the employes of the railroad, to give a signal for the moving of the train.
    The expectation that such signal would be given does not relieve a person in such situation, from constant watchfulness for his safety.
    Error to District Court of Guernsey Count3r.

      The original action was brought in the court of common pleas of Guernsey county, by Abraham Depew against the Baltimore and Ohio Railroad Company for damages for an injury alleged to have been sustained by reason of the carelessness and negligence of the defendant in moving a train of its cars at a place on the railroad called Gibson’s station.
    The plaintiff alleged in his petition that a county road crosses the railroad near the station, and that after a train of cars had reached the station and stopped, the defendant caused the train to be cut and a part of it to approach the crossing and pass rapidly over the same, and negligently and carelessly omitted, while approaching the crossing, to give a signal by bell, whistle or otherwise, by reason whereof the plaintiff was not aware of their approach, and by reason of the negligence of the defendant, the cars struck him and caused the injury complained of.
    The defendant in its answer denied that the injury to the plaintiff occurred from any want of care or by negligence on its part, or that of its employés; but alleged that whatever injury the plaintiff received resulted from want of care, and negligence on his part at the time it occurred.
    The facts material to the issue between the parties as they appear from the record, are that the railroad at Gibson’s station runs nearly east and west. Two county roads cross the railroad, one just east of the station and the other 325 feet further cast.
    There is a side track extending from a point 82 feet east of the east county road, westward to a point about 600 feet west of the west county road.
    Abraham Depew, on February 27th, 1871, arranged with the agents of the company for the transportation of himself and family and his household goods and some live stock from Gibson’s station to Pana, Illinois, and the Company furnished him a car in which to place his property. On February 28 he placed his property in the car for transportation and the car was pushed by the agents of the Company to a point on the side track about midway between the county roads. This car was to be taken into a freight train going west at this station about 9 o’clock A. M., on February 28.
    After Depew had loaded his property in the car, he went to the railroad office at the station and procured the necessary tickets, bills of lading and passes for the transportation of himself and servant and property to their destination.
    While he was thus engaged at the office, the train which was to take the car with his property and his servant in charge of the property-, came to the station and stopped. The conductor was informed that the car was to be placed in the train. The train was then backed east over the East County road, and the caboose and three box cars were left about 200 feet east of that road. The forward part of the train then returned to or near the west county road, and the men in charge of it proceeded to pole or push out the car containing Depew’s property eastwardly along the side track to the main track in front of the cars standing east of the east county road.
    After Depew had finished his business at the office, he walked eastward intending to go to the caboose, and go on the train to the first or second station westward.
    In going from the office to the caboose he walked between the side track and the main track to a point about thirty yards west of the east county road, and there stepped on the main track and walked on it eastward until he came near to the east county road. At this point he was overtaken by the locomotive and cars backing eastward. The rear car struck him and threw him forward on the track and some part of the car passed over and injured his foot and leg.
    At the time he stepped on the main track he looked around and saw the locomotive with the cars attached to it standing on the main track about thirty yards west of where he stepped on the main track.
    After thus looking and seeing the locomotive and cars standing still, he continued to walk eastward on the main track about thirty yards without turning around or looking further to see whether the cars were moving or not. While he was thus walking on the track he did not hear the whistle or the bell of the locomotive nor any noise of the moving cars. During this time he was earnestly engaged in conversation with one Tobias Lent, who was walking along the track eastward, on the south side of it.
    Mr. Depew could have crossed the track at the place where he stepped on it and could have walked along by the side of it eastward; but the ground there was not as smooth and the walking not as good as it was on -the track where he was walking at the time he was hurt.
    The record contains all the testimony given or heard upon the trial.
    The defendant requested the court to instruct the jury as follows: “If the jury shall find from the testimony that Depew, at the time he was injured, was walking upon the main track of the railroad, and was not using the east county road as a crossing to reach the caboose, the fact that no signal was given by the engineer in charge of the engine, of the moving of the engine and cars attached toward that crossing, would not be such neglect as would render the company liable for the injury, unless the conductor or engineer in charge of the train or engine knew at the time the train was being backed that Depew was on the track, and they then failed to give him warning, by signal or otherwise, of the approach of the train in the same direction on the same track.” Which instruction the court refused to give, and thereupon, besides many other instructions and charges given to the jury, the court gave the following:

      5. “But if you find from the evidence that there was a uniform custom or rule of the defendant, its agents or employés to give a signal by ringing of the bell or blowing of whistle when its train is being moved under the circumstances it was being moved at the time of the injury to plaintiff, that the same was notorious and well known to the plaintiff, and that the employés of the defendant omitted to-give such signals and that the plaintiff by reason of such omission was injured without any fault or negligence on his part contributing to the injury the defendant would be liable.” To which the defendant excepted.

      A. W. Train, for plaintiff in error.
    The negligence of defendant contributed to the injury. Barker v. Savage, 45 N. Y., 191; Gorton v. Railroad Go., Id., 660; McGrath v. Railroad Qo., 59 N. Y., 468; Railroad Go. v. Snyder, 24 Ohio St., 670; Railroad Go. v. Crawford, 24 Ohio St., 631; Railroad Go. v. JElliott, 29 Ohio St., 341; Wharton on Neg., § 300.

      Taylor §• Anderson and B. W. Wood, for defendant in error,
    claimed that there was no negligence on the part of defendant in error, and cited Wilson v. Northern Pao. R. R. Go., 26 Minn., 278; Penna. R. R. Go. v. Roy, 302 U. 8., 457; Cooly on Torts, 552; Railroad Go. v. Mowry, 36 Ohio St., 418; Bonnell v. Bel. Lack. Western R. R. Go., 39 N. J. Law, 189; Knight v. P. §■ S. R. R. Go., 56 Maine, 234, 252; M. Blroy v. N. $ L. R. R. Go., 4 Cush., 400; March v. Qoncord R. R. Go., 29 N. IL, 9; - Penn. R. R. Qo. v. Nenderson, 51 Pa. St., 315; Qohen v. Nance, 1 McCord, S. C., 439; Longmore v. G. W. Ry. Go., 115 E. C. L., 183; Nicholson v. L. f Y. Ry. Go., 3 H. & C., 534; Martin v. G. N. Ry. Go., 30 E. O. L. & Eq., 473; 41 Mich., 667.
   McCauley, J.

The serious question, in this case, on the trial in the common pleas, was whether or not, the facts of the case made the defendant liable. The petition alleges a failure to ring the bell or sound the whistle of the locomotive at a road crossing, in consequence of which the injury occurred. The proof shows that Depew, the plaintiff, had business with the agent of the Company at Gibson’s station, and after he had finished his business at the office of the Company, he went eastward intending to go to the rear car of that part of the train east of the east county road.

The proof also shows, and the testimony of the plaintiff himself is, that while he was going to the rear car of the train, he saw the locomotive with two cars attached standing on the main ti'ack, that he Avent eastward to a point about thirty yards west of the east county road, Avalking between the main track and the side track, and' there stepped on the main track and Avalked upon it, knoAving the engine and cars were standing a short distance west of Avhere he got on the.track, and knowing also that they Avere likely to move toward him at any moment.

When he stepped on the track he looked at the train and it was standing still. He then Avalked along the track eastward, and did not again look around to see Avhether it was standing or moving.

He claims that Avhile he AVas thus walking on the track he omitted to look around, because he expected if the train moved, he would hear a signal from the locomotive, and • hearing none he kept on his way until the backing cars struck him.

. It is very clear from the facts testified to by the plaintiff, that the liability of the defendant does not depend upon the failure of its employés operating the train, to give notice of its approach to a road crossing. The plaintiff Avas not upon a public road and the injury did not occur upon a road.

This is the ground of liability alleged in the petition, and AA'hile the proof does not tend to sustain it, yet where the testimony is all before the court, if upon any other ground the liability can be sustained upon the proof, the judgment should not be reversed.

The liability of the defendant, upon the facts in evidence upon the trial depends, firstt upon the question whether the plaintiff Avas guilty of negligence in Avalking on the railroad track at the place and time and under the circumstances under Avhich he did it; and secondly whether he might walk on the track and rely upon a signal for the moving of the train to notify him to leave the track.

These questions involve nothing more nor less than the doctrine of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff. Adoctrine so well settled that no authorities need be cited to direct in its application to this ease.

•The plaintiff knowing that the tiain would soon move backward, went upon the track at a station a few yards in the rear of.the train, and thence walked from the train, and did not take the care to look around, or in any way keep a lookout for its movements until the backing cars struck him, and this, when there was nothing to hinder him from turning around, and nothing to prevent him from plainly seeing the train if he had looked for it.

It cannot be otherwise than that this is such negligence on the part of the plaintiff as should prevent his recovery, unless he had shown that the men operating the train wilfully and purposely ran the cars against him. He voluntarily and needlessly put himself in a highly dangerous place, a place, however, wheré he might go without incurring any liability as a wrong-doer; but where his own safety-required his attention to his surroundings without one moment’s interruption. If he risked himself in such a place, he must take whatever injury came from his own want of attention to his danger.

Shall the plaintiff walk upon the track and depend upon a signal for .the moving of the train, to notify him of danger? In doing this he took all risks upon himself. The men operating the train were under no obligation to signal the moving forward or backward. The)1- did that, if at all, for their own convenience, not to notify persons to get off the track. And certainly no such signal should be required when no one was «seen upon the track.

The plaintiff does not claim that as matter of law he was entitled to this notice. He was not crossing the track at a highway; but he claims that, knowing the custom or rule of the defendant to give a signal for moving in either direction, he might safely rely, and did rely, on the fact that the train would not move without giving a signal.

The plaintiff was in a. place of too great danger to hazard his safety upon a signal which might or might not be given.

The uncertainty that the signal would be given, or that he would hear it in time to avoid danger was too great to authorize him to omit all further care or watchfulness, and depend upon the signal alone. The plaintiff, Depew, urns therefore clearly so careless and negligent in keeping watch of this train that his injury came from his own fault. It does not appear that the defendant was in any fault. Its employés backed the train, at a speed and in a way not unusual, and struck the plaintiff, not seeing him or knowing he was on the track.

The instruction to the jurjr requested to be given by the defendant in the common pleas, and which was refused by the court, states the exact rule of liability in the case.

This request proceeds upon the ground that the plaintiff, while walking on the railroad near where ears were standing and liable to move at any moment, was not entitled to notice or signals of the moving of the cars. And the railroad would not be liable for his injury unless the men in charge of the train knew he was on the track and failed to give him warning of the movement. This instruction should have been given, and its refusal we think was error.

The court thereupon did instruct the jury that if there was a custom or rule of the defendant to give a signal by bell or whistle, when a train is about, to be moved, and that the rule was notorious and known .to the plaintiff and the employés of the railroad omitted to give the signal, and that by reason of .such omission the plaintiff was injured, without any fault or negligence on his part contributing to the injury, the defendant would be liable.

This instruction nmke.s the liability of the defendant to turn upon the omission to give the signals. It assumes that’ when the plaintiff went upon the track, he might safely remain there until he got a signal to leave it, or that he might remain there relying that the signal would be given, and he would hear it in time to avoid danger. And it implies an obligation to give the signal.

For reasons already stated we think there is error in this instruction. It is also misleading. It implies that if the signals were omitted the defendant would be liable, if the plaintiff were guilty of nothing more than walking on the track. The charge states that if the plaintiff was injured without any fault or negligence on his part the defendant would be liable; but omits to state what would be fault or negligence on his part.

The jury with this instruction thus incomplete would readily conclude that as the walking on the track without a constant lookout for moving cars was not designated as negligence, there was none on the part of the plaintiff; and the only question of fact left to be determined from the evidence was the omission to give the signals. And hence the liability of the defendant depended wholly upon that fact.

The question of negligence is generally a mixed question of law and fact, and a charge to a jury that a plaintiff must be without fault or negligence, without stating what facts in the case would be fault or negligence, leaving the jury to find what the facts are, is a statement of an abstract rule of law, and leaves the jury without any direction as to the legal effect of the principal facts of the case.

On the trial in the common pleas after the plaintiff had rested his case, the defendant moved the court to direct the jury to return a verdict for the defendant upon the case made by the plaintiff. This motion was overruled and refused, and this refusal is assigned for error.

The view we take of the case does not make it necessary to determine whether there was error or not in this action of the court. We are of opinion that the proof of negligence on the part of the plaintiff was so clear, and the proof of negligence on the part of the defendant was so slight, as to require the court to set aside a verdict fpr the plaintiff on such evidence. It follows from this that the assignment of error that the verdict is not .sustained by sufficient evidence is fully sustained.

Judgment reversed.


text:
    Compton, Ault & Co. v. Wilder.
    W., a citizen of Pennsylvania, was extradited from that state upon a requisition issued by the Governor of Ohio, upon application of C., A. & Co., in a criminal prosecution instituted by them in Hamilton county.

      Held, That the service of a summons and an order of arrest, issued in a civil action brought by C., A. & Co. against W., and made upon W. directly after he had entered into a recognizance to appear before the court of common pleas at its next term, and before conviction and before he had an opportunity to return to his home, was rightfully set aside.
    Error to the District Court of Hamilton County.

      T. O. Campbell and JE. C. Mewett, for plaintiffs in error.
    ' As to whether a person extradited from a foreign government can be tried for another and different offense, see Heilbrown’s case, Foreign Relations of U. S., 1876, pp. 213, 214; Clark on Extradition, 101; 4 Canada R, C. P., 228; • 10 Lower Canada Jurist, 11, 212, 352; JRoenbam’s case, Foreign Relations of U. S., 235; Clark on Extradition, 90, 91; 8 Blatchford, 131; 13 Id., 295; 59 N. Y., 110; 17 Albany L. J., 407. As to whether defendant was exempt from arrest, Goodwin v. Lordon, 1 Add. & Ellis, 378; Man v. Eye, 71 E. C. L. R., 393; 10 Wend., 636; 27 Vt., 763; 59 N. Y., 110; Moor v. Green, 73 N. C., 494; Browning v. Abram, 51 Hon., 172; Gill v. Miner, 13 Ohio St., 182.

      O. B. Matthews and B,amsey Matthews, for defendant in-error.
    Outside of the actual intention of the plaintiffs in bringing Wilder into this jurisdiction, the law will not, from motives of public policy, and from respect due to the extradition process, as -well as from regard for the rights of the defendant, uphold the proceedings of the plaintiffs.
    •If. a party be enticed or decoyed into the jurisdiction of a court, or induced to come by any device, and advantage is taken of his presence to serve him with process, it will bo set aside on motion or even after a general appearance in the cause. Stein v. Vallcenhuysen, 1 El., B. & E., 65; Granger v. Hill, Bing., N. C., 328; Williams v. Bacon, 10 Wend., 636; Snelling v. Watrous, 2 Paige, 314; Carpenter v. Spooner, 2 Sand., N. Y., 717; Leaver v. Bobinson, 3 Duer, .622; Bessie Evert's case; Beed v. Williams, 29 N. J. L., 385; Hunzer v. Bright, 52 111., 35; Goupil v. Simonson, 3 Abb. Pr. Rep., 474; Plimpton v. Winslow, 9 Fed. Rep., 365; Brooks v. Eanvell, 4 Id., 166; Gamed v. Griffin, 12 Id., 590; Atchinson v. Morris, IT Id., 582; Z7. /S', v. Bridgman, 9 Bis-sell, 221; Niehols v. Goodheart, 5 Brad. 111. Appellate, 574; Blair v. Tuttle, 1 McCrary, 372; Spear on Extradition, 65-103; 10 Am. L. Rev., 617; 14 Albany L. J., 96; 7 Am. L. Record, 713; 40 Mich., 729; 13 Am. L. Rev.,181; Work v. Carrington, 34 Ohio St., 64; Stieger v. Brown, 10 Reporter, 761; 2 Clifford, 309; 47 Wis., 623; 37 Haw. Pr., 235; 2 Paige Ch„ 314; 8 Barn. & Cr., 769; L. R., 15 Ch. D., 435; Hof. L., 3 App. Cases, 1322.
   Nash, J.

On the 3d of September, 1878, the defendant in error, David H.-Wilder, who was a resident of .Corry, Pennsylvania, was brought to Cincinnati by virtue of a. warrant issued by the governor of Pennsylvania upon the requisition of the governor of Ohio. Before that time a complaint had been filed by the plaintiffs in error, Compton, Ault & Co., with a magistrate of Hamilton county, charging said Wilder with the crime of having obtained their promissory note by false pretenses. It was in this prosecution that the requisition of the governor of Ohio was issued at the request of Compton, Ault & Co. On said 34 day of September, Wilder wras taken before the magistrate and gave bond for his appearance at 10 o’clock A. M., Sept. 4th, 1878. He did so appear, waived an examination, and entered into a recognizance to appear before the court of common pleas of Hamilton county, at the first daj' of the November term, 1878. Upon said bond being given, he was released from custody at about ll£ o’clock A. M. September 4th. ;The -next train for Cony, Pennsylvania, the home of Wilder, did not leave until the evening of Sept. 4th.

Upon said 4th day of September, Compton, Ault & Co. commenced a civil action against Wilder in the superior court of Cincinnati, grounded upon an alleged indebtedness arising out of the note mentioned in the criminal prosecution as having been obtained by false pretenses, and had ■ a summons and an order of arrest issued therein. Said summons and order of arrest were served in person upon Wilder during the afternoon-of September 4th.

September 5th, Wilder, by motion,' asked the court to set aside the service of summons and order of arrest and discharge him from custody. This motion was granted by the súperior court and exceptions were taken by Compton, • Ault & Co, The district court .of Hamilton county affirmed the judgment of the superior court. Now, the plaintiffs ask the reversal of the judgments of the superior'court of Cincinnati and of the district court of Hamilton county.

Wilder had been surrendered by the state of Pennsylvania, to be prosecuted by the state of Ohio and in her name for -an alleged crime. It was for this purpose alone that the state of1 Ohio asked his extradition. It was for this purpose alone that the state of Pennsylvania handed one of her citizens Over to the officers of Ohio.

This-proceeding took place -by virtue of that portion of section two, article four, of the constitution* of the United States, which provides -that a person charged in any state with treason,’felony or other crime, who shall -flee from justice and be found in another state shall, on demand of the executivé authority of the- state from which- he fled, be delivered up, to be removed to . the state having jurisdiction, and by-virtue of the laws of the’United States, enacted tb make this provision of- the constitution effective.

In this case this machinery'was set in .motion by Compton, ■Ault & Co. by their application to the governor- of Ohio. ■Good faith upon the part of these applicants and good faith upon -the part of Ohio to the surrendering state, demanded ¡that Wilder, having been by force brought into -Ohio, for a Bpecific purpose., should not be deprived of any rights, except such as he had forfeited by the commission of the alleged crime. He cannot be held to have forfeited any right before conviction. It is claimed that he was indebted to Compton, Ault & Co. If he was, it was his right to be sued in the jurisdiction in which he was domiciled unless he voluntarily came into the jurisdiction of Ohio.

It was bad faith in Compton, Ault & Co. to commence a civil action and attempt to serve a summons and an order of. arrest therein upon Wilder before conviction and before he had an opportunity to return to his home. It would become bad faith in this state if. her courts should make such service effective. It was a duty made incumbent upon the governor of Pennsylvania by the constitution of the United States, to surrender Wilder, upon proper application from the governor of Ohio. But as reflecting upon this question of good faith it is not irrelevant to look at the legislative enactments of this state upon this, subject.

March 25, 1870, the general assembly adopted a resolution relative to the surrender of persons charged with treason, felony or other crimes (67 Ohio Laws, 171). In this resolution it was suggested that, in the opinion of the general assembly, the governor of Ohio should not make a requisition for an alleged fugitive from justice until clearly satisfied that the requisition is sought in good faith for the pumishment of crime and not for the purpose of collecting any debt or pecuniary mulct, or for the purpose of removing the alleged fugitive to a foreign' jurisdiction with a view there to serve him with civil process. It also suggested that the governor should be in like manner satisfied, before issuing, his warrant upon a requisition made upon him by any other state for an alleged fugitive.'

The rule thus suggested has governed the executive department of the state since 1870. What was formerly a rule of the executive department, suggested by the general assembly, became a law controlling the action of the governor on the 1st of January, 1880. [Rev. St., § 95.]

By the action of the executive and legislative branches of her government, Ohio has indicated to the other states her purpose to .confine the use of the power to extradite persons charged with crime,' to its sole and proper object. To secure a service of summons, in a civil action like the one we are considering, is not one of the objects intended to be accomplished by this grant of power. In a country like ours this power is useful and indispensable. It was intended, however, to subserve great public interests. When otherwise used it becomes an evil.

The temptation to make it subservient to private interests is great. This weapon, intended alone to secure the punishment of crime, is frequently resorted to, to enforce the collection of private debts or to remove a citizen from his home' into a foreign jurisdiction that he may there be served in a civil action.

This growing evil .has been seen and appreciated by the chief executives of many states, and to guard against It rules and regulations are being adopted,' which may make the extradition of an alleged fugitive, in a proper case, extremely difficult. It has been recognized by both the executive and legislative branches of our government, as is shown by their former action.

The judicial should be as swift in putting the seal of condemnation upon this abuse as have been the other branches of the government. The certain remedy to prevent its growth is, to deprive all persons who participate in the misuse of the power to extradite persons, alleged to be fugitives from justice, of the fruits resulting from such participation.

' We approve of the conclusions reached by the superior, court of Cincinnati and the district court of Hamilton county and affirm their judgments.

Judgment accordingly,


author: Gbangeb, O. J.

text:
    Matthews v. Insurance Co.
    A fire insurance policy for five years required the insured to pay $16 cash, and give a note, payable, according to the terms of the policy, in equal installments, annually, for four years without interest; and stipulated that if any installment should not be paid within thirty days after due, the policy should be null and void until payment by the assured of the installment; but such revivor should not make the insurer liable for any loss occurring during the default.

      Held: While the policy was so null and void, no premium was earned by the insurer, and the insured is entitled to a credit on the note for the aggregate of such unearned premium.
    Error. Reserved in the District Court of Lorain County.
    Martin Matthews made a written application to'the American Insurance Company for insurance on his property for the term of five years from the first day of December, 1873, stipulating “ if any installment upon the premium shall remain due and unpaid thirty days, then the policy issued upon the application, in consideration of such installment, shall be null and void until the same is paid.” A policy making said application part • of itself was issued to him: he paid $16 cash premium and gave a note, promising to pay to the,company $16 on the first day of December, 1874, and-a like sum on said day in each of the three years next following. ' The policy provided for default in payment of any installment thus:
    “ This company shall not be liable * * * * * if default shall have been made.by the assured in the payment of any installment of premium due upon the installment note aforesaid, of the assured (or in case of the assignment of the policy, upon the installment note of the assignee,) for the space of thirty days after such installment shall become due by the terms of such note; provided, however, that on payment by the assured or assigns, of all installments of premium due under this policy and the installment note given thereon, the liability of this company on this policy shall again attach, and this policy be in force from and after such payment, unless this policy shall be void or inoperative from some other cause. Bat this company shall not be liable for any loss happening during the continuance of such default of paj-ment. * * * The application and description referred to in this policy, shall be considered part of this contract. * * * If the cash premium shall be unpaid, then and in every such case, this policy shall be void, and the assured shall not be entitled to recover from the company any loss or damage which may occur to the property hereby insured, or any part or portion thereof. When a promissory note is given by the assured, for the cash premium, it shall be considered a payment, provided such note is paid at or before maturity; but it is expressly understood and agreed, by and 'between the parties hereto, that should any loss or damage occur to the property hereby insured, and the note given for the cash premium or any part thereof remain unpaid and past due at the time of such loss or damage, then this policy shall be void. It is further provided that ho attempt by law or otherwise, to collect any note given for the cash premium, or any installment of premium due upon any installment note, shall be deemed a waiver of any of the conditions of this policy,, or shall be deemed in any manner to revive this policy; but upon the payment by the assured or his assigns, of the full amount due upon such note, and costs if any there be, this policy shall thereafter be in full force, unless the same be inoperative or void from some other cause than the nonpayment of such note.”
    The final clause of the policy read thus: “ This policy is made and accepted upon the above express conditions, and the charter of this company, which is to be resorted to and used to explain the rights and obligations of the parties hereto, in all eases not herein otherwise specially provided for, and which is hereby made part of this policy.”
    Matthews paid the-$16 due December 1, 1874, but made no other payment. About.September 5,1878, the company began suit before a justice of the peace, claiming $48 and interest. After judgment the ease was appealed and the companj1, recovered a judgment in the common pleas, on June 13, 1879, for $50.09. A motion for a new trial was overruled, exception noted, a bill of exceptions taken, and a petition in error filed in the district court, where the case was reserved for decision here.

      Metcalf f Weller, for plaintiff in error,
    relied on Yost v. Ins. Co., 39 Mich.,-; Ins. Co. v. Stoy, 41 Mich., 389.

      N. L. Johnson, C. 3. Doolittle and F. F. D. Allery for defendant in error.
    The condition in an insurance policy, declaring it void or suspended during default of payment of a premium note, is a valid condition, but subject to waiver. Williams v. Albany Ins. Co., 39 Mich., 451; Wall v. Ins. Co., 36 N. Y., 157; Balcer v. Ins. Co., 43 lb., 283; Pitts v. Ins. Co., 100 Mass., 500; Beadle v. Ins. Co., 3 Hill, 161; Jolliffe v. Ins. Co., 39 Wis., 111.
    The same form of contract declared on in this case, is held valid, and the premium note unpaid, at the time of default in payment by the assured, collectable. American Ins Co. v. 3enley, 60 Ind., 515; Same v. Klinlc, 65 Mo., 78.
   Gbangeb, O. J.

In the absence of an express agreement to the contrary, whenever the insurance ceases in favor of the company, the premium ceases to accrue against the insured. Tyric v. Fletcher, Cowp., 668; May on Ins., sec. 4; Am. Ins. Co. v. Stoy, 41 Mich., 394.

Here the company claims that such an agreement existed, by reason of the reference to the charter and its incorporation into the contract. But the charter was to be “ used to explain the rights and obligations of the parties hereto in all cases not herein otherwise specially provided for.” The policy itself specially provided for the case of a default in the payment of any installment of the premium note, giving full effect to the stipulation set out in the application. Taking policy and application together they told Matthews that, if he should fail to pay an installment when due, or within thirty days thereafter, the policy would be void, subject to revivor by payment — the company to be free from liability for any loss occurring during the interval of default. To add thereto an additional penalty, to require full payment.of premium for years in which the company was free from liability, would provide “ otherwise ” than as stated in the policy. A majority of the court are of Opinion that so much of the charter as makes the whole note due in case of a default in the payment of one installment did not form a part of the contract in this case. The supreme court of Michigan in American Ins. Co. v. Stoy, 41 Mich., 395, thus construed a similar policy, holding that the charter was “made apart of the policy for the purpose of explaining such rights and obligations of the parties as are not otherwise provided for by the terms of their agreement,” and that the application and policy fully and specially provided for the case of a default in the payment of an installment of premium, and the charter could neither enlarge, vary nor change' the written obligation.

The stipulations of the application and policy made the-policy null and void during the whole period of default. No provision was-made for a revivor save by the act of payment by the insured. Unless he should by his act restore its vitality it was to remain void. The premium note was part of the contract made by the policy, and was additional evidence of what the insured agreed to pay in consideration of the promises of the company. So soon as the policy became void the premium ceased to accrue, and the company lost the right to recover the unearned installments of the premium note. The policy constituted the contract between the parties. The application and notes were parts of it. To make the policy void was to, leave no contract between them in existence. To make it void until Matthews should pay the installments in default was to leave no contract between them except the stipulation, that he, by payment, might restore the contract. This suit was begun while the policy was in 'this state of suspended animation. A majority of the court are of opinion that the insured was entitled to a credit on his note for the aggregate unearned premium, to wit, so much of the premium originally contracted for as covered the time dining which the policy was null and void.

The judgment of the district court and common pleasure reversed.

Dickman and Martin, JJ., dissented.