text:
    Steel Works v. Dewey.
    1. D. agreed in writing to deliver to S. a certain quantity of iron ore, -at a specified price per ton, “ on the landing at C.,” and gave him an order therefor, and S. brought an action on the agreement, alleging that D. refused to deliver the ore. Held, it is competent to show that by the settled, uniform usage at 0., well known to the parties when they com tracted, one holding such order is entitled to have the ore taken from the pile on the landing and placed in his boats; that ore is not permitted to be removed, nor is it practicable to remove it, in any other manner; and that the ore is weighed when it is carried in the boats to its destination, and then payment therefor is made.
    2 In an action for refusing to deliver ore, prosecuted on an agreement in the same form, it appeared that the seller resided at another place, where he refused to deliver such order, and informed the purchaser that he would not comply with the agreement,—Held, that it was not necessary for the purchaser, after such refusal by the seller, to take boats to C. for the ore, or demand the ore at 0., the purchaser being able and willing to comply with such agreement as it existed in view of the usage.
    Error to the Superior Court of Cincinnati.
    On September 17, 1873, Dewey, Vance & Co. brought suit in the superior court of Cincinnati, against Swift’s Iron and Steel Works, a corporation, on the following instrument:
    “ Alex. Swift, Pres. Office of Swift’s Iron and Steel
    Geo. E. Clymer, Vice Pres. Works, Ño. 26 W. Third St.,
    Edwin Swift, Treas. Masonic Temple.
    “ Cincinnati, October 1, 1872.

      “ A. Swift, Esq., Cin&mnati, Ohio:

      “ Dear Sir :—We propose to deliver to you on the landing at Carondelet 1,000 to 1,200 tons Iron Mountain ore, near St. Louis, you to take it away during 1872, paying for the same $5.50 per ton, cash—it being understood that you are to deliver to us next spring at the same place the same quantity of ore at the same price.
    “ Yours truly,
    (Signed,) “ Dewey, Vance & Co.

      “ Accepted:
    (Signed,) “ Alex. Swift, Pres’t.”

    The plaintiffs sought in the action to recover damages from the corporation for its refusal to deliver to them ore in the spring of 1873.
    The corporation admits the non-delivery of the ore in the spring of 1873, and its failure to draw an order for ore on the Iron Mountain Company, but denies the plaintiffs are entitled to recover, because the contract is entire, and they failed to deliver to the corporation ore in the fall of 1872, in pursuance of the contract; and for the further reasons that the plaintiffs did not demand the ore to be delivered in 1873 at the proper time or place, did not have any boat at Carondelet landing to receive it, and were not ready and willing to pay for such ore; and, by way of counter-claim, the corporation asked damages for such failure to deliver ore in 1872. To this counter-claim there was a reply.
    A verdict was rendered in favor of Dewey, Vance & Co., for $3,090; and the cause having been reserved to the general term on a motion for anew trial, the motion was overruled, and judgment was rendered on the verdict. On leave, this petition in error was filed to reverse the judgment.
    The material facts, either admitted or shown by the evidence, are as follows: During the year 1873, and during many preceding years, Dewey, Vance & Co. was a firm engaged in the manufacture of iron at Wheeling; Swift’s Iron and Steel Works was a corporation engaged in the manufacture of iron and steel at Cincinnati and Newport; and the Iron Mountain Company was a corporation-at St. Louis, having a monopoly of the kind of iron ore mentioned in the above agreement.
    The Carondelet landing inferred to in the contract is owned by the Iron Mountain Company, is situated on the Mississippi river within the corporate limits of St. Louis, and the company owns all the ore placed thereon. The ore is kept in a pile, from which the boats of the company’s customers are loaded. No particular part of the ore is set apart to any customer*, biit the loading is done from that part of the pile nearest the boats. The ore is not weighed at the landing, but the weight is estimated by the displacement of the boats when loaded, a memorandum of the weight thus approximated is made, and that governs in the settlement and payment, if the ore or any part of it is lost in transit; but if none of it is thus lost, the actual weight is ascertained when the ore arrives at its destination, and payment is then made.
    The Iron Mountain Company, during the fall or early part of winter in each year, sends a circular letter to each of its customers, fixing the price of ore for the ensuing year. The price so fixed remains unchanged during such year. In the fall of 1871, the company fixed the price of ore for 1872, “ on the landing at Carondelet,” at $5.50 per ton. Ore ordered in pursuance of such circular must be taken away during such succeeding year, as the contract is canceled at the end of such year, as to any ore not removed. The company never permits ore to be taken from the landing in any other manner or upon any other terms than as above stated; but where a customer who has agreed to take ore gives orders to others for part or all the ore he contracted for, the company fills such orders, but still looks to the customer for payment.
    This mode of dealing with respect to Iron Mountain ore at Carondelet landing, has been for many years uniform, invariable and well known, and the parties to this suit were familiar with the usage, when the agreement was made, and contracted with reference to such usage.
    As early as May, 1872, Swift’s Iron and Steel Works had exhausted all the ore due to it for that year, under its contract with the Iron Mountain Company made the preceding autumn. In that month and again in August, Mr. Swift applied to the company for more ore, but the company refused, as it had contracted with others for all it could deliver during 1872. In that condition of things, Mr. Swift applied to Dewey, Yanee & Co. That firm had contracted with the Iron Mountain Company for more ore than it could use during 1872, and knowing that the contract would be canceled on January 1, 1873, as to any ore not taken away in 1872, it was willing to let Swift’s Iron and Steel Works have ore, provided it could obtain, in the spring of 1873, an equal quantity of ore at the price prevailing in 1872, that is, at $5.50 per ton, for it was then manifest that the price for 1873 would be much higher ; and in fact, in the fall of 1872 the Iron Mountain Company fixed the price of ore for 1873 at $10 per ton. Under these circumstances, the contract of October 1, 1872, was made at Cincinnati, and for the reasons stated, it was advantageous to both parties.
    An order was at the same time delivered to Mr. Swift in the following form:

      “ Alex. Swift, Pres. Office of Swift’s Iron and Steel
    Geo. E. Clymer, Yiee Pres. Works, No. 26 W. Third St., Edwin Swift, Treas. Masonic Temple. •
    “ Cincinnati, October 1, 1872.
    “ Iron Moumta/m Oo., St. Louis, Mo.:

    “ Gents : Please deliver to the order of A. Swift, Esq., one thousand to twelve hundred tons of iron ore out of the quantity contracted for by us, and oblige, yours truly,
    “ Dewet, Yanoe & Co.”
    The Iron Mountain Company was immediately informed of such order, and the amount of ore therein specified was placed on its books to the credit of Swift’s Iron and Steel Works.
    The water in the Ohio and Mississippi rivers was low in October and the early part of November, 1872, and no boats were sent for the ore. Later in November and during December, the rivers became so full of ice that it was impossible to remove the ore by boat during that year. Swift’s Iron and Steel Works applied to the Iron Mountain Company, while the river was thus filled with ice, for leave to remove the ore in some other manner than by boats, but the Iron Mountain Company declined to grant the request, and the ore was never obtained. In fact, there ‘is no other practicable way by which to remove ore from the landing than by boat.
    As already stated, no ore was delivered to Dewey, Yance & Oo. under the agreement, nor did they receive any order on the Iron Mountain Company for ore. They demanded of Swift’s Iron and Steel Works repeatedly, at Cincinnati, during May, 1873, compliance with the agreement as to the delivery of ore in the spring of 1873, insisting on an order on the Iron Mountain Company for such ore. The only reason given for non-compliance with the demands was the alleged noncompliance by Dewey, Yance & Co., with their agreement to deliver ore in 1872. Dewey, Yance & Co. were ready and willing to pay for the ore according to the custom already stated, that is, according to weight as ascertained on arrival of the ore at its destination, or in case of the loss of the ore or any part of it while in transit, according to its weight as ascertained by displacement, in the way stated.
    The objections of Swift’s Iron and Steel Works to a recovery on the part of Dewey, Yance & Co., and the grounds of recovery on the part of the former on their counter-claim, are presented in exceptions to the refusal of the court below to give certain instructions to the jury, and in exceptions to certain portions of the charge given. So far as it is necessary to state these exceptions, they will be found in the opinion of the court.

      Hoadly, Johnson & Colston and John Johnston, for plaintiff in error:
    No valid usage was- shown. S. W. Freight and Cotton Press Co. v. Standard, 44 Mo. 71; Ober v. Carson, 62 Mo. 209; Inglebright v. Hammond, 19 Ohio, 337; Edie v. East India Co., 2 Burr. 1216; Homer v. Dorr, 10 Mass. 26 ; Frith v. Barker, 2 John. 327, 335; Thompson v. Riggs, 5 Wall. 663; Robinson v. United States, 13 Wall. 363; Savings Bank v. Ward, 100 U. S. 195, 206; Randall v. Smith, 63 Maine, 105 ; Eager v. Atlas Ins. Co., 14 Pick. 141; Reed v. Richardson, 98 Mass. 216 ; Warren v. Franklin Ins. Co., 104 Mass. 518 ; Hone v. Mutual Safety Ins. Co., 1 Sandf. 137; Bargett v. Orient Ins. Co., 3 Bosw. 385; Minnesota Central Ry. Co. v. Morgan, 52 Barb. 217; Bank of Commerce v. Bissell, 72 N. Y. 615 ; Rapp v. Palmer, 3 Watts, 78 ; Raisin v. Clark, 41 Md. 158; Dewees v. Lockhart, 1 Texas, 535 ; The Pacific, Deady, 17; 6 South. L. Rev. (N. S.) 845; Schooner Reeside, 2 Sum. 569. And see Tilley v. County of Cook, 103 U. S. 146, 162.

      Follett & Cochran, for defendants in error :
    The usage shown is part of the contract. Broom’s Leg. Max. ch. X.; 2 Parsons on Con. 499, 535; Starkie on Ev. *710; Wigram on Ex. Ev. 57; Thompson v. Riggs, 5 Wall. 663 ; Barnard v. Kellogg, 10 Wall. 384 ; Robinson v. United States, 13 Wall. 363 ; Bradley v. Packet Co., 13 Peters, 89 ; Reed v. Ins. Co., 95 U. S. 23 ; United States v. Peck, 102 U. S. 64; Doane v. Dunham, 79 Ill. 131; Lyon v. Culbertson, 83 Ill. 33; Bailey v. Bensley, 87 Ill. 556; Soudder v. Bradbury, 106 Mass. 422; McMasters v. Penn. R. Co., 69 Pa. St. 374; Lucy v. Green, 84 Pa. St. 514; Brackett v. Egerton, 14 Minn. 174; Rindskoff v. Barrett, 14 Iowa, 101; Karmuller v. Kootz, 18 Iowa, 352 ; Hovy v. Pitcher, 13 Mo. 191; Sontier v. Kellerman, 18 Mo. 509 ; Patterson v. Camden, 25 Mo. 13; Gray v. Clark, 11 Vt. 385 ; 1 Taylor's Ev. 178 ; 2 lb. 990, 1002 ; Story on Sales, § 230; 2 Phillips on Ev. 726, 787; 1 Greenleaf’s Ev. §§ 292, 295; 2 lb. § 251; Gibson v. Stevens, 8 How. 384; Corbett v. Berryhill, 29 Iowa, 157; Boorman v. Johnson, 12 Wend. 573; Stapenhorst v. Wolff, 35 Sup. Ct. N. Y. 25; Heald v. Cooper, 8 Greenl. 32; Cushing v. Breed, 14 Allen, 376; Lockhart v. Bonsall, 77 Pa. St. 53 ; Carter v. Phil. Coal Co., 77 Pa. St. 286; How v. Barker, 8 Col. 608; Edwards v. Smith, 63 Mo. 119; Hall v. Smith, 16 Minn. 58; Hunter v. Salt Co., 14 Mich. 98; Douglass v. Garrett, 5 Wis. 85 ; Rice v. Cutter, 17 Wis. 351; Lamb v. Klaus, 30 Wis. 94; Lowber v. Bangs, 2 Wall. 737. And see Wiggleworth v. Dallison, 1 Smith’s Lead. Cas. 546 ; Benj. on Sales (2 Am. ed.) § 215, note; Leake on Con. 196; Anson on Con. 238; Bishop on Con. §§ 571, 572.
   Okey, J.

The question presented in this case is whether a purchaser of iron ore, to be delivered at a specified place, may be bound by usage as to the manner of delivering and place of weighing and making payment for the ore.

The written contract sued on is, as we have seen, an agreement on the part of Dewey, Yance & Go., defendants in error, to deliver to Swift’s Iron and Steel Works, plaintiff in error, “ on the landing at Carondelet,” at $5.50 per ton, cash, one thousand to twelve hundred tons of Iron Mountain ore, to be taken away by the latter during the year 1872; and also, an agreement on the part of the latter to deliver to the former, in the spring of 1873, at the same place and price, the same quantity of ore. If the parties are bound by the terms of this contract, unaided by extraneous testimony, it is clear that the judgment is erroneous. The plaintiff in error ■demanded the delivery of the ore, at the place named in the contract, and within the time there stated, and was then able and willing to pay for it, while the defendants in error did not demand ore at Carondelet, in the spring of 1873, nor were they there ready to pay for it. Under such circumstances, looking alone to the face of the agreement, the defendant in error would not be entitled to recover, but the plaintiff in error could maintain an action. Extraneous evidence, however, shows the rights and obligations of the parties to this instrument to be very different from those implied in the absence of such evidence. Such evidence shows, as we have seen, that there is a uniform, settled custom at Carondelet, well known to the parties, and -with reference to which they contracted, according to which a party holding such an order for ore as the plaintiff in error had, may present it to the agent of the Iron Mountain Company, at the landing, and have placed in his boats, from the pile there collected, the ore specified in the order, the Iron Mountain Company being the owner of the landing and the ore thereon; and that payment is made when the ore is carried by the boats to its place of destination, and there weighed, unless the ore or part of it is lost in transit, in which ease payment is made according to the weight estimated from the displacement of the boats at the time they are loaded. It further appears, that it was well known to both parties to the contract, at the time it was made, that the Iron Mountain Company never permits ore to be removed from the landing in any other manner, or upon any other terms or condition; indeed, that there is no other practicable mode of removing such ore. The question, therefore, is, whether it was competent to show such facts by such evidence, the plaintiff in error objecting; for, if it was, the plaintiff in error, not being able or or willing to remove the ore by boat, cannot recover damages for a refusal to deliver to it such ore.

Extrinsic evidence is admissible to show that the parties to a written agreement have contracted upon a common basis of usage, applicable to the business in which the contract is made, whereby they have impliedly assented to certain conditions not mentioned in the contract. With respect to usage of the character relied on here, it must appear, in order to be valid, that when the contract was made .such usage was uniform, well-established, and known to the parties ; but that the agreement is on its face free from ambiguity, or that such agreement with, and the same agreement without the incidents annexed, imports very different rights and obligations, affords no valid objection to such evidence. In Humfrey v. Dale, 7 E. & B. (90 Eng. C. L.) 266, Lord Campbell said: “In a certain sense, every material incident which is added to a written contract varies it, makes it different from what it appeared to be, and so far is inconsistent with it. If by the side of the written contract without, you write the same contract with the added incident, the two would seem to import different obligations and be different contracts.” And see Myers v. Sarl, 3 E. & E. (107 Eng. C. L.) 306. The usage, however, must not be inconsistent with the words of the agreement nor must it be unreasonable; but the usage here shown seems not to be obnoxious to either of these objections. Robertson v. Jackson, 2 M. G. & S. 412; Leidemann v. Schultz, 14 C. B. 38 ; Cuthbert v. Cumming, 10 Hurl. & Gord. 809; affirmed, 11 Ib. 205.

The cases relating to usage of this character seem not to be in entire harmony. It is difficult to extract from them any more definite rules by which to determine the validity of such usage than those already stated. It is sometimes difficult, moreover, to determine whether the law, in a particular case, will or will not permit such proof. Each case must be determined by itself, aided by such light as may bo derived from the judgments in other cases where the facts are analogous. Upon consideration of the cases cited in argument, and others, we unite in holding that the proof offered in this case to show usage was competent; and there being no substantial conflict as to the facts, the rights of the parties arc determined by such proof. As the plaintiff in error never demanded the ore upon the order, though the defendants in error were able and willing to deliver it, in pursuance of the contract with such incidents annexed, a right to recover damages, with respect to the ore of 1872, never accrued to the plaintiff in error; and, for the same reason, it is wholly immaterial whether the covenants in the agreement should be regarded as dependent or indefiendent So, it is immaterial whether the court properly construed the contract, in charging the jury that if Dewey, Yance & Co. were entitled to recover, one thousand tons of ore would be the basis of such recovery; for if the construction was erroneous, the error was favorable to the plaintiff in error. And these views likewise dispose of the remaining question, as to the right of the defendants in error to recover for the failure of the plaintiff in error to deliver to them ore in the spring of 1873, and sustain such recovery; for the ore ■ could only be obtained on the order of the plaintiff in error; and when the defendants in error, at Cincinnati, in the spring of 1873, demanded such order, the plaintiff in error refused to give it, or to comply with the contract, the defendants in error being at the time able and willing to comply with the agreement in accordance with its terms and such annexed incidents. In view of these facts, the defendants in error were not required to demand the ore at Carondelet in the spring of 1873, or have boats there to receive it. Lowry v. Barrelli, 21 Ohio St. 324. And this is not inconsistent with Mowry v. Kirk, 19 Ohio St. 375, or Simmons v. Green, 35 Ohio St. 104.

The rulings in the court below are not inconsistent with the views here expressed, nor is there any error in the record, and therefore the judgment will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: White, J.

license: Public Domain

text:
    The State ex rel. Attorney-Genebal v. John W. Merchant et al.
    1. The right of the stockholders of a railway corporation to elect directors is not affected by the sale of the property of the corporation by a receiver, under an order of court.
    2. At a meeting of the stockholders, called for the election of directors, under section 3246 Revised Statutes, the right to choose the inspectors or judges of election is vested in the stockholders, and the directors, against the will of the stockholders present, cannot appoint such inspectors.

      Quo- WAREANTO.
    This is an information in the nature of quo warranto, brought by the attorney-general against John W. Merchant and others, defendants, to oust them from the office of directors of The Columbus, Washington and Cincinnati Railway Company, a corporation organized under the laws of this state.
    The petition sets forth the names of Thomas Smith and-others, who claim to be entitled to the office of directors of said corporation, and avers their right thereto.
    It appears that the defendants were the directors of said corporation, elected at the annual election held on the first Monday of January, 1879. On the first Monday of January, 1880, being the day for the annual election, no election was held; and that afterwards due notice was given in accordance with the statute by certain stockholders of the holding of an election for directors at a time and place specified. A meeting of stockholders was lield’in accordance with the notice. After organizing, the stockholders present elected inspectors, or judges of the election, and also a clerk, who were all duly sworn. Whereupon the judges declared the election open and proceeded to receive the votes of stockholders. The election thus held resulted in the election of Smith and others, who are averred in the petition, as above stated, to be entitled to the office of directors of said corporation.
    There were present at the meeting a quorum of the directors elected in 1879, who claimed the right to hold the election. Before the inspectors, or judges and clerk, elected as above stated were sworn, John W. Merchant, president of the board of directors, appointed from the members of the board judges to hold the election ; he also appointed a clerk, and then declared the election open. At this election stockholders voted. The election thus held by the directors resulted in the election of the defendants. Both sets of directors took the oath of office.
    It does not appear from the pleadings that any election has since been held.
    It also appears that on September 9, 1878, the court of common pleas, on the application of certain bondholders, appointed a receiver, who took possession of the assets of the company, and subsequently, under an order of said court, the railroad of said company, with its equipments and appurtenances, was sold as an entirety.

      George K. Nash, attorney-general, and Nesbitt & Martin, for plaintiff.

      Charles Darlington, for defendant.
   White, J.

The appointment of the receiver, and the sale of the property of the railway company, have no bearing on the question before us. These facts did not work a dissolution of the corporation, and while the corporation continued it was competent for the stockholders to elect directors.

The only other question for determination is, whether the election held by the directors or that held by the stockholders is the valid one.

The statute on the subject is as follows: “ Unless the regulations of the corporation otherwise provide, an annual election for trustees or directors shall be held on the first Monday in January of each year; if the trustees or directors are, for any cause, not- elected at the annual meeting, or other meeting called for that purpose, they may be chosen at a members’ or stockholders’ meeting, at which all the members or stockholders are present in person or by proxies, or at a meeting called by the trustees or directors, or any two members or stockholders, notice of which has been given, in writing, to each stockholder, or by publication in some newspaper printed in the county where the corporation is situate, or has its principal office, for ten days ; and trustees and directors shall continue in office until their successors are elected and qualified.” Rev. Stat. § 3246.

There were no regulations of the corporation governing the election of directors. The claim of the attorney-general is, that at the meeting of the stockholders for the election of directors, the right of choosing the inspectors or judges of the election was vested in the stockholders ; while the defendants claim that the right was vested in the directors. We think the position of the attorney-general is correct; and that the directors, in assuming that function against the will of the stockholders present, mistook their duty and exercised a function not warranted by law. The election, therefore, which they undertook to hold is invalid. The election held under the authority of the stockholders was legal; and the persons declared elected at the. election last named, having been duly qualified, were entitled, under the statute, to hold the office until their successors were elected and qualified. The pleadings show no subsequent election.

Judgment of ouster rendered against the defendants; and the persons chosen as directors at the election last mentioned adjudged entitled to the office under such election.


author: Okey, J.

text:
    Thorne v. First National Bank.
    An instrument in the form of a warehouse receipt, executed by a debtor to his creditor, on property owned by the debtor, who is not a warehouseman, for the sole purpose of securing such creditor, is void as against other creditors, where the property remains in the possession of such debtor. Gibson v. OMllicotfoe Bank, 11 Ohio St. 811, distinguished.
    Error to the Court of Common Pleas of Clinton County. Reserved in the District Court.
    In 1876, Elias Thorne brought suit in the Court of Common Pleas of Clinton county, against the First National Bank of Wilmington. The cause was submitted to a jury, on the petition, answer and evidence, and a verdict was found in favor of the defendant, and, after a motion for a new trial had been overruled, judgment was rendered on the verdict. All the evidence is set forth in a bill of exceptions, which is made part of the record. The material facts are as follows: In 1871, S. M. Thorne, I. C. McMillan and J. H. McMillan formed a partnership and engaged in the business of slaughtering hogs and packing pork, under the firm name of Thorne, McMillan & Co. The business was carried on at Wilmington, Clinton county, and the partnership continued until the spring of 1874.
    On November 6, 1873, Elias Thorne loaned to the firm $2,600, on December 3, 1873, $2,600, and on December 22, 1873, $8,000, to be used generally in their business. The first two loans were at sixty days, and at the expiration of that time they were extended, and the last loan was at ninety days. It was understood when these loans were made, that security for their repayment was to be given, and at the time the last sum was advanced, H. T. Davis became surety for that sum. As further security for the repayment of that sum, the firm executed and delivered to Elias Thorne, at the time the money was advanced, a certain instrument in writing, and on December 25, 1873, the firm executed and delivered to him another instrument as security for the payment of the sums first men- ' tioned, which instruments are in the following form:
    “Wilmington, Dec. 22d, 1873.
    “We have received from Elias Thorne, of Skaneateles, New York, on storage, six thousand hams in process of curing, which we hold subject to his order, and to be delivered to him free of expense of curing, on presentation of this warehouse receipt, on which we have received an advance of ($8,000) eight thousand dollars; said hams stored in our porkhouse, Wilmington, Clinton county, Ohio, in casks marked E. Thome.
    “ Thorne, McMillan & Co.

    “ Attest: H. T. Davis.”
    “Wilmington, O., Dec. 25th, 1873.
    “ Received of Elias Thorne five thousand dollars ($5,000), as an advance on fifty thousand pounds of hams, now in process of curing in our porkhouse, for which he holds two notes twenty-six hundred dollars ($2,600) each.
    • “ Thorne, McMillan & Co.”
    S. M. Thorne,, after testifying that the sum of $8,000 was advanced to the firm by Elias Thorne, on December 22, 1873, at a bank in Wilmington, says: “We came out of the ban! and Elias Thorne and myself went directly to the porbhouse, and I delivered the hams to him.” [Witness was told to state what was said and done, and he proceeded as follows :] “ 1 pointed out the hams to him; they were on the first floor, and mostly in hogsheads, some in the front room, but most in the back room—100 hogsteads—something over 100,000 pounds; I pointed to the hams, and said to him, £ I make you a delivery of the hams ;’ I also said, ‘ I will mark them for youhe replied, £ That is all right;’ I marked some that afternoon and some more the next day, by marking on the hogsteads, in chalk, plainly, iE. Thorne. ’ When I said I would mark them, and he replied £ All right,’ he added that I could do so at some other time, as he was in a hurry. In the afternoon of that day I marked some of them by writing the name ‘ E. Thorne’ with chalk, and the next day I marked some more the same way, in all a half dozen or a dozen of the outside casks. The casks or hogsheads were all in the main part of the building. All the hams embraced or mentioned in the warehouse receipt were separate and apart from all other hams and meats in the house. A few days afterward, and while he was still here in Wilmington, we gave him another receipt to cover what we called the five-thousand-dollar loan; it was the receipt which has been offered in evidence, bearing date December 25th, 1873.”
    In February and March, 1874:, without the knowledge or consent of Elias Thorne, the hams were shipped by the firm to Pittsburgh, where they were sold, and the proceeds of the sale, $7,025,32, were applied by the firm in satisfaction of money due from the firm to the bank. This debt to the bank existed at the time the warehouse receipts were given. The suit was brought to recover the money so received by the bank.
    The firm was never engaged in the business of ware-housemen.
    The court charged the jury, among other things, that if it appeared that the papers called warehouse receipts were in fact given by the firm to Elias Thorne “ simply by way of security for a loan of money made by him to them, and not otherwise,” then that the bank, which was a creditor of the firm at the time, was not liable.

      L. Pope and J. S. Savage, for plaintiff in error:
    The instruments executed by Thorne, McMillan & Co. to Elias Thorne were warehouse receipts, and their legal effect was to pass the general property and right of possession to the holder. Gibson v. Chillicothe Bank, 11 Ohio St. 311; Second National Bank v. Walbridge, 19 Ohio St. 419; Shepardson v. Carey, 29 Wis. 34; Rice v. Cutler, 17 Wis. 362; Harris v. Bradley, 2 Dillon, 284; Hale v. Milwaukee Dock Co., 29 Wis. 482; Emery v. Irving National Bank, 25 Ohio St. 360; Gibson v. Stephens, 8 How. U. S. 384; Cool v. Phillips, 66 Ill. 216. Act in relation to chattel mortgages has no application. Shepardson v. Carey, Rice v. Cutler, supra. Legal effect of the instruments for the court. Whitaker v. Sumner, 20 Pick. 399; Miller v. Baker, Id. 285; Sawyer v. Fisher, 32 Maine, 28; 2 Hilliard on Mortgages, 348, 354; Wadsworth v. Alcott, 6 N. Y. 65 ; Macomber v. Parker, 13 Pick. 175. The bank is liable for money had and received. 2 Bouv. Inst. § 3432; 4 U. S. Dig. 460, § 2; Lewis v. Anderson, 20 Ohio St. 281; Sanders v. Keber, 28 Ohio St. 630. As to the general doctrine of equity, that one having money which in equity and good conscience belongs to another, should be compelled to refund it, see 2 Story’s Eq. §§ 1258, 1261, a, c, 1262; Hartford v. Lloyd, 20 Beav. 310; Ernest v. Croysdill, 6 Jur. N. S. 740; Rolf v. Gregory, 11 Jur. N. S. 98, 238; Moreland v. Lemaster, 4 Blackf. 383; 2 Ves. Jr. 437; Van Alen v. American National Bank, 52 N. Y. 1.

      Hoadly, Johnson & Colston, W. B. Telfair, and M. Hayes, for defendant in error-:
    The instmments called warehouse receipts are in legal contemplation chattel mortgages, and as such are invalid, because there was not a change of possession, nor a filing as required bj statute. 1 S. & C. 475 ; Robinson v. Fitch, 26 Ohio St. 659 ; Yenni v. McNamee, 45 N. Y. 614 ; Shepardson v. Green, 21 Wis. 539 ; Adams v. Merchants' Bank, 19 Am. L. Reg. N. S. 714, s. c., 5 Law Bulletin, 303. Counsel also commented on Gibson v. Chillicothe Bank, and other cases cited for plaintiff in error.
   Okey, J.

The verdict was right unless the charge was wrong. But the charge, as we shall see, Avas right. Clearly the hams were not held by Elias Thorne in pledge, for, to constitute a pledge, he must have received and retained possession of the property. Nor was this, as against the bank, a valid deposit by a bailor with a bailee, for the reason hereinafter stated. Nor, as to the bank, which does not claim under the instruments executed t.o Elias Thorne, Avere such instruments warehouse receipts, for the firm was not engaged in the business of warehousemen, and the property belonged exclusively to the firm.

There is nothing in the statutory provisions relating to warehouse receipts, in force in 1873 and 1874, which affects the question before us. 1 S. & C. 420-424; S. & S. 93, 94. In several states, however, and in England, the rights, duties and liabilities of persons with respect to such instruments, are regulated by statutes, and in construing those statutes, the eourts have considered the general subject. See Cochran v. Ripy, 13 Bush, 495 ; Sexton v. Graham, 53 Iowa, 181; Price v. Wisconsin, &c., Insurance Co., 43 Wis. 267; Sewing Machine Co. v. Heller, 44 Wis. 265 ; Insurance Co. v. Kiger, 103 U. S. 352; Harris v. Bradley, 2 Dillon, 284 ; McCabe v. McKinstry, 5 Dillon, 509; Yenni v. McNamee, 45 N. Y. 614; Adams v. Merchants’ National Bank, 19 Am. L. Reg. N. S. 714; Greenleaf v. Dows, 12 Reporter, 545; Johnson v. Roe, 10 Central L. Jour. 328. See, also, Edwards on Bail. (2 ed.) §§ 332, 333; 10 Central. L. Jour. 421; Daniel on Neg. Inst. §§ 1713, 1714; Benj. on Sales (2 Am. ed.), §§ 780, 781. The conclusion already stated, that the instruments in question are not warehouse receipts, was reached after a careful examination of these authorities.

The claim that, in so holding, the decision is inconsistent with Gibson v. Chillicothe Bank, 11 Ohio St. 311, is not well founded. In that case, as in this, the instruments claimed to be warehouse receipts were not such receipts, strictly speaking. But in that case it was claimed that Gibson, Stockwell & Co., to whom the receipts were given, were the owners of the property, and evidence was offered to show such ownership. The true ground of that decision appears in the statement of the judge delivering the opinion, that the papers called warehouse receipts were given, “not to secure an indebtedness merely, . . . but on the contrary, that the plaintiffs, under a previous and subsisting contract, furnished and advanced the money for the purchase of the property, upon an agreement on the part of Bartlett & May to so pass to them the title thereto.” The court below charged the jury that the receipts did not even tend to prove such ownership of Gibson, Stock-well & Co., and in so charging cleai’ly erred, and for that error the judgment was properly reversed. To that extent we fully recognize the case as authority. But in this case it is not pretended there was any agreement whereby Elias Thorne became owner of the property. Indeed, there was no proposition on the part of the firm to give, nor on the part of Elias Thorne to receive, a lien upon or interest in the property now claimed to have been embraced by the receipts, until all the property had been purchased by the firm, nor until such property had come to its possession, and, for aught that appears, payment therefor had been made.

The instruments not being as to third persons warehouse receipts, the question arises as to the interest Elias Thorne acquired in the property. We do not doubt that as to persons other than creditors of the firm, and subsequent purchasers and mortgagees in good faith, Elias Thorne acquired an interest in the hams. But the only interest he attempted to acquire was under those receipts, the acts called a delivery of the property having reference solely to perfecting his title under such instruments. The bank, however, was then a creditor of the firm. The statute in force at the time provided, “ that every mortgage or conveyance, intended to operate as a mortgage of goods and chattels hereafter made, which shall not bo accompanied by an immediate delivery, and followed by an actual and continued possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited as directed in the succeeding section of this act.” 1 S. & C. 475 ; Rev. Stats. § 4150. In this case the place of deposit would have been the office of the township clerk. 3 Sayler, 2219.

Here Was an attempt to create, by the instruments in question, a lien on the hams, to secure the debt of Elias Thorne. There was no change of possession, much less a continued change of possession. There was no execution of a chattel mortgage on the property, much less a filing of such mortgage with the township clerk. The attempt was, therefore, within the inhibitions, and in conflict with the policy of the above section, and the lien so attempted to be secured was, as to the bank, a creditor of the firm, simply a nullity.

Another view of this case may be taken, equally satisfactory to all of us, and leading to the same result. Whether the bank, at the time it received the proceeds of the sale of the hams in payment of its debt, had knowledge that Elias Thorne held the alleged warehouse receipts, is a question concerning which the evidence is in direct conflict. The verdict, in view of the charge to the jury, is virtually a finding that the bank did not have such notice. The finding of a jury can only be disturbed when it appears from the evidence to be clearly wrong (McGatrick v. Wason, 4 Ohio St. 566, 575), and that we cannot say is shown by the evidence in this case. Elias Thorne having permitted the firm to retain the possession and control of the property, the firm sold it and paid the proceeds of the sale to the bank, which was one of its creditors, and, we are bound to say, ignorant of the fact that Elias Thorne had. or. claimed any lien upon, or interest in the property. That a bailor has, ordinarily, a remedy against a person who has converted his property to his own use, is not denied. Roland v. Gundy, 5 Ohio, 202 ; Knapp v. Hobbs, 50 New Hamp. 476. But where a bailee, in violation of his trust, sells the property of the bailor, and applies the proceeds in payment of his (the bailee’s) debt to a third person, who was ignorant of the breach of trust, the bailor cannot maintain, against such third person, an action for money had and received. Kingsley v. Plimpton, 17 Pick. 159; Thatcher v. Pray, 113 Mass. 291; Culver v. Bigelow, 43 Vt. 249 ; Foster v. Green, 7 Hurl. & Nor. 881. In this view the verdict is right, even if the instruments relied on’should be regarded strictly as warehouse receipts.

Judgment affirmed.


author: Longworth, J.

text:
    Taylor v. Binford.
    C., being the owner of land, conveyed it, for a valuable consideration, to a township board of education, its successors and assigns for the use of school purposes only. Afterward the board, wishing to change the school-house site, sold the land at public outcry to T. C., having conveyed to B., entered—under his permission—as upon condition broken. In an action of trespass by T. against C.: Reid, that the entry of 0. was unlawful, the sale to T. not being in violation of the terms of the grant to the board of education by which the estate was expressly made assignable.
    Error to the Court of Common Pleas of Mahoning County-reserved in the District Court. The facts are sufficiently stated in the opinion of the court.

      Kennett & Ambler, for plaintiff in error.

      J. J. Parker, for defendant in error.
   Longworth, J.

The original action was brought by Jacob Taylor against Joshua Binford and Emmor Cobbs to recover damages for a trespass upon lands which the plaintiff claimed to own. Binford answered, traversing all the allegations of the petition. Cobbs admitted his entry upon the land, but justified under a permit from Binford, who was, he averred, at the time the owner of the land. The ownership of the land was the sole question at issue.

Upon the trial the court rendered judgment for the defendants.

The pleadings, together with the separate findings of fact and law by the court, constitute the record.

From this record it appears that in 1854, Cobbs, who waé then the owner of the land, conveyed it to the board of education of Smith township, by deed, as follows:

“ This indenture, made the fourth day of April, one thousand eight hundred and fifty-four, between Robert Cobbs and Mary Cobbs, his wife, of the county of Mahoning, in the State of Ohio, parties of the first part, and John Shseffer, Mordecai D. Tanneyliill, Stephen Miller, John Allerton, Enoch Shreeve, Nathan Ball, Jesse Stanley, J. W. Satterthwait, James Hoiles, and Seth Pennock, Chairman, and Samuel Cobbs, Clerk, as the township Board of Education of the township of Smith, county and State aforesaid, party of the second part, witnesseth :
“ That the said parties of the first part, in consideration of fifty dollars to them duly paid before the delivery hereof, have bargained and sold, and by these presents do grant and convey to the said party of the second part, its successors and assigns forever, the following lot of land, in range five, township eighteen, section thirty-six: beginning at the southwest corner of the northwest quarter of said section, and running north ten rods, thence east eight rods, thence south ten rods, thence west eight rods, to the place of beginning, with the appurtenances, and all the estate, title and interest of the said parties of tlie first part therein, for the use of school purposes onl/y; and the said parties of the first part doth hereby covenant and agree with, the said party of the second part, that at the time of the delivery hereof, the said parties of the first part were the lawful owners of the premises above granted, and seized thereof in fee simple absolute; and that they will warrant and defend the above granted premises in the quiet, peaceful possession of the said party of the second part, and its successors and assigns forever, for the above named purposes.
“In Witness whereof, the said parties of the first part have hereunto set their hands and seals, the day and year above written. Robert Cobbs [Seal.].
Mart Cobbs [Seal.].
“' Signed and delivered in the presence of)
Joseph L. Hanna and Joseph Cobbs.” j

The grantees took possession of the land and used it until the year 1874, as a school-house site. In the fall of that year the board determined to change the location of the school-house, and to sell the house and lot. In pursuance of this resolution, after proper advertisement, the premises were sold to Taylor for $200, he being the highest bidder. Taylor thereupon entered into possession under a written agreement for a deed, which was afterwards delivered to him in April, 1875.

In February, 1875, Cobbs conveyed to Binford, claiming that the title had reverted to him by reason of the breach of the condition that the premises should be used for “ school purposes only.”

On the one hand it is claimed that the limitation of the use is a condition of the grant the breach of which works a forfeiture of the estate, while on the other hand it is claimed that a grant declared to be for a special purpose without other words cannot be held to be upon condition, but at most creates only a trust. See Packard v. Ames, 16 Gray, 327; Ayer v. Emery, 14 Allen, 69; Sohier v. Trinity Church, 109 Mass. 1; Stanley v. Cobb, 5 Wallace, 119, 146, 164.

We will assume, without, however, so deciding, that the grant is upon condition, the breach of which would work a forfeiture. Has the condition been broken ? Surely not, by the sale to plaintiff. The estate conveyed was a fee, and of this estate the right to assign is an essential incident. Indeed, by the terms of the instrument the estate is expressly made assignable, the grant being to the board its. successors and assigns forever.” The mere fact of a sale, therefore, would be no breach of the condition, in the absence of a showing that the grantee diverted the land to other than school purposes only; and this fact nowhere appears.

Judgment reversed, j


author: McIlvaine, J. Okey, C. J.

text:
    Cincinnati, Sandusky and Cleveland Railroad Company v. Eliza Cook.
    1. The act of April 20,1874 (71 Ohio L. 146), giving a penalty of $150 to the party aggrieved by a railroad corporation for overcharging for the transportation of passengers or property, is not in contravention of the constitution.
    2. A petition under said act against a corporation, for demanding and receiving excessive fare in the sale of a passenger ticket to a person desirous of traveling on its road between the points named on the ticket, is not bad, on demurrer, for want of an averment that the purchaser of the ticket was, in fact, transported on the ticket for which excessive fare was exacted.
    3. A petition under said act is not bad for want of an averment that the excessive fare was paid by the plaintiff in the due course of business, although judgment was not rendered thereon until after said act was repealed by the act of March 30, 1875 (72 Ohio L. 143), saving only pending actions and causes of action under the repealed statute, where the excessive fare was paid in the due course of business and not for the purpose of obtaining the penalty.
    4. Several causes of action for penalties under said act may be united' in the same petition.
    5. Where such action stands for judgment on the petition, it is not error to refuse to impanel a jury to assess damages.
    Error to the District Court of Logan County.
    The original action was brought on August 15, 1874, in the court of common pleas of Logan county, by the defendant in error against the plaintiff in error, for overcharging passenger fare in violation of the act of April 20,1874 (71 Ohio Laws, 146).
    The petition contained two causes of action. The first count charged that the defendant, on June 10, 1874, had demanded and received from the plaintiff the sum of thirty-five cents for a passenger ticket on its railroad, from Beliefontaine to New Richland, a distance of nine and nine-tenth miles, over which portion of the defendant’s road the plaintiff desired to be transported. The second count charged that the defendant, on the same day, had collected from plaintiff, who was then a passenger on its cars, the sum of thirty-five cents for fare from New Richland to Bellefontaine, a distance of nine and nine-tenth miles. Prayer for judgment on each count, for $150. Defendant demurred to this petition on the ground, among others, that several causes of action were improperly joined, and to each count, that it did not state facts sufficient to constitute a cause of action. These demurrers were overruled, and the defendant, being in default for want of answer, demanded a jury for the assessment of damages, but the court refused to impanel a jury and rendered judgment in favor of the plaintiff for $300 and costs.
    This judgment was afterward affirmed by the district court.

      West, Walker & West, for plaintiff in error:
    The act under which this action was brought is unconstitutional, because:
    I. It would violate that clause of the constitution which declares that all criminal prosecutions shall be carried on in the name of the state of Ohio. It substitutes the individual citizen for the sovereignty of the state, by authorizing him to prosecute in his own name what the constitution declares shall be prosecuted in the name of the state, namely, “ Crimes against and in violation of a public statute.”
    II. It violates the 10th section of the Bill of Rights, which declares that no person shall be compelled, in any criminal case, „o be a witness against himself. The statutory forfeiture is nothjig more nor less than a penalty imposed for the commission <?>f a crime—the violation of a public law. Under the rule of the civil code, matter alleged in the petition is deemed and taken to be confessed by-failure to answer. The failure to an-, swer is thus virtually construed, in the case of an action for a criminal penalty, to be an admission or confession of guilt, which is in effect, compelling the citizen, indirectly, to be a witness against himself. Judgment is rendered against him, and the penalty of the law inflicted, because he fails or refuses to exculpate or purge himself by his own oath, which violates that great principle of liberty, that the citizen shall be presumed 'innocent until proven guilty.
    III. It violates that other provision in section 10 of the Bill of Rights, which declares that no person shall be found guilty of crime, or adjudged to suffer the penalties of violated public law, except by the verdict of an impartial jury. As the rule of civil practice, above stated, renders a failure to answer a confession of the facts alleged, such failure to answer supersedes the finding of facts by a jury, and conviction results without impartial or any trial. As the amount of the penalty is arbitrarily prescribed by the legislature, the judgment of the jury is not invoked to measure it. Thus, conviction for the violation of public law is wrought, the citizen found guilty in effect, and the severest pecuniary penalties inflicted upon him, without the intervention of a jury, or the presence of a single witness testifying against him, face to face, or otherwise.
    These conclusions are thus reached: If the forfeiture of the statute be deemed compensatory, it violates the great civil right of trial by jury; and right of the citizen to have the compensation for injuries done measured by the judgment of that tribunal. For if it be competent for the legislature to prescribe the minimum of compensation in any case, it may in all cases, and, and as in the present instance, may fix such minimum, greatly in excess of any probable or even possible injury, thus reducing the right of jury trial to a mockery.
    If the forfeiture of the statute be deemed punitive, it violates the constitutional guarantees of liberty in the several respects above stated, by making the punishment of crime against the sovereignty of public law, an instrument in the hands of private malice, fraud and conspiracy, to be secured without jury or witnesses, through the virtual, involuntary confession of the accused.

      E. J. Howenstine, for defendant in error:
    I. Has a private person a right under the Constitution to sue for and recover in his own name the penalty from a railroad company for a violation of the act of April 20, 1874? 71 Ohio L. 146 ; 4 Sayler’s Stats. 3328.
    The language of the statute is, “ And every such corporation . . . who shall violate or permit to be violated; the provisions of this act, or any other corporation . . who shall demand or receive a greater sum of money for transportation . . than the sum allowed by law shall pay to the party aggrieved for every such overcharge; but in no case shall the amount to be paid, be less than one hundred and fifty dollars.” This by express terms gives the penalty or forfeiture to the party aggrieved. In such case the party aggrieved may bring the action in his or her own name. See 1 Chitty Pl. (8 Am. ed.) 112, 371, 372; Swan’s Treatise (10 ed.), 896; Hilton v. Morse, 2 Western S. M. 316. The plaintiff below was the real party in interest. She was the party aggrieved, and to whom the penalty by provision of statute is to be paid. Being the real party in interest, the action must be prosecuted in her name. Code Civ. Pro. § 25.
    The common law, the code, and the doctrine and decisions in Ohio, so far as we have any, all sustain the action as brought, and the constitution does not prohibit. This is not prosecution in the sense in which that term is used in article 4, section 20, of the constitution. That provision relates only to criminal actions and actions for the benefit of the state, or of some public fund; to actions in which the state is the proper party under section 25 of Code of Civil Procedure.
    II. The court of common pleas did not err in refusing to send said cause to a jury for the assessment of damages. 1. The defendant below filed answer, admitted all the facts set out in the petition (not in haec verba, but by implication of law), and set up new matter as a plea in bar. The court held that the new matter was no bar, and the defendant declined to further answer. There was no issue of fact then to go to a jury under section 263 of the code. There was no “ taking of an account, or proof of a fact or assessment of damages necessary to enable the court to pronounce judgment upon a failure to answer,” under section 376 of the Code. All the facts alleged, and penalty set forth, were directly admitted by the plea in bar. "When a defendant (not failing to answer), but directly by the plea in bar, admits the liability charged in the petition, he is not entitled to demand a jury trial under section 698 of the Code, when his plea in bar is adjudged insufficient, and he declines to further plead. This would be a vain work of supererogation. 2. But this is not an action to recover damages.. It is an action to recover a specific penalty defined by statute. If the defendant admits the facts which make him liable to pay the penalty, then no jury can intervene. The law fixes the amount of judgment and all the court can do is to enter the judgment on record. A jury cannot assess damages.
   McIlvaine, J.

The statute of April 20, 1874 (71 Ohio L. 146), after enacting among other things, that a corporation operating a railroad in whole or in part in- this State, may demand and receive for the transportion of passengers on. said road, not exceeding three cents per mile for a distance - of more than eight miles ; provided the fare shall always be made that multiple of five nearest reached by multiplying the rate by the distance,” further provides that Every such corporation, its officers, employes or agents, who shall violate, or permit to be violated, the provisions of this act, or any other corporation, its officers, employes, or agents, who shall demand or receive a 'greater sum of money for the transportation of passengers, or property, on or over their railroad than the sum allowed by law, shall pay to the party aggrieved for every such overcharge, a sum equal to double the amount of such overcharge ; but in no case shall the amount to be paid be less than one hundred and fifty dollars.”

The first question raised on the demurrer, and chiefly urged in the argument of the case, relates to the constitutionality of the statute upon which the action is based. Numerous objections to the validity of the statute are urged. It is contended, that if the right of action given to the party aggrieved is for compensation for an injury, the province of a jury is invaded by fixing the minimum recovery at $150. We need not stop to consider the soundness of this proposition, as it is conceded by counsel for plaintiff in error, in which concession we entirely concur, that the minimum sum to be paid for overcharging fare, where the actual damage of the party aggrieved is less than one hundred and fifty dollars, is in the nature of a penalty—is punishment rather than compensation.

In this view of the statute, however, it is contended, that a violation of its provisions is an offense against a public law, and prosecutions therefor must be carried on “ in the name and by the authority of the State of Ohio.” Sec. 20, Art. 4, Constitution.

And further, that if for a violation of the statute the guilty party can be prosecuted in a civil action, the rule of the code of civil procedure, which declares that allegations in a petition not denied by answer, shall be taken as true, violates the principle guaranteed by the constitution, section 10, article 1, that no person in any criminal case shall be compelled to be a witness against himself. The summing up of the argument by counsel, I quote:

“ These conclusions are thus reached: If the forfeiture of the statute be deemed compensatory, it violates the great civil right of trial by jury; and right of the citizen to have the compensation for injuries done measured by the judgment of that tribunal. For if it be competent for the legislature to prescribe the minimum of compensation in any case, it may in all cases, and as in the present instance, may fix such minimum greatly in excess of any probable or even possible injury, thus' reducing the right of jury trial to a mockery.
“If the forfeiture of the statute be deemed punitive, it violates the constitutional guarantees of liberty in the several respects above stated, by making the punishment of crime against the sovereignty of public law, an instrument in the hands of private malice, fraud and conspiracy, to be secured without jury or witnesses) through the virtual, involuntary confession of the accused.”

The principles of the constitution, above referred to, are wholly misapplied by counsel in argument. These provisions were not intended to inhibit private actions for damages resulting from the violation of a public statute, nor for a penalty where the right of action therefor is given to the party aggrieved, nor even prosecutions in the nature of qui tarn actions. Ail prosecutions for the violation of criminal laws, on behalf of the State, or general public, must be in the name of the State and by its authority, and in such prosecutions the person charged cannot be compelled to be a witness against himself ; but where a right of private action is given by statute for a penalty, a civil action, in the name of the party, under the civil code, with all its incidents, is the proper remedy unless otherwise provided specially.

Before the trial in the court below, the act of 1874 was repealed by the act of March 30, 1875 (72 Ohio L. 143), as follows : “ Sec. 2, that the said Act of April 20,1874, be, and the same is hereby repealed, and the repeal of said act shall affect and annul penalties accruing or accrued under said act or the act of April 25, 1873, repealed thereby; provided, that no railroad company or corporation shall bo released from its liability in actions now pending and causes of action heretofore accrued to any person from whom such railroad company or corporation by its officers or agents shall have demanded and received fare or freight at a rate above that allowed by law; provided, such person paid out overcharges while using such railroad in the due course of his or her business and not for the purpose or with the view of obtaining the penalty provided by law for such overcharge, &c. Wherefore, it is claimed, that the petition was not sufficient to support the judgment, for the reason that it did not show that the plaintiff was within the saving clause.

Whether an action could have been maintained under the act of 1874, where the overcharge was not paid in the due course of business, but was paid for the purpose of obtaining the penalty, to say the least, is doubtful; but it is clear, that since its repeal in 1875, a cause of action arising under it was lost by the repeal unless the party was within the terms of the saving clause; yet if an action was pending at the time of the repeal and the petition stated a causé of action under the statute, its subsequent repeal, the case being in fact within the saving clause, did not render the petition insufficient. And we think the petition was sufficient under the act of 1874. If the plaintiff’s case was obnoxious to the charge of bad faith, the petition, however, stating a cause of action in the terms of the statute, the bad faith was, under the act of 1874, a matter of defense—assuming that the payment of the excessive fare not in the due course of business, but for the purpose of obtaining the penalty would have defeated the action. In the case before us, the testimony not being in the record, we must assume that it was shown that the plaintiff was within the saving clause of the repealing statute.

It is also claimed, that the first count in the petition is bad for want of an averment that the plaintiff was a passenger on the defendant’s cars from Beliefontaino to New Richland, or that the ticket purchased was in fact used by a passenger. This objection is answered by the principle above stated. The allegation of the petition is as broad as the terms of the statute, namely: that the defendant demanded and received excessive fare from the plaintiff for the transportation of a passenger. If the passenger was not transported, or in other words, if the payment of the fare was not in the due course of business, but was made for the purpose of obtaining the penalty, the plaintiff, under the act of 1874, was not bound to aver to the contrary, until such fact was set up by way of defense.

A question of some difficulty is raised as to the joinder of causes of action. Our statute provides for the joinder of actions as follows : “The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, when they are included in either one of the following classes; 3. Injuries, with or without force, to person or' property, or either.” Section 80 of the Code of 1853. The joinder in this case, if justified at all, is under this clause.

There is no doubt that this section should be construed liberally for the purpose of preventing multiplicity of actions ; and we are inclined under this rule of construction to hold, tliat the causes of action in tlie petition are for injuries to property; and if this be so, the joinder was proper. The wrongful taking of another’s property is an injury to the property. "Wrongfully demanding and receiving the plaintiff’s money for fare in excess of the amount authorized by law, was an injury to her in her property. Although it was paid without protest, the company acquired no right to retain it. It being unlawful to demand or receive it, the railroad company unlawfully exacted and converted it; and for this wrong and injury, the statute gave the plaintiff a right of action ; and our best judgment is, that several causes of action for such injuries may be united in the same petition.

There was no error in the court refusing a demand- by the defendant for a jury to assess damages. There was no issue of fact for a jury to try. The statute, upon the facts admitted by the pleadings, fixed the amount of the recovery. If an issue had been joined, for the trial of which either party might, of right, have demanded a jury, upon the finding of the jury upon the issue for the plaintiff below, the amount of their verdicl would have been controlled by the statute.

Judgment affirmed.

Okey, C. J.

In my opinion the judgment should be re versed in part and affirmed in part. The second cause of action is sufficiently stated, and the judgment as to that should be affirmed. The first cause of action is as follows: On the 10th day of June, 187J, the plaintiff was at Bellefontaine, in Logan county, and desired to go from there to the town of New Richland, in said county, the distance of nine and nine-tenths miles. At the office of said company, in Bellefontaine, the plaintiff purchased from the defendant’s agent a ticket from Bellefontaine to New Richland, which ticket represented that the plaintiff had paid her fare or toll from Bellefontaine to New Richland, and was entitled to ride on defendant’s cars on said road (of the defendant) from Bellefontaine to New Richland. For said ticket and fare as aforesaid, defendant, by its agent, charged, demanded and received of the plaintiff the sum and price of thirty-five cents, and the plaintiff paid said sum of thirty-five cents for said ticket and fare, which was more than defendant was entitled by law to charge and receive for riding on said railroad said distance of nine and nine-tenths miles; whereby an action has accrued to the plaintiff for the same, and the plaintiff is entitled to have and receive from the defendant, by reason of the premises, the sum of one hundred and fifty dollars.”

The statement of this cause of action is not aided by any other matter in the record. I deny that such statement is as broad as the statute. It is not stated in terms, nor even in substance, that the plaintiff below was transported to New Rich-land. The statute, quoted in the opinion of the court, limited the sum which the company might “ demand and receive, for the transportation of passengers on said road,” to a sum “ not exceeding three cents per mile,” and made highly penal a violation of its provisions. Indeed, for receiving Jime cents—the amount alleged in this cause of action—in excess of the prescribed fare, the penalty must be at least one hundred and fifty dollars; and knowledge, on the part of the agent, that the sum is in excess of the lawful fare, is not made by the statute a material element in maintaining the action. Such a statute, according to well settled principles, must be construed strictly. So construed, the first cause of action, above set forth, is insufficient, in failing to state that the defendant in error was transported on the road. The inhibition is not against the sale of tickets to a purchaser thereof, but receiving an unlawful rate of fare “ for the transportation of passengers on said road.” According to the construction of the majority, a right of action accrued to the defendant in error the moment she bought, tb7ticket of an agent, and there was not left to the company even a locus penitentice. But in my opinion no penalty is incurred under the statute, unless, for the act of transportation actually performed by the company, a sum in excess of that prescribed n the statute has been exacted. Nothing of the sort is stated in the first cause of action, and hence it is insufficient. If one from whom illegal fare is exacted is not actually carried, he may recover the money so paid, but not the penalty prescribed in the statute. White v. Franklin Bank, 22 Pick. 181. The section, of course, is susceptible of the meaning ascribed to it by the majority of the court; but where a statute highly penal in its provisions, admits of two probable but conflicting constructions, that is to be preferred which is most favorable to him against whom the penalty is asserted.


text:
    The State ex rel. v. The Trustees of the Ohio Soldiers’ and Sailors’ Orphans’ Home.
    1. A statute declaratory of a former one has the same effect upon such former act, in the absence of intervening rights, as if the declaratory act had been embodied in the original act at the time of its passage.
    2. The legislative approval in the act of April 19, 1881 (78 Ohio L. 309), of the construction given by the defendants to the act of April 13, 1880 (77 Ohio L. 187), requires the $10,000 appropriated by the last named act, to be distributed according to such construction, where no contracts had been previously entered into by the defendants for a different distribution of the fund.
    Mandamus.

      M. P. Nolan, for plaintiff.

      C. H. Grosvenor, for defendant.
   White, J.

This proceeding was instituted on the relation of the trustees of the Montgomery County Children’s Home against the defendants, the trustees of the Ohio Soldiers’ and Sailors’ Orphans’ Home, to compel them to contract with the relators under the act of May 13, 1880 (77 Ohio L. 187), for the support of certain orphans and destitute children of Ohio soldiers and sailors. The alternative writ was issued October 18,1881. The case was submitted on an agreed statement of facts, in writing. From this statement it appears that the relators presented forty-seven such children in their charge, to the defendants, for admission to the Ohio Soldiers’ and Sailors’ Orphans’ Home, in accordance with the rules and regulations established by the defendants for the admission of children to such home, and asked the defendants to direct the superintendent of said home to contract, at a per capita, with the relators, for the support of said children, and to pay the relators therefor out of the $10,000 appropriated by the second section of said act. That the defendants admitted that said children thus presented were proper persons to be received into the home under their charge, if there was room therein. That the defendants would not contract for the support of said children, for the year ending February 15, 1881, for want of l’oom in the institution. The time of presenting these children for admission is said, in the agreed statement, to have been at a meeting of the defendants held “on the day of ,1881.” It appears that during the year 1880, and thus far in 1881, Montgomery county has had three mox’e orphan children in the last named Home than her quota, under section 677 of the Revised Statutes.

The eleventh annual report of the defendants, as trastees for the year 1880, was also given in evidence. The following extract shows their action under and construction of the act of April 13, 1880, above referred to:

“ support op orphans outside the home.”
“ Preliminary steps have been taken to carry into operation the provisions of the act of April 13, 1880 (Laws, p. 187), but no contracts have as yet been made in that behalf. The statute is obscure, and the board . have been in a state of uncertainty as to their powers and duties under it. It reads as follows: omitting formal parts and the second section, which appriates $10,000 for the purposes of the act:”
“ That the Trustees of the Soldiers’and Sailors’ Orphans’ Home, and under their direction the Superintendent, is hereby authorized and directed to contract at a per capita not to exceed the current expense cost of keeping the children at the Xenia Home, with the proper officers of the different children’s asylums or homes in the state, for the support of such children as have been or may hereafter be transferred to said homes, who are children of soldiers or sailors who served in the late war from the State of Ohio.”
‘ ‘A number of questions have arisen in our minds in considering the act, difficult of settlement. Who are to receive the benefit of its provisions? Are there other restrictions upon those who may, than that they are to be ‘ children of soldiers or sailors who served in the late war from Ohio?’ or must they fall within some of the classes who may be admitted to the Home? Who shall make the ‘transfers’ contemplated? Whence shall they be made and how? Are children first to be admitted to the Home, or their applications for admission accepted before they can be ‘ transferred,’ or is it intended to ‘ transfer ’ those not inmates or applicants to become such? Are the board to have any supervision over them when ‘ transferred?’ What if those ‘ transferred ’ are not properly cared for? Are the benefits of the act to be apportioned among the counties of the State as contemplated by section 677 of the revised statutes? These are some of the questions that have arisen, the consideration of which has caused delay in taking action under the law.
“ On full reflection and consultation with the attorney-general (who is in accord with the view taken as to its construction), we have concluded to treat the act as in pari materia with the general law governing the Home, and as a provision for the support and care of such classes of children named in section 676, Revised Statutes, as it, for want of room, cannot accommodate. All the counties of the state, as far as possible, are to have their proportional benefits of the law. We suppose the trustees of the Home are to make the ‘ transfers.’ They cannot make transfers of children not under their authority. Such authority can be obtained only by acceptance into the Home, or, at least, by the acceptance and approval of applications for admission. But the board can only admit children agreeably to said section 677, which provides that ‘ every county shall be entitled to its proportion, according to population, of the whole number that the Home will accommodate.’ Any other construction in this particular would work unequally and unfairly. The counties wherein these homes or asylums are situated might be enabled to support their orphans from the state treasury, thus compelling other counties having no such homes to contribute to such support, and to maintain their own indigent orphans in addition. Such could not have been the intention of the legislature. To effect such a result the terms of the statute should be explicit and imperative.
“ While the act i emains as it is, then it will be our purpose so to admin- - ister it in connection with the general law referred to, as that no county shall have more then its due share of their benefits. And we think the board should so far retain supervision over the children ‘transferred’as to see that they arc properly cared for and supported. Provision for this should be made in the contracts for support.
“We have stated our views and purposes thus fully upon this very important, but obscure, statute, in order that legislative correction may be made, if wrong.”

Tbe appropriation act, which was passed and took effect April 19, 1881, contains the following clause:

“Eor the care and support of orphans outside the home, under the act of April 13, 1880 (77 O. L. 187), and in accordance with the interpretation thereof, as set forth in the recent report of the trustees of said home, the sum of ten thousand dollars ($10,000); provided, the appropriation of ten thousand dollars ($10,000) made in said act, or so much thereof as remains unexpended, may be used likewise in substantial accordance! with the spirit of said act, as thus interpreted, in payment for the support of orphans thereunder in the year ending February 15, 1881.”

On April 20, 1881 (78 O. L. 201) another act was passed on the subject. The first section is as follows:

“ That the trustees of the soldiers’ and sailors’ orphans’ home are hereby authorized to contract, at a per capita not to exceed the current expense cost of supporting the children at the Xenia home, with the proper officers of any of the children’s homes authorized by the laws of Ohio in the state, for the support of such children as are by existing law entitled to admission to the Xenia home, provided, that the total expenditure under this statute shall not exceed the sum of ten thousand dollars for any one year, from February 15th to February 15th of the succeeding year.”

The following is the third section:

That the act entitled an act to provide for the support of the soldiers’ and sailors’ orphans outside of the soldiers’ and sailors’ orphans’ home in Xenia,’ passed April 13,1880 (77 O. L. 187), be and the same is hereby repealed; provided that nothing in this section shall operate to impair any rights to the appropriations made in said repealed act which have accrued heretofore; and this act shall take effect and be in force from and after its passage.”

The question for decision is, whether the relators are entitled to a peremptory, writ.

In the determination of this question the first inquiry is as to the effect of. the clause above quoted of the appropriation act, upon the act of April 13,1880.

Whatever may have been the original meaning of the act, the effect of the adoption of this clause was to incorporate it into the original act; and, in the absence of any intervening rights, to give to the act the same meaning and effect as if the clause had been embodied in it at the time of its passage.

The $10,000 appropriated by the act of April 13, 1880, was a charitable provision made by the legislature for the objects named in the act. The provision was to be carried into effect by the defendants. The means prescribed for the distribution of the fund, were through contracts to be made by the defendants, or under their direction, “with the proper officers of the different children’s asylums or homes in the state.” No such contracts having been made, it was competent for the general assembly to repeal the provision, or to construe it according to its discretion; and, as already stated, such construction was given to the act by the clause in the appropriation act above quoted.

The proviso in section 3 of the act of April 20, 1881, does not affect the case. The saving in the proviso of rights which had accrued under the act of April 13, 1880, embraced the legislative construction of the act as declared in the clause approving the construction given to it by the defendants in their report, no contracts having been previously entered into by the defendants for a different distribution of the fund.

Peremptory writ refused.


text:
    Frederick Bacon v. Titus Daniels.
    1. Where a contract, not required by the statute of frauds to be in writing, has been reduced to writing and signed by one contracting party only,’ it is error to treat such contract as of no validity for the reason that it is not signed by the party to be charged.
    2. An agreement between the parties to a contract and a third person, whereby one party is released from the obligations of the contract, and' the third person substituted in his stead, is a novation, and' requires no further consideration than such release and substitution.

      Error to the District Court of Erie County.
    The action was originally brought by the defendant in error, against the plaintiff in error Bacon, S. N. Hazen, ¥m. A. Braman, Edward F. Webster, Chas. W. Horr and Sidney S. Warner. Of these, Bacon and Hazen were the only defendants served with summons.
    The plaintiff alleged in his petition, that in March, 1875, the defendants entered into a contract with him, by which they agreed to purchase all the milk which plaintiff should deliver from his farm during the season of 1875, at one cent per pound. That in pursuance of said agreement, he had delivered to defendants, prior to September, 1875, 56,715 lbs. of milk, foi which he had received on account, $239.19, and that defendants then refused to receive any more milk, and to be further bound by their contract. He asked to recover the balance due under the contract.
    The defendant Bacon answered, denying that he ever made the alleged contract with plaintiff, or any other contract for the purchase of milk. Hazen was in default for answer.
    At the trial, evidence was introduced tending to. show that in the latter part of March, 1875, Bacon and Hazen came to plaintiff, and proposed to purchase his milk on the terms stated in his petition, and that shortly thereafter, plaintiff called on Hazen and notified him of his acceptance of the proposition. It was further proved, and not disputed, that prior to the middle of May, Hazen told plaintiff that Bacon had sold out all his interest in this and other contracts to defendants Braman, Horr and Warner, and that plaintiff, at the request of Hazen, then signed a written contract, thereby agreeing to deliver all his milk during the season of 1875, to Hazen, Braman, Horr <& Warner, and delivered the paper to Hazen. It was not pretended by any one that Bacon was a party named in this agreement.
    The defendant Bacon asked the court to charge the jury, that if they found that such a contract was made between plaintiff and Hazen, Braman, Horr and Warner, their verdict must be for the defendant. This the court refused to do, for the reason, among other things, that the contract in evidence was signed by one party only; and did' charge the jury that if Bacon did make the original agreement, it could not be rescinded without a consideration.
    The jury thereupon found for the plaintiff.
    A motion for a new trial was overruled, and judgment was rendered upon the verdict.
    This judgment was afterwards affirmed in the district court.

      H. & L. H. Goodwin, for plaintiff in error.

      Taylor & Phinney, for defendants in error.
   Longworth, J.

It might, perhaps, be enough to say of this case, that a recovery has been had for breach of a different contract from that sued upon. It is a well established principle, however, that where parties choose to try their case upon a supposed issue not in reality raised by the pleadings, and the case is fairly tried, submitted and decided upon such supposed issue, it is too late to urge in a court of error that the issue tried was not made by the pleadings. See Larimore v. Well’s Adm'r, 29 Ohio St. 13, 17.

If we treat the issue to have been as announced by the court below, we can see no valid reason for refusing to charge as requested by the defendant. The substituted contract was not one of that class which must by law be in writing, and the fact that the paper given to Hazen was signed by one party only, or not signed by all, would in no way affect the validity of the contract. That such an agreement was made is undisputed ; that Hazen was authorized -to contract for Braman, Horr and Warner does not appear from the evidence, but is alleged by plaintiff in his petition, which declares upon the contract to which Braman, Horr and Warner were parties. It cannot be presumed in his favor that his own allegations are untrue.

■ Like’ other contracts, the one in question requires a consideration to support its validity, but that consideration appears in the release of one party and the substitution of another. The existence of-the contract being established the consideration is self evident. As a statement of an abstract proposition the charge of the court was correct, but as applied to the case its effect was to instruct the jury that the substitution of the latter for the former contract was of no validity unless accompanied by a consideration outside of the release and substitution itself.

It is contended, that the exceptions to the refusal to give the charges asked, and to the charge as given, being general, this court cannot examine the errors complained of. We regard this proposition as untenable. The whole case is before us, and it is apparent that the jury were misled by erroneous instructions. See Baker v. Pendigrast, 32 Ohio St., 495.

Judgment reversed