author: Nash, J. Granger, C. J.,

text:
    Smith Bridge Co. v. Bowman.
    1. A railroad bridge is subject to tbe mechanic's lien, provided for by section 1, of the act of May 4, 1877 (74 Ohio Laws, 168).
    2. The contract with a railroad company bound the contractor to erect, build and complete, furnishing ail materials, the bridges remaining to be built upon the line of its road between two points specified therein and situated in the same county. The times for payment were fixed to commence from the completion of each bridge — Held:
    For the purpose of obtaining a lien and of filing the affidavit mentioned in section 2'of the act of May 4,1877 (74 Ohio Laws, 168), such contract is an entirety.
    The Springfield, Jackson & Pomeroy Railroad Company was incorporated in 1874 for the purpose of constructing and operating a railroad from the city' of Springfield to the city of Ironton, Ohio. On the 5th day of February, 1878, this railroad company made a mortgage to Samuel A. Bowman, as trustee, to secure a series of bonds, amounting in the aggregate to nine hundred thousand dollars. This became the first mortgage lien upon the property of the railroad companjr. It was left for record with the recorders of the counties, through which the company’s proposed line of railroad ran, between the date of its execution and the 13th day of April, 1878, and was recorded in each county.
    On the 31st day of January, 1879, Samuel A. Bowman, trustee, brought an action in the court of common pleas of Clark county, to foreclose the mortgage and sell the mortgaged estate and for other relief.
    On the 28th of March, 1879, the Smith Bridge Company, having been made a party defendant, filed its answer and cross-petition, which contained two counts. On the 7th of September, 1880, in the district court, the bridge company filed an amended second defense to its answer and cross-petition. ■
    In its first defense, the Bridge Company claimed that on the 11th day of January, 1878, it entered into a written contract with the Springfield, Jackson & Pomeroy railroad company, whereby it agreed to construct certain bridges on the line of the railroad; that it performed its part of the contract, and asked judgment for the amount claimed to be due and unpaid thereunder.
    In its second defense the Bridge Company claimed that by reason of the contract, the work done thereunder, and the steps taken under the mechanic’s lien law, in filing an account, etc., it was entitled to and obtained a lien upon the bridges so constructed, the several parcels of land on which they were erected and on the railroad, including all the estate, interest in land, tenements and hereditaments of the S. J. & P. railroad company, therein.
    The contract of the bridge company is as follows:
    Articles of agreement by and between the Springfield, Jackson & Pomeroy railroad company and the Smith bridge company of Toledo, Ohio, this 11th day of January, 1878.

      The Smith Bridge company agree and bind themselves to erect, build and complete, furnishing all materials, the remaining bridges to be built on the line of the S. J. & P. R. R., from Greenfield, Ohio, to the lower crossing of Paint creek in Ross county, Ohio, at the scale of prices hereto attached, dated Dec. 22nd, 1877, in accordance with strain sheets and specifications already furnished the chief engineer of the said railroad company, and of the same general character as the bridge now in course of construction by the said bridge company for said railroad company, between Greenfield and Washington C. H., as to the strength and material, substantially, on the Howe Truss plan.
    Said bridges to be of such length of span, of wood or combination of wood and iron, as the railroad company may hereafter elect, and to be completed as rapidly as the railroad company may reach the various crossings of the streams with their iron, in the laying of the track.
    The railroad company agrees and binds itself to pay the Smith Bridge Co. for the bridges so erected and completed, one-fourth (-J) cash, one-fourth (|) in three months, one-fourth (-|-) in six months, and one-fourth (£) in nine months, with interest on deferred payments at 8 per cent. Settlement to be made upon the completion and acceptance of each and every bridge.
    The railroad company further agree to transport on their line of road from Springfield or Washington C. H., as the Smith Bridge Co. may elect, all the materials for said bridges, free of charge, to a point within three miles of each bridge site, except at the crossing of Paint creek near Bainbridge, when the distance to one bridge site may be farther.
    The said railroad company further agrees that in case the Smith Bridge Co. elect to ship their materials via the Dayton & S. E. R. R. from Dayton to Washington C. H., cars of said railroad company shall be furnished free of charge for mileage, the Bridge Co. paying freight charges to Washington C. H.
    It is mutually agreed and understood that this is only a preliminary contract, and that a more full and complete contract with specifications hereafter to be drawn by the chief engineer of the S. J. & P. R. R. Co., to be signed by the proper officers or agents of the parties hereto, in duplicate, one copy to be retained by each party, embracing the provisions of this agreement and the plans heretofore furnished by the chief engineer of this company to the Smith Bridge Company, and by the Smith Bridge Company to the feaid chief engineer.
    Springfield, Jackson & Pomeroy R. R. Co.,
    By H. S. Chapman, Vice Prest.
    Smith Bridge Company,
    Per R. W. Smith, Prest.
    This agreement made the eleventh day of January, 1878, by and between the Springfield, Jackson & Pomeroy railroad company, and the Smith Bridge Company, of Toledo, Ohio.
    The said Smith Bridge Company hereby agrees and binds themselves to build and complete the remaining bridges on the line of road being built by said railroad company, from and including the crossing of Paint creek, at Greenfield, to- and including the crossing of Paint creek, at Robert Dill’s, about 3J miles below Bainbridge.
    The price hereinafter named includes the furnishing of all the material necessary to complete the said bridges, also the framing, raising and scaffolding.
    The bridges to be built in accordance with the directions, and to the satisfaction and acceptance of the chief engineer of said railroad company, and generally in accordance with the specifications and strain sheets furnished by said Smith Bridge Company.
    They shall be of wood, or combination of wood and iron, of the Howe Truss plan, of such clear span, angle and construction in approach to the abutments as may be directed by the said railroad company or their engineer. All the timber in the bridges to be of the best quality of white pine, (except ties and guard rail, which may be of oak,) free from shakes, knots or any imperfections that may tend to impair tbe strength and durability of the different bridges. The timber and iron to be subject to the inspection of the engineer of said railroad company, upon. its delivery upon the line of the said road, and if in his opinion it is not in accordance with this agreement, he shall not allow it to be used in the construction of the bridges. They are to be 12 feet wide in the clear, angle blocks, tubes, &c., to be of the best quality of cast iron, cross ties 8 feet long, 5x6, and placed 18 inches from centre to centre, guard rail 4x6, firmly bolted to the ties; all framing to he done in the most thorough and workmanlike manner. The said bridges to be completed before the said railroad companj’- reaches the various crossings with the track laying. The measurement to be from end to end of chord.
    The railroad company agrees and binds itself to pay the Smith Bridge Company for the different bridges upon completion, as follows:
    For 200 ft. spans, wood, $21.90 per lineal foot.
    For 200 ft. spans, combination, $24.90 per lineal foot.
    tFor 150 ft. spans, wood, $18.25 per lineal foot.
    For 150 ft. spans, combination, $21.25 per lineal foot.
    For 125 ft. spans, wood, $15.90 per lineal foot.
    For 125 ft. spans, combination, $18.60 per lineal foot.
    For 100 ft. spans, wood.
    Payable, one-fourth in cash upon the completion and acceptance of the different bridges, one-fourth (J) in three (3) months, one-fourth in six (6) months, and one-fourth in nine months, with interest at4 8 per cent, on deferred payments.
    The top cord of combination to have iron cover.
    The railroad company further agrees to transport on their line of road from Springfield or Washington C. H., as the Smith Bridge Company may elect, all the materials for said bridges, free of charge, to a point within three miles of each bridge site, except at the crossing of Paint creek, near Bainbridge when the distance to one bridge site may be farther.

      The said railroad company further agrees that in case the said bridge company elect to ship their materials via. the Dayton & S. E. R. R., from Dayton to Washington C. H., cars of said railroad company shall be used free of charge for mileage, the bridge company paying freight charges to Washington C. H.
    In witness whereof, the said Springfield, Jackson & Pomeroy railroad company, and the said Smith bridge company, do, by their respective presidents, cause this agreement to be signed and their official seals to be attached, this 1st day of May, A. D. 1878.
    Smith Bridge Company,
    Per R. W. Smith, Pres’t.
    [seal] Springfield, Jackson & Pomeroy R. R. Co.
    S. J. & P. R. Co. By W. N. Whiteley, Pres.
    The bridge company, after the completion of its work on the bridges, which were situated in Ross county, and within four months from that time, and on the 16th day of November, 1878, filed with the Recorder of Ross county an affidavit containing an itemized account of the amount and value of the work done and material furnished in and about the construction of the bridges, with all credits and offsets, together with a copy of the written contract and a description of the lands on which the bridges stood, all of which were duly recorded. The work was done and the material furnished, as claimed in the answer and cross petition of the bridge company, between the dates, January 29th and July 24th, 1878. The following is a copy of the account:
    Springfield, Jackson & Pomeroy railroad company, in account with Smith Bridge Company, debtor:
    1878.
    Jan. 29, to July 24, To construction of one combination bridge, single span 157 feet in length, crossing Paint creek, at Greenfield, Ohio, . $3427.04
    Jan. 29, to July 24, To construction of one wooden bridge, single span 132 feet in length, crossing Buckskin creek, in Ross county, 2105.40

      Jan. 29, to July 24, To construction of one wooden bridge, single span 158 feet in length, crossing Buckskin creek, Ross county, .... 2883.50
    Jan. 29, to July 24, To construction of one wooden bridge of two spans of 130-|- feet each in length, crossing Paint creek, in Ross county, . . 4211.84
    Jan. 29, to July 24, To constructing one wooden bridge of two spans of 139 feet each in length, crossing Paint creek, Ross county, . . . 4727.30
    Jan. 29, to July 24, To constructing one wooden bridge of two spans of 130|- feet each in length, crossing Paint creek, Ross county, . . . 4211.84
    1878. CREDITS.
    May 2, by cash, ....... $ 825.00
    May 15, by cash,..... 500.00
    May 27, by cash,...... 500.00
    May 30, by cash,...... 15.00
    June 4, by cash,...... 520.41
    June 22, by cash, ...... 1000.00
    July 17, by cash,...... 774.34
    September 5, by cash,..... 500.00
    August 4, by cash,...... 825.00
    August 16, by cash, ...... 510.00
    September 3, by cash,.....106.24
    September 7, by cash,..... 720.87
    May, by freights on timbers, .... 176.33
    October 19, by cash, . • . . . 1114.89
    November 4, by cash,..... 825.00
    November 19, by cash, .■ . . . ". 518.78
    December 7, by cash,..... 360.44
    1879.
    January 7, by cash,..... 297.02
    With interest to be charged on all money unpaid at 24th July, 1878, at 8 per cent, on above account.
    The Court of Common Pleas found that the Smith Bridge Company had a lien prior to that of Bowman, the trustee for the holders of the mortgage bonds, and rendered judgment accordingly. Thereupon an appeal was taken to the District Court. In that court the reply of the trustee to the second count of the answer and cross-petition of the bridge company was withdrawn and a demurrer filed. The demurrer was sustained. The case comes to this court on account of alleged error of the District Court in not overruling the demurrer.

      E. W. Tolerton, for plaintiff in error.
    We claim that by the statutes of Ohio, a mechanics’ lien may be had upon a railroad bridge. See 74 Ohio Laws, 168. This statute is remedial, and should be liberally construed. Dwarris’ Statutes, 615; Chateau v. Thompson, 2 Ohio St., 114; Thomas v. Huesman, 10 Id., 157; Davis v. Hein, 6 Id., 480.
    From the fact that the statute expresslj' provides that a person who builds-a bridge shall have a lien on such bridge, there would seem to be no room for doubt of the right to enforce it in this case. But it is claimed that public policy requires that our courts should give a restrictive construction to this statute so as to relieve railroads from its operation. >
    We maintain that such argument has no force and should not prevail. Hill v. La Crosse & M. R. R. Co., 11 Wis., 222; Platt v. N. Y. & Boston R. R. Co., 26 Conn., 544; Boston, C. & M. R. R. Co. v. Grilmore, 37 N. H., 410.
    It is claimed that a separate lien should have been taken out on each bridge.
    In reply to this we say that there, was but a single contract, and that contract was an entirety. There is no certain number of bridges mentioned in the contract. It provides for the building of “ all the remaining bridges on the line of the road ” within certain limits.
    The contract does not provide a certain price for each bridge.
    The price to be paid for the bridges was to be determined by actual measurement in lineal feet upon completion.

      On entirety and severability of contracts, see Story on Contracts, § 30, and note. Also, §§ 33, 34; Clark v. Baker, 5 Met., 452; Davis v. Maxwell, 12 Id., 286; Baker v. Higgins, 21 N. Y., 397; Stein v. Steamboat, 17 Ohio St., 471; Larkin v. Buck, 11 Id., 561; Ill. Cent. Ry. Co. v. Demars, 44 Ill., 292; Steamboat v. Geisse, 3 Ohio St., 333; 2 Parsons on Contracts (5th ed.), 517, 518.
    The rule laid down in the English case of Woods v. Russell, 5 B. & Ald., 942, that a contract payable in installments is severable, is wholly repudiated by the courts of the United States. Andrews v. Durant, 11 N. Y., 35; Moody v. Brown, 34 Me., 107; Cox v. W. & P. R. Co., 44 Cal., 18; Steamboat v. Geisse, 3 Ohio St., 333; Phillips on Liens, § 229.
    Where there is one contract for the erection of several buildings on separate lots, the mechanic is entitled to a lien on all the buildings and lots. Paine v. Bonney, 4 E. D. Smith (N. Y.), 750; McAuly v. Mildrum, 1 Daly (N. Y.), 396; Livingston v. Miller, 16 Abb. (N. Y.), 371; Moran v. Chase, 52 N. Y., 348; Okisko Co. v. Matthews, 3 Md., 168.
    The word “house,” “building,” “bridge,” as used in the mechanic’s lien law, includes the plural. Rev. Stats., § 23.

      Harrison, Olds & Marsh, also for plaintiff in error.
    The principal question is, Has a person who erects a bridge for a railroad company, under a special contract, a lien, to secure the contract price, upon such bridge and the interest of the company in the lot of land on which the bridge stands ?
    It is submitted that an affirmative answer must be given to this question. The statute regarding liens upon buildings, bridges, etc., which was in force when the bridges in question were erected (74 Ohio Laws, 168, § 1), and which the Revised Statutes re-enacted (§ 3184 et seq.), in plain and unqualified terms provides for such liens. It applies to all bridges. It enacts that any person who shall perform labor, or furnish machinery or materials for erecting any bridge, by virtue of a contract with the owner, shall have a lien, etc. There are no words of restriction or limitation in the statute. It does not provide that any person who shall perform labor or furnish materials for erecting a bridge by virtue of a contract with a natural person, shall have a lien, etc. On the contrary, the language is “ by virtue of a contract with the owner.” It does not provide that any person who shall perform labor or furnish materials for erecting a bridge by virtue of a contract with the owner, unless such owner shall ■be a railroad company, shall have a lien, etc. On the contrary, the provision is as unlimited and comprehensive as to the persons, whether incorporated or unincorporated, for whom a bridge may be erected, as it is as to the person by whom it may be erected.
    Such statutes are remedial in their character. Their 'principles are believed to be founded in natural justice and equity, in that he who should have enhanced the value of the real estate by his labor, or by the materials supplied in its erection, shall have a preferred claim on the property to 'secure the payment for such labor or materials.
    If the legislature had intended that so important a limitation upon the plain and comprehensive terms used in the statute, viz., “ bridges,” “buildings,” “ owners,” as that which would exempt from its operation all buildings and all bridges that may be erected or repaired by every railroad company in the state, it would not have been left to judicial construction. It would have been a very easy matter to have expressed such limitation. By section three of the act of May 1, 1871 (68 Ohio Laws, 107), “public property” was expressly exempted.
    The statute is, in every respect, as comprehensive concerning liens on bridges as it is regarding liens on buildings. Undoubtedly, if the statute applies to buildings which may be erected or repaired by a railroad company, it in like manner and by force of the same language applies to bridges which may be erected or repaired by a railroad company.
    Now, that such statutes give a lien upon buildings of a railroad company, for work done or materials furnished in their erection or repair, has been decided. These decisions rest upon the most satisfactory and conclusive reasons; they demonstrate that a building for a railroad company is as clearly within the letter and spirit of such statutes as any other building. Botsford v. New Haven ete. R. R. Co., 41 Conn., 451; Carry v. Railroad Co., 7 Jurist. N. S. (pt. 1), 508; Railroad Co. v. Lewton, 20 Ohio St., 410.
    As to the claim that it is against public policy to allow a lien on a railroad bridge. See Railroad Co. v. Coe, 10 Ohio St., 372, 379; Richardson v. Mellish, 2 Bing., 242; Phillips on Mechanics’ Liens, 260, § 182; 1 Wis., 215.
    The Missouri cases on the subject are not applicable in this state. The constitution of Missouri requiring that internal improvements shall forever be encouraged by the state government. That state aids in constructing roads.
    The adverse counsel says that the amended petition avers that the affidavit filed for the lien contained “ a description of the land on which said bridges stand and were erected.” They therefore submit that it is fairly to be inferred that the only description in the affidavit of the “lot of land”' on which the bridges stand was a description of the railroad. Now, the amended petition contains a description of the railroad and also of the particular parts of land on which the bridges stand. The averment quoted by counsel is in a subsequent paragraph. Taking all these allegations together, and fairly construing them, the averment means that the affidavit contains a description of the railroad as well as of the particular parcels of ground on which the bridges stand. But it is immaterial, so far as the validity of the lien is concerned, whether such is the fact, or the affidavit described only the railroad or only the particular parcels of land on which the bridges stand; and this for several reasons. In the first place, if too much ground is covered by the affidavit or claim, the lien will be restrained to and enforced against the proper amount, upon the hearing of the petition for its enforcement. In the second place, the court will, as in the case of a vendor’s lien upon a part of the right of way of a railroad, order the whole road to be sold. D., H. & B. R. R. Co. v. Lewton, 20 Ohio St., 410; Chadbourn v. Williams, 71 N. C., 444; Phillips v. Gilbert,
      101 U. S., 721; United States v. Alire, 5 Wall., 561; Tibets v. Moore, 23 Cal., 208; Phillips on Mich. L., §§ 379, 389; Gordon v. South Fork Canal Co., 1 McAllister, 521.

      Bowman & Bowman, for defendant in error.
    1. The contract was not entire but severable and the lien was therefore void.
    It appears from the contracts set forth in the petition of the plaintiff in error:
    1st. That by the terms of the contract each bridge to be built was a separate and distinct structure, having a separate and distinct location.
    2d. That the material for each bridge was to be carried by the railroad company for the plaintiff in error to a different place.
    3d. That a distinct and different time was provided for the construction of each bridge.
    4th. That each bridge had its own, and a different price.
    5th. That each bridge was to be settled for on completion, and separately paid for.
    Now it cannot be successfully claimed that the plaintiff in error did not have a right to demand settlement under the contract for each' bridge so soon as it was completed, and that independently of the state of the work upon any of the other bridges.
    The fact that the contract for each bridge was contained in one and the same writing is an immaterial circumstance, so long as the writing contains a separate contract for each structure. 2 Parsons on Contracts (2d ed.), 29, and cases there cited; Campbell v. Bank, 10 Ohio St., 333; Manufacturing Co. v. Wakefield, 121 Mass., 92; Clark v. Baker, 5 Met., 452.
    Inasmuch, therefore, as the contract was a several one for each bridge, the plaintiff could not take one mechanic’s lien upon all the bridges for the amount due him, nor datft his lien from the beginning of the work on the first bridge ; and his lien is, we submit, therefore, invalid.
    2d. Did the right to a mechanic’s lien exist in favor of the plaintiff in error upon the railroad, or any part thereof, even though the part upon which the lien was sought was a structure formed like a bridge ?
    The original cross-petition of the plaintiff in error alleged that the lot of land which the plaintiff described in the affidavit filed to secure its lien, was the railroad itself. The amended petition sets forth that each bridge stands upon a parcel of land, which is described as co-extensive with each bridge; and then avers that said several parcels of land, on which said respective bridges are situated, are parts and parcels of the Springfield, Jackson & Pomeroy R. R., and then gives a general description of the railroad.
    The amended petition then avers that the affidavit filed for the lien contained “ a description of the lands on which said bridges stand and were erected.” So that, we submit, it is fairly to be inferred that the only description contained in the affidavit of the “ lot of land ” on which the bridges stood was a description of the railroad.
    If the term “ lot of land ” can be fairly applied to any part of the line of a railroad it could only refer to the right-of-way upon which its entire line was located and constructed. The statute certainly never intended to give a lien to a mechanic upon that part only of the land of the owner which was actually covered by the structure, and sever it, irrespective of consequences, from the tract upon which the structure was situate, and in connection with which it was designed to be used.
    The portions of the railroad, upon which the plaintiff in error now claims to have a lien, are, when separated from the railroad, incapable of any use as bridges, or for any other purpose, and are of no value when thus separated, excepting for the purpose of being torn down and removed.
    We do not deny that the statute gave a lien upon a bridge, because there are plenty of such structures which are complete in themselves, and capable of valuable use as such. McPheeters v. Bridge Co., 28 Mo., 465.
    Full effect, therefore, can be given to our statute without construing it so as to include a railroad, or any part thereof.

      The mechanics building and furnishing the abutments of the bridges and the embankments which formed the approaches thereto, the ties and iron, and, indeed, all the work done upon the line of railroad, necessary to create a structure over which cars can be driven, have each alike contributed towards the building of the one entire structure, and under the decisions in Ohio (Choteau v. Thompson, 2 Ohio St., 127), all of them would have equal liens, if the mechanic’s lien statute applied to a railroad or any part thereof, upon the structure which they had jointly created for the payment of their labor and materials.
    A railroad is a distinct species of property. It is neither land nor a lot of land; but is a structure composed of many parts, constructed with a great variety of material, which, with the franchise with which the structure is inseparably connected, constitutes the railroad.
    It is conceded that no mechanic’s lien can be had upon the railroad, but the plaintiff in error claims that it has a lien upon a part of the railroad, which it calls “ a bridge.” Cox v. Railway Co., 44 Cal., 28.
    Now, upon what shall the plaintiff in error have its lien, if not upon the railroad ? Shall it include, besides the particular material which plaintiff has furnished, the abutments built by another contractor? the approaches built by still another? that portion of the right-of-way over which the structure built by the plaintiff in error extends? Why extend its lien to the right-of-way ? Of what use is it to the structure of the plaintiff in error considered separately ? Neither the connecting embankment, nor the abutments, nor the right of way serve any useful purpose in connection with the work performed by the plaintiff in error, except some franchise be connected.
    The reason why our statute does not extend mechanics’ liens to railroads is that, in the building of these great and beneficent public works, such large sums of money are required that it is necessary to authorize the corporation building them to mortgage their present, and future to be acquired property, together with their franchises and income, in order to secure the means necessary to pay the contractors who are to be engaged in the construction of the work.
    If, now, the lien of this mortgage were to be made subject to a lien by the contractors engaged in building the road, it would simply be impossible ever to obtain the money to build a railroad, excepting through a capital stock ample for that purpose.
    Now it is within the knowledge of every one that sufficient capital stock cannot be obtained to build a railroad, and the law, of necessity, therefore, gives protection to those furnishing the money on the faith of its mortgage bonds by omitting a mechanic’s lien in favor of the contractor; because through these mortgages the funds are provided with which to pay the contractor for the labor and materials necessary in the construction of the road. Rutherford & Co. v. Ry. Co., 35 Ohio St., 558; Dunn v. N. M. R. R. Co., 24 Mo., 493; La Cross Ry. Co. v. Vanderpool, 11 Wis., 124; Houck on Liens, 161; Overton on Liens, 570; 24 How. (U. S.), 257; 71 N. Y., 498.
   Nash, J.

The first question presented in this case is: “ Did the act of May 4,1877 (74 Ohio Laws, 168), give the plaintiff in error a lien upon the bridges constructed by it under its contract with the railroad company, and in accordance with the allegations contained in the second count of the answer and cross-petition?” This question is an unsettled one in Ohio, and the Supreme Court, in the case of Rutherford & Co. v. Railroad Co., 35 Ohio St., 559, was careful to say that it did not decide whether or not a lien like the one now claimed could be taken. The law under which this lien is claimed reads:

“ Any person who shall perform labor or furnish machinery or materials for constructing, altering or repairing any boat, vessel, or other water craft, or for erecting, altering, repairing or removing any house, mill, manufactory, or other building, appurtenance, fixture, bridge, or other structure, by virtue of a contract with the owner or owners, his or their authorized agents, shall have a lien to secure the payment of the same upon such boat, vessel or other water craft, or upon such house, mill, manufactory or other building, appurtenance, fixture, bridge or other structure, and the interest of said owner or owners in the lot of land on which the same shall stand or be removed to.”

It will be observed that in describing the bridge, or kind of bridge upon which a lien may be had, the words “ any bridge” are used. These words, if given their ordinary meaning include a railroad bridge. No restrictive words, excluding a railroad bridge from the operation of the statute, appear. The statute is so comprehensive that it includes all kinds of bridges.

It has been suggested in argument that we may find that the General Assembly did not intend that a lien should extend to railroad bridges. This intent does not appear from the words of the statute. Indeed, they express an intent contrary to that which the defendant in error would have us find.

We have been told that to place a lien upon railroad bridges would seriously interfere with the interests of traffic and trade; that it would be against public policy, as such action would impede the construction of railroads, and that such a lien would be difficult of enforcement. On account of these reasons it is said that the legislature could not have intended to fix this lien upon this class of bridges. These are arguments proper for the legislature to have considered prior to the act of 1874, and which it is presumed to have weighed. If the language used by the legislature in a statute is precise and unambiguous, we conceive it to be our duty to interpret the words in their natural and ordinary sense, although the result may conflict with our ideas of public policy.

The arguments which have been advanced, with force and skill, to exclude railroad bridges from the operation of this statute would apply with equal aptness to bridges owned by turnpike companies.

A turnpike bridge is a part of an entire thing, to wit: the public road, owned by the turnpike corporation. To subject such a bridge to mechanics’ liens would seriously incommode the public and injure traffic and trade. Turnpike bridges belong to a distinctive class of bridges just as plainly as do railroad bridges. It makes a draft upon one’s credulity, to believe that the legislature when it used the words “any bridge” intended to point out a turnpike bridge, but had no reference to a railroad bridge.

Bridges constructed and owned in Ohio by corporations, organized for that sole purpose, invariably connect parts of a public highway. To subject them to a lien, to sell them and to take them away would seriously interfere with public interests.

Exempt all these bridges from mechanics’ liens and all in the way of bridges left to be affected by the statute would be bridges constructed by private persons upon their lands. These are few in number and of little value. We cannot believe that it was the intention of the legislature to give a mechanics’ lien upon these alone.

It has also been said that the reason why our statute does not extend mechanic’s liens to railroad bridges, is that in the building of great and beneficent public works — such as railroads — such large sums of money are required, that it is necessary to authorize the corporation building them, to mortgage their present and future to be acquired property, together with their franchises and income, in order to secure the means necessary to pay the contractors who are to be engaged in the work of construction; that if the lien of this mortgage was to be made subject to a lien by the contractors engaged in building bridges, it would be simply impossible ever to obtain the money to build a railroad, excepting through a capital stock ample for that purpose. It does not occur to us that this result would necessarily follow. In Ohio a railroad -company is required to have a capital stock, and in most cases it is very large. A railroad company is also authorized to issue bonds and mortgage its property in an amount not exceeding the amount of its capital stock. If the capital stock usually subscribed before the work upon a railroad is commenced is actually paid, it would be sufficient to largely forward the work of construction when prudently expended. If this should be done and then a loan made upon mortgage bonds, money enough would be procured to easily complete the railroad and pay all engaged in its construction. The bond-holders would have behind them as security:

1st. The' work completed with the money procured by the stock subscriptions.

2d. The work, rolling-stock, equipment, etc., paid for with the money advanced upon their bonds.

3d. The liability which our constitution and statutes attach to the holders of stock.

Such is the theory of our law in regard to railroad building. The right of a mechanic or builder to have a lien upon a railroad bridge will not interfere with or embarrass companies, who propose to build railroads in this way. It may interfere with companies proposing to build railroads entirely upon borrowed money and without any paid up capital stock. If the giving of these liens will have a tendency to cause the theory of our statutes to be practiced, the statute giving the lien is in accord with sound public policy and is promotive of the value and permanency of railroad securities.

In Railroad v. Lewton, 20 Ohio State Reports, 401, it was held that one who sold a strip of land to a railroad company to be used as a part of its right of way and roadbed, has an equitable lien upon the land so sold. And it was further held in the same case, that “ when the right of the public to maintain the continuity of a public highway precludes the right to sell a section of a railroad, a necessity arises to decree the sale of the whole road in order that equity may be done.”

In this case, the right of the public to maintain the continuity of the Springfield, Jackson & Pomeroy railroad, precludes the right to sell the section or sections of the railroad upon which these bridges are situated. It follows, then, that to protect the lien of the mechanic, the sale of the whole road must be decreed.

It appears from the pleadings that under the contract the plaintiff in error built six bridges. Was this contract an entirety for the building of six bridges, or must it be treated as a several contract between the parties for the building of each of the six bridges ? As the most certain way of making the character of this contract known we have caused it to be given in full in the statement of facts.

We conclude that it must be treated as one contract and not as six contracts. When the bridge companj'- made this agreement in writing and agreed to its terms, it undoubtedly was influenced by the fact, that it was securing one job of work consisting of several bridges. The railroad company was also govered by the same consideration. The number of bridges to be built is not mentioned in the contract, but it provides for the building of all the bridges upon the line of the road between two specified points. It does not provide a price certain to be paid for each bridge, but this depends upon the length of the span. The object sought' to be accomplished by this contract was not to secure the construction of one bridge, or of two bridges, but of all the necessary bridges between two designated points, so that the road could be operated as a railroad. In its characteristics this contract does not differ from the one which was held to be an entire contract in Steamboat Wellsville v. Geisse, 8 Ohio St., 333, and we conclude that the contract now in controversy was an entirety and so treat it.

Judgment reversed.

Granger, C. J.,

dissenting.

When the decision in this case was announced on February 5, 1884, I concurred. Although I did not believe that the members of the legislature, in fact, intended to authorize a mechanic’s lien upon a railroad bridge, it then seemed to me that they had so used the word “bridge” in the statute, that the courts must hold that, in law, the intent to create the lien existed. I then felt, as strongly as I do now, that the effect of such legislation is unfair towards all who furnish material and labor for the construction of other parts of a railway; that it was contrary to the previous legislative policy that had never given such a lien for labor or material furnished in constructing a part of any structure without expressly extending that lien to the whole structure; and that it would greatly embarrass railroad companies in negotiating the loans so essential to the building of their roads. But I also believed that the legislature had the legal power to give a lien to the builder of a bridge, and to omit to give one to the builder of a railway embankment; to change its policy; to make unwise laws, and that the power of courts over statutes was limited to the enforcement of the legal meaning of their words construed in the light of subject matter and context.

There remained upon the docket another cause between the Smith Bridge Company and another railroad company in which the same question existed. The importance and difficulty of the question justified the court in delaying the entry of judgment in this case until after full argument of the other. Such argument and my own study and reflection have convinced me that the word “bridge,” as ordinarily used, does not include a railroad bridge, and I was unable to concur in the judgment sustaining the lien in the second case. It is unnecessary to report both causes, and I therefore recall my concurrence in the decision announced in February, and here briefly present the reasons for my dissent.

In its widest sense the word “bridge ” applies to any sort of structure extending from one point of support across an open space to another point of süpport, and of sufficient strength to permit the transit of some material object. But the usage of the people often takes charge of a word, and so applies it, that, when uttered, or written, without accompanying words, or context, the hearer, or reader, understands that the speaker, or writer, refers to one of a particular class of objects, instead of any one of many classes embraced by the fullest meaning of the word. Before any railroad was constructed the word “bridge” in connection with roads and highways had, by the people, been thus applied to structures across streams for the passage of travellers in ordinary modes. A road led up to each end of such a structure. The traveller left the road and entered upon the bridge, and again left the bridge and took to the road. Constructively, in a legal sense purely, the road sometimes crossed the bridge, and the bridge was, sometimes, in like manner a part of the road; but actually, in fact, the bridge was distinct froan the road. Popularly then the word “ bridge ” came to mean a structure whose primary object was the support of persons, animals and vehicles while crossing a stream or ravine. This meaning belonged to the word when the first railroad bridge was built. What is the primary object of such a bridge ? What is the thing being constructed while it is being built? A railroad is a structure consisting mainly of a track, on which trains of cars, drawn by movable steam power, carry freight, and generally passengers. This track is formed of iron rails laid upon cross timbers, and is so supported a^ to make the grades practicable for the traffic intended. This support varies with the character of that portion of the earth’s surface traversed by the road. Sometimes it is solid rock cut down to grade, the bottom of a “ cut ” or “ tunnel”; the name depending upon the absence or presence of a roof. At other points this track rests upon an embankment, or passes along the even surface of favorable ground. Where the earth has been cut into drains for the passage of water necessity has required supports of still different kinds; and such parts of the railroad are for convenience named culverts, trestle work, bridges. For various good reasons many of these supports called bridges are constructed with sides and tops. One reason for this is the greater strength supposed to result from this form ; another may be the better protection of the material from the influence of the weather.

But the one thing made, built or constructed — the entirety —is “ a railroad.” The primary object of a railroad bridge is to enable a railroad to cross a stream, or ravine, and to support the railroad in position. The railroad crosses the bridge. Railroad passengers simply travel on the railroad. When two things are alike only in principle, or in their general purpose, ordinary language calls them by different names. I think that ordinary usage, long before the passage of the act before us here, spoke of all bridges on ordinary highways (whether public, or private, turnpikes, or dirt roads) as simply “ bridges,” and of bridges under railways as “ railroad bridges,” or so connected the word “ bridge ” with other terms as to indicate that a bridge on a railway was intended. In which sense did the legislature use the word “ bridge ” in the mechanic’s lien acts ?

It may be useful to trace the history of Ohio legislation upon the subject of mechanics’ liens.

In 1823 (Chase, 2160), was passed “ An act to create a lien in certain cases.” This authorized a mechanics’ lien upon “ any house, boat, vessel, or other water craft, building or buildings, erected or constructed, after the taking effect of this act” within Cincinnati. In 1833 this act was extented to Fulton township, Hamilton county.

The act of March 12, 1840, extended said act to the counties of Hamilton, Washington, Montgomery, Scioto, Muskingum and Knox; and so broadened it as to “ extend the lien to all mechanics, laborers and furnishers, for the value of their labor, skill and materials, jointly or severally, therefor, on contract with the owner or owners, for all repairs, additions, or improvements, upon any house, boat, vessel, or other water craft, building or buildings whatsoever.” (38 Ohio Laws, 115, 116).

On March 11, 1843, the first general “mechanics’ lien law ” was passed.

The first section of this act (Swan, 1854, p. 551), authorized a lien upon a “ house, mill, manufactory, or other building or appurtenance, and the lot of ground upon which the same shall stand.”

The second section enabled one who did work or furnished material for a first contractor to secure a lien upon the moneys coming to him under the contract by a notice to the owner. The marginal notes to the act call such persons “middlemen.”

In May, 1871 (68 Ohio Laws, 107), this second section was so amended that such a “ middleman ” could, by notice to the owner, acquire a lien upon moneys due from him to the first contractor for work or material furnished for a bridge, road, turnpike, street, railroad, &o.

In March, 1875 (72 Ohio Laws, 166), the first section of the act of 1848 was amended by substituting the words “ for erecting, repairing, removing, raising or lowering,” instead of the words “ for erecting or repairing,” and by inserting after the words “ or appurtenance ” the words “ or any portion thereof.”

At the same time said second section was again amended by introducing the words “removal, raising, lowering,” and by substituting “ apparatus ” for “ appurtenance.”

The act of March 31st, 1874 (71 Ohio Laws, 50), entitled “An act to secure pay to persons performing labor or furnishing materials in constructing railroads,” required railroad companies to provide, in the contract for the construction of a railroad, “ or any part thereof,,” for the payment of the labor, materials, &c., before any part of the contract price is paid to the contractor, and made the railroad company directly liable to the persons engaged under the head contractors in furnishing material, performing labor, furnishing board, &c.

Although this act seemed to accomplish the intention expressed in its title, sections 3207 to and including 3210, Revised Statutes, are yet more comprehensive.

But, prior to the enactment of the sections last named, the act of May 4, 1877 (74 Ohio Laws, 168), was passed. This was intended as a revision and amendment of prior mechanics’ lien laws, and it repealed the acts of 1843, 1871 and 1875. In this act the word “bridge’’made its first appearance in the first section; the section granting a lien to the first contractor upon structure and lot.

The third section provided, “ That any person who shall perform labor or furnish materials for constructing, altering, or repairing any street, turnpike, road, sidewalk, way or drain, ditch, or sewer, by virtue of a private contract between him and the owner or owners of lands abutting thereon, his or their authorized agents, shall have a lien “for the payment of the same against said lands,” &c.

I remark, in passing, that while a railroad is “ a road,” and in certain connections is, in speech and writing, called “ the road,” it is apparent that the word “ road ” in this section, must be construed in its ordinary and popular sense, and that if the company happened to own any abutting land no lien thereon could be acquired under this section.

The rights of “ middlemen ” are provided for in the tenth section of the act, and no one is aided by it unless his sub-contract relates to the construction, alteration, removal .or repair of any property, appurtenance or structure, as described in the said first and third sections of this act.

It should be noted that this act repealed (as already stated) the act of 1871, under which a sub-contractor on a railroad was treated as entitled to all the rights of a middleman. It expressly provided for all persons recognized by the act of 1871, either as lien holders or as middlemen, except those doing work or furnishing materials for “ a distillery” or “a railroad.” It is possible that respect for the views of advocates of prohibition caused the omission of express protection to any contributor to the erection of a distillery, but no such reason can be supposed for the omission of “railroad.” I am satisfied that the legislative intent then was to treat the act of March 31, 1874 (71 Ohio Laws, 51), as sufficient for all “ persons performing labor, or “ furnishing materials, in constructing railroads, or any part thereof,” and therefore no reference to. a railroad was made by the act of 1877.

I think a careful review of this legislation justifies the following conclusions: -

(a) The tendency has been to make no distinction between those contributing to the construction of anything upon which a lien is given, except by placing original contractors in one class, and sub-contractors in another.

(5) No lien upon a railroad has ever been granted.

(e) Unless the word “bridge” in the act of 1877, includes a “railroad bridge,” in no case has a lien been authorized upon a part of a structure unless under the like conditions, a lien upon the whole of that structure was expressly provided for.

Finding then that the word “ bridge,” before and in 1877, was popularly used in different senses; that generally it did not include a railroad bridge unless that meaning was indicated by the context or the circumstances under which it was used, I now think that it falls within the power, and is a duty, of the court to determine in which sense the legislature used the word in 1877.

In Rutherford v. The R. R. Co., 35 Ohio St., 559, the supreme court decided that the act did not authorize a lien upon a railroad. The opinion of the majority of the court in this case well shows that a lien upon the bridges can only be enforced by treating it as, in effect, a lien upon the railroad.

The result of the holding determines that the legislature granted a special privilege to one class of persons furnishing labor and materials for the construction of a railroad. It seems to me that such a result is by itself sufficient to demonstrate that, if the word “bridge” as used in the act is fairly susceptible of either of two meanings — one of which escapes such a result, the General Assembly intended that use. Thus the real difference between the majority of the court and myself may be considered as limited to this single point: I hold that in 1877, the word bridge in ordinary parlance did not include a railroad bridge, and that the legislature used it in that ordinary sense. The majority think otherwise. While thus announcing my dissent, I do it with a strong sense of the difficulties that environ the question.


source: Caselaw Access Project

author: McCauley, J.

license: Public Domain

text:
    Moore v. Dunn.
    In an action by M. against D., a demurrer to tbe petition was sustained for want of a material averment therein, and M. failing to amend, judgment was given for D.
    M. afterward brought another action against D., upon the same cause of action, and in his petition supplied the material averment wanting in the petition in his first action.
    Held: That the judgment in the first action was not a bar to the cause of action alleged in the second one. .
    Error to the District Court of Brown County.
    The plaintiff in error on June 25th, 1875, commenced an action against the defendant in error alleging in his petition that on April 80th, 1873, he as surety and one Handman as principal, made and gave a promissory note for $500 to the defendant Dunn; that there was $400 of usury included in the note; and that “ before said note became due the defendant transferred the same by indorsement and delivery to one Joseph Liming,” and averring further that by reason of the transfer he was unable to make defense that the note contained usury. A demurrer was filed to this petition, which was sustained. After sustaining the demurrer the entry in the common pleas proceeds: “And thereupon the plaintiff electing to abide by his petition and not desiring to amend said petition, it is considered by the court that the plaintiff has no cause of action against the defendant, and that the defendant go hence without day.” On November 16th, 1877,‘the plaintiff, Moore, filed his petition in the same court, praying for judgment against Dunn upon the same cause of action, which was alleged in the same words as in the petition in the former action, except that in the petition in the latter case the plaintiff supplied the averment -for the want of which the petition in the first case was held not to state a cause of action. This averment was, that Liming had purchased the note before maturity, for value and without notice or knowledge that it contained usury.

      In this action the defendant set up as a defense the judgment given for him when the demurrer in the first action was sustained.
    This defense was not sustained in the common pleas and judgment was given for the plaintiff. This judgment was reversed by the district court. And the plaintiff in the common pleas now asks a reversal of the judgment of reversal in the district court.

      W. W. Young and C. Bambach, for plaintiffs in error,
    cited Love v. Truman, 10 Ohio St., 45 ; Packet Co. v. Sickles, 5 Wall., 592; Bigelow on Estoppel, 22, 24 ; Porter v. Wagner, 36 Ohio St., 471; Gould v. R. R. Co., 91 U. S., 533; Landenbock v. Collins, 4 Ohio St., 261.

      Thomas, McKnight Thomas, for defendant,
    cited Bell v. McCullock's Executors, 31 Ohio St., 397; Hites v. Irvin's Administrator, 13 Id., 283; Covington Bridge Co. v. Sergeant, 27 Id., 233; Roby v. Rainsberger, 27 Id., 674; Somesen & Sears v. Cresap, 28 Id., 668; Petersine v. Thomas, 28 Id., 596; Pollock v. Cohen, 32 Id., 514; Erving v. McNary, 20 Id., 315; Beaumont v. Herrick, 24 Id., 446.
   McCauley, J.

The single question in this case is, whether or not a judgment for the defendant upon a petition which did not state facts sufficient to constitute a 7ause of action, is a bar to a future action between tbe same parties for the same cause. A judgment for the defendant given upon the facts stated in the petition is conclusive upon the plaintiff only as to the facts therein stated. If the facts alleged make a cause of action a judgment upon them is final between the parties. If the facts do not state a cause of action a judgment upon them is not a judgment on the merits of the case, and does not stand in the way of a future action for the same cause. Gould v. Evansville R. R., 91 U. S., 526; Wells v. Moore, 49 Mo., 229; Gilman v. Rines, 10 Pet., 298. Counsel for defendant in error urge, upon the authority of Covington Bridge Co. v. Sargent, 27 Ohio St., 233; Rody v. Rainsberger, Id., 674, and Bell v. McCulloch, 31 Id., 397, that tbe second action can not be maintained. These cases do not support the claim of the defendant. They apply to a wholly different question. In these cases sufficient facts were alleged to make a cause of action, and the cases were tried upon the merits, after which the losing party set up the same claim in a different form, or asked for different relief upon the same facts. The cases are authority for the rule that, when issues have once been determined between the parties involving the merits of the matters in controversy, the same issues will not be heard again, even though the same issues may be supported by a different state of fact. The pleadings in these cases stated causes of action and defenses, and the trial was on the merits. The merits of the case having once been heard the judgment was final; while a judgment for a defendant on demurrer to a petition which did not state a cause of action determined nothing, only that the facts alleged were not sufficient to constitute a cause of action. The determination, therefore, did not reach the merits of the case and did not conclude the plaintiff in a future action in which sufficient facts were alleged.

Judgment of District Court reversed and that of Common Pleas affirmed.


author: Dickman, J.

text:
    Benninger v. Hess.
    1. In a commercial partnership, each partner has the right to borrow money and give notes for partnership purposes in the firm name, and thereby bind all the partners, notwithstanding a private arrangement among themselves to the contrary, if such arrangement be not known to those giving the credit.
    2. B., such a partner, with authority to borrow money in the firm name, representing that he wished to borrow money for the use of the partnership, effected a loan on the strength of such representation, and, in two days after receiving the money, brought to the lender a note therefor, payable to the order of the lender, signed by the partner in . his individual capacity, and endorsed by him in the name of his firm, Beld:

      That the note not having been delivered until after the transaction, the form of the note was only a circumstance for the consideration of the jury in connection with what was said and done at the time of the transaction, in determining whether at the time of advancing the loan, the lender had notice that the partner borrowed the money for his own private use.
    3. Where the act of the partner is within the scope of the partnership, a declaration made by him at the time of the transaction, is competent to show, that the act was done in behalf of the partnership ; and if the credit was obtained on the faith of such declaration, the falsity of the representation is not material.
    Error. Reserved in the District Court of Hamilton County.
    The facts will be found in the opinion.
    Moulton, Johnson £ Levy, for plaintiffs in error.

      O. M. Lotze, and G-oelel Betting er, for defendant in error.
   Dickman, J.

The original action was brought by the defendant in error, Charles Hess, in the Superior Court of Cincinnati, against Jacob Benninger, George F. Ireland, William F. Bailey, and James W. Gaff, as copartners under the firm name of Benninger, Ireland & Bailey, on a promissory note for $1500, bearing date July 5, 1877, payable in six months after date to the order of Charles Hess, signed “ Jacob Benninger,” and indorsed “ Benninger, Ireland & Bailey.” About the end of June, 1877, Benninger called at the house of Hess, and asked him if he had any money to spare, representing to him, in what may be treated as equivalent language, that his firm — then engaged in the business of pork packing in Cincinnati — was short of money, and had a note of $10,000 to pay that week. Hess replied that he had “ not exactly ” money to spare, but that he could let him have $1500 until Christmas. Accordingly, on July 2, 1877, Hess handed him $1000, and in a day or two thereafter $500 more. Upon receiving the money Benninger said “ he would fix up a note ” and “ bring it up from the pork house,” and thereupon went from the residence of Hess directly to the pork house of Benninger, Ireland & Bailey, but did not bring the note to Hess until about two days afterwards. The note, described as above, was written at the pork house by one of the firm’s clerks, and the name of the firm and that of Benninger were attached thereto, at the same time, by Benninger himself, though that fact was not known to Hess. The petition, drawn in the usual form, was amended, so as to contain the allegation, “ that the note was given for money loaned the firm by the plaintiff.” It was put in issue, and contended by the defendants on the trial in the court below, that the note was indorsed by Benninger without the sanction or authority of his firm; that the endorsement was made outside the business of the firm, and without their knowledge or consent; that none of the proceeds of the note was applied to the business or use of the firm; and that the indorsement was wrongfully made by Benninger to and for his own individual use solely. In the Superior Court a verdict was returned for the plaintiff, and judgment was rendered accordingly. On petition in error in the District Court the case was reserved to this court for decision.1

Among the implied powers of a partner, one of the most important and necessary is, that of borrowing money on the credit of the firm. The members of a trading partnership could not meet the sudden exigencies of commerce if they did not possess this power. Accordingly, it is now well settled; that in ordinary commercial partnerships, each partner has the right to borrow money for partnership purposes, in the firm name, and when credit is thus extended to a partnership, it will bind all the partners notwithstanding any private arrangement among themselves, if such arrangement be not known to those giving the credit. The loan must be made in good faith, for the use of the firm, and if so made, a subsequent misapplication of the money to the individual use of the partner, will not deprive the lender of his remedy against the other members of the firm. Kleinhaus v. Generous, 25 Ohio St., 667. Nor will it be material in such case, that the other partners were not informed of the transaction, and repudiated it as soon as it came to their knowledge. And, as in the case at bar, if a partner borrows money for the use of the partnership, his declarations made at the time of the transaction, will be competent to show that the act was done in behalf of the partnership, and if the credit was obtained on the faith of such declaration, the falsity of the representation will not be material.

If any agreement ever existed between the partners in the firm of Benninger, Ireland, and Bailey, as to a partition or distribution among themselves of duties and powers in the management of the partnership affairs, it is not claimed that any knowledge of such agreement was ever brought home to Hess. To him, one partner was clothed with as much authority, and was as much the financial agent of the concern, as another. Doubtless, as to him, Benninger was fully empowered to obtain the loan for and in behalf of the firm. He virtually represented to Hess, that he was acting for the partnership, and in our judgment, Hess honestly believed that he did so act. Under the charge of the court, in which we find no error, and upon the testimony as disclosed in the record, the jury must have believed, as indicated by their verdict, that credit was given in good faith to the firm by Hess, and that Benninger was acting in the usual course of business for the firm in obtaining the loan. Under such circumstances, the liability of the firm became fixed before the delivery of the note; and the note might have been discarded as the foundation of the action, and have been used in evidence in an action for money loaned. The note was given after the transaction was complete, and did not therefore from the form in which it was executed, tend to put the lender upon inquiry, or furnish ground to believe at the time of the loan, that the money was to be used for other than partnership purposes.

It will not be disputed, that if it appears on the face of the bill or note, that it was signed by a partner in the name of the firm as surety, this will be notice to the world that it was not given in due course of partnership business. Nor will a different rule prevail although the fact that the firm is surety may not be written out in words, but simply inferred as a conclusion from the character of the note or the position of the names of the parties. But at the time Hess lo.aned the money, the note was not in existence, and could not have put him upon his guard, by indicating that Benninger had assumed to make his co-partners makers, with the obligation of sureties. The note not having been drawn and delivered until after the transaction was complete, the form of the instrument was only a circumstance for the consideration of the jury, in connection with what transpired at the time of the loan, in determining whether the lender then had notice, that the partner borrowed the money for his own private use. Certainly the lender was not to, lose his remedy,-because the borrowing partner chose to supplement the previous obligation and liability of the firm, by giving a note in which he may have transcended his power as an agent of his co-partners.

It is contended, however, that the verdict and judgment in this case are predicated upon a different .cause of action from that contained in the pleadings; that the liability sought to be enforced'was on a promissory note, while the cause of action proved was money loaned, or the consideration of the note.

By section 5294 of the Revised Statutes, “ No variance between the allegation in a pleading, and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon the merits, and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as are just.”

And by section 5295, of the Revised Statutes, “ When the variance is not material, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs.”

It was not alleged or proved to the court, that Benninger, Ireland & Bailey were misled in any respect by any variance between the pleading and proof of the plaintiff below. And in our opinion, whatever variance there may have been between the allegations in the petition and the proof, it did not mislead the defendants b.elow to their prejudice in maintaining their defense upon the merits, and therefore was not material. Not being material, the court might have directed the facts to be found according to the evidence, and have ordered an immediate amendment without costs. But the fact that the pleading under the circumstances was not amended to conform to the proof, does not constitute ground for the reversal of the judgment on error. Sibila v. Bahney, 34 Ohio St., 399.

As provided by section 5114 of the Revised Statutes, “ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding * * * by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved/’

And by section 5115, of the Revised Statutes, “The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of .such error or defect.”

These provisions are founded upon the principles of an enlightened justice. In Hoffman v. Gordon, 15 Ohio St., 211, the court say: “The evident object of the code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case upon the evidence, outside of the pleadings, and if objection be made, to allow the pleadings to be conformed to the evidence at once and without terms.” Where a judgment has been rendered, and. there has been a variance between the pleading and the proof, but not such as to mislead the opposite party to his prejudice, and where there has been an omission in such case to conform the pleading to the facts proved, it will not be in furtherance of justice, to deprive the plaintiff of the fruits of the trial, by a reversal of the judgment on error.

The foregoing sections of the Revised Statutes correspond literally with sections of the New York code in pari materia. In the case of Bennett v. Judson, 21 N. Y., 238, the court say: “ The allegation might have been made to conform to the proof, and where this might properly be done at the trial, it can be done even after judgment. This court in such cases never reverses a judgment, although the amendment has not been actually made.”

In our view, the record discloses no error that requires a reversal of the judgment of the court below. The judgment of the Superior Court is therefore affirmed.

Judgment accordingly.


author: Nash, J.

text:
    Dresbach vs. Stein. Dresbach vs. Dresbach.
    1. S. made an assignment of all his property to D. and W. for the benefit of his creditors, under the assignment laws of the state. A portion of the real estate was sold by the assignees at private sale, and all steps taken about the sale were in strict conformity to amended section five of “an act regulating the mode of administering assignment for the benefit of creditors.” (58 Ohio Laws, 105.) — Held: This was a judicial sale.
    2. Where the assignees afterwards brought an action against the purchasers to foreclose the mortgage given to secure a portion of' the purchase money, it is not a good defense to show that the assignees and purchasers were mistaken as to the number of acres in the tract of land so sold.
    Error. Reserved in the District Court of Pickaway County.
    On the 5th of November, 1875, Isaac W. Stage made an assignment for the benefit of his creditors to Isaac E. Dresbach and Festus Walters, and the deed of assignment was at once filed with the probate court of Pickaway county, Ohio. On November 12th the assignees filed a petition in the probate court asking that they be authorized to sell the real estate of the assignor, to which proceeding the assignor, his wife, all lien holders and other parties having an interest in the land, were made parties. The land was in two tracts, one of 591 acres in Walnut township and the other of 288 acres in Circleville township. Proper orders were after-wards made authorizing the sale of the land and the subdivision of the 591-acre tract into four parcels. Lot No. 1 of this sub-division is the one involved in this case. Prior to October, 1877, the assignees offered this lot No. 1 for sale four different times, but it remained unsold. On the 8th of October, 1877, the assignees asked the probate court for an order to sell this lot at private sale, which request was granted. October 12th the assignees reported to the probate court that they had sold these premises to David H. Stein and Wilson Dresbaeh at #50 per acre. The next day the sale was confirmed by the court and the assignees directed to make and deliver a deed to the purchasers. The terms of sale were one third cash, one third in one year and the remainder in two years. The premises were supposed to contain three hundred and sixty and acres. Stein was the purchaser of one half and Dresbaeh of the other half. S. & D. sub-divided the premises and to secure the deferred payments each, with his wife, on the 20th day of October, executed and delivered to the assignees his mortgage.deed.
    In January, 1880, the assignees instituted two suits in the court of common pleas of Pickaway county, one against Stein and wife and one against Dresbaeh and wife, asking for the foreclosure of the two mortgages and the sale of the mortgaged premises on account of the non-payment of the last installment of purchase money. As a defense the defendants averred that the parcel of ground sold to them by the assignees only contained 320-35B2g- acres, and that this mistake was made by the surveyor employed by the assignees to sub-divide the 591 acre tract. ■ They therefore asked that this mistake be corrected by the surrender and cancellation of the notes and mortgages upon the full payment by them of the purchase money for 320-j^ acres at $50 per acre. To the answers replies were filed and issues of fact ■ made up.
    The court of common pleas rendered judgment in favor of the assignees and appeals were taken to the district court.
    Upon the hearing of the case of Dresbach et al., Assignees, v. Stein and wife, by the district court, the. folio wing order was made:
    “ This day came the said parties, by their attorneys, and this cause came on for hearing on the pleadings and evidence, and the evidence being heard, and it appearing to the court that important and difficult questions are involved in this case, on motion of the defendants, it is ordered that this .case be, and the same is hereby reserved and ordered to be sent upon the certified bill of evidence filed herein, to the supreme court of this state, for its decision on the same.”
    The same order was made in the case of Dresbach et al., Assignees, v. Dresbach and wife.

      Festus Walters, for plaintiff in error.
    I. The sale in this case was a judicial sale. Matter of Henry Hooper, 22 N. Y., 67; Sheldon v. Newton, 3 Ohio St., 495; Williamson v. Berry, 8 How., 547; Mason v. Osgood, 64 N. C., 467; Moore v. Schultz, 13 Pa. St., 102; Rorer on Judicial Sales, 3, 7, 9, 10, 156; Freeman on Void Judicial Sales, 14; Amor v. Cochrane, 66 Pa. St.., 308; Halleck v. Guy, 9 Cal., 181-195 ; 5 Mason C. C., 414-420; Bussey v. Hardin, 2 B. Mon., 407; Robb v. Irwin, 15 Ohio, 698; Aultman v. Seiberling, 31 Ohio St., 205; Roberts v. Shroyer, 68 Ind., 64; 39 N. Y., 302. The purchaser can have no indemnity. 14 Ohio, 414; 3 Ohio St., 494; 36 N. Y., 677; 2 Paige, 339; 26 How. Pr., 325; 5 Mason, 414; 9 Cal., 181; 4 Burr, 171; 2 Johns. Ch., 519.
    II. “The rule of caveat emptor applies in all its rigor to judicial sales of real property.” Rorer on Judicial Sales, 168, § 459; 14 Md., 153; Mason v. Wait, 4 Scam., 127; Worthington v. McRoberts, 9 Ala., 297; 3 Watts & Serg., 444; 4 Texas, 431; 15 Id., 523; 15 Ill., 295; Hutchins v. Brooks, 31 Miss., 430; 1 La. Ann., 200; 5 Mason, 420; 12 How. U. S., 386; 2 Id., 312; 13 Texas, 322; 15 Id., 523; 4 Conn., 513; 78 Ill., 573; 60 Id., 164; 69 Id., 431; 33 Penn. St., 276; 9 Cal., 181; 26 Am. Rep., p. 38, and cases cited in note.
    “ In this state the rule has been applied to its fullest extent, and has become a rule of property firmly established.” Nowler v. Coit, 1 Ohio, 519; Vattier v. Lytles, Ex. 6 Id., 478; Creps v. Baird, 3 Ohio St., 276; Salmand v. Price, 13 Ohio, 368; Durbin v. Fish, 16 Ohio St., 538; 29 Ohio, 462; 14 Ohio St., 389; 20 Texas, 103; 26 Wend., 169; 22 Texas, 135.
    III. Even if the statements of the assignees, as to the number of acres, were wrongly false and fraudulent, the estate is not liable. Adams’ Eq., 367, and cases cited; 14 Ohio St., 276; 31 Id., 69; 13 Penn., 121; 12 Ohio St., 533; 30 Miss., 148; 15 Texas, 524.
    IY. If there was a mistake, it was that of the purchasers, and they can claim no benefit of a mistake as to what they ought to have known. Byers v. Chapin, 28 Ohio St., 304; Story’s Eq. Jur., §§ 144-147; 4 Johns. Ch., 596 ; 22 Texas, 133; Willard’s Eq. Juris, p. 152; Long v. Warren, 68 N. Y., 426; 13 Wall, 379, Slaughter v. Gerson; 5 Eng. Rep., 847; Griffith v. Jones, Law Reps. 15 Equity Cases, 279.
    V. The land was sold by boundaries and the purchasers got what was within the lines pointed out. See 20 Ohio, 445; 3 Paige, 98; 5 C. E. Green (N. J.), 266; 2 Johns., 37; 15 Id., 471; 1 Call’s Reps., 301; 2 Mumf., 179; 6 Cowen, 706 ; 1 Yerg., 16; 5 Mass., 355; 12 Eng. Rep., 399; Clure v. Lamb, L. R. 10 C. P., 334; Dalton v. Rust, 22 Texas, 135; Vorthy v. Johnston, 8 Geo., 236; 32 Id., 376; Preston v. Fryer, 38 Md. 221;. 6 C. E. Green, 123; 4 Texas, 431; 12 Id., 440; 20 Id., 429; 27 Id., 73; 9 Id., 554.

      Page, Abernethy & Folsom, for defendant in error.
    I. The doctrine of caveat emptor has no application to the case of sales by assignees for the benefit of creditors. Adams v. Hume, 9 Wall, 305; Burrill on Assigments (3 ed.,) § 416; 2 Hovenden on Fraud, 35; Lindeman v. Ingham, 36 Ohio St., 14; Rogers v. McLain, 31 Barb., 305; nor to rules made by the Master in Chancery; Tunno v. Flood, 1 McCord, 121; nor to mortgage and partition sales in equity; Rogers v. McLain, 31 Barb, 305; McGowen v. Wilkins, 1 Paige, 120; Carter v. Clark, 3 Edwards Ch., 428; McDonald v. Hanson, 12 Vesey, 277; Jacobs and Walker, 549; Spring v. Sandford, 7 Paige, 550; Kohler v. Kohler, 2 Edwards Ch. 69; Morris v. Mowatt, 2 Paige, 586.
    II. Courts of equity interfere to give relief where the quantity of land exceeds or falls short of that which is specified in the deed or contract of sale if the sale of the land was by the acre or foot. Morris Canal Co. v. Emmet, 9 Paige, 168; Tarbell v. Bowman, 103 Mass., 341; Pickman v. Trinity Church, 123 Mass., 1; Paine v. Upton, 87 N. Y., 327; Shovel v. Bogan, 2 Eq. Cases Abr., 688; Quesnel v. Woodleaf, 2 Hen. & Munf., 173, Note; Darling v. Osborn, 51 Vt., 148; Whaley v. Elliott, 1 A. K. Marshall, 343; Triplett v. Allen, 26 Gratt., 721; Barnes v. Gregory, (Tenn. 1858) 7 Am. L. Reg., 678; King v. Wilson, 6 Beav., 124; Stockton v. Union Oil Co., 4 West Va., 273.
    III. When a party has been induced to purchase land by the unintentional misrepresentation of the seller as to the quantity included in the boundaries, the deficiency being material, equity will rescind the contract, and this relief will be granted, though the complainant seeks relief on the ground of fraud. Belknap v. Steeley, 2 Durer, 570; Hatch v. Garzo, 7 Tex., 60; 2 Russell, 570; Post v. Leet, 8 Paige, 337; Kent v. Cureaud, 17 Md., 291; Kelly v. Allen, 34 Ala., 663; Ellis v. Hill, 6 Rich., 37; 1 Robinson (Va.), 287; 25 Ind., 489; Earl v. Bryan, Phillips’ Eq. (N. C.), 278; Nelson v. Carrington, 4 Munf., 332; Hundley v. Lyons, 5 Id., 343; Nichols v. Cooper, 2 W. Va., 347; Fall v. McCurdy, 3 Met. (Ky.), 364; Marbury v. Stinestreet, 1 Md., 147.

      This mistake, whatever it was, was adopted by the court and assignees, and carried into all its proceedings.
    If an individual had made a survey of land, and advertised it for sale, and shown the plat and survey to purchasers, and made as many representations as to quantity as the court did in this instance, we think there is no court of equity in the world that would not have' relieved the purchaser from the mistake.
    If it never has been established by the decision of any court that a purchaser of land under a survey made by order of the court, and brought to his notice, may rely upon it as being correct, and as containing the truth, then it is time that such a decision was made, and this court has an opportunity to establish a principle in favor of honesty and justice, and one which will meet the approbation of the average conscience of men. If, on the other hand, the court feels bound to say that a survey made by its own officer, and adopted by the court, cannot be trusted, and that caveat emptor applies in this new class of cases, then the court will take a step backwards, without its being demanded by policy, convenience or justice.
    The sale in this ease was on the personal representation of the assignees that the land had been surveyed by them and found to contain the exact amount of 360^^ acres. These representations were made by showing the plat returned by the surveyor, and his statements thereon as to the quantity.
    If relief is not granted upon the grounds first above stated, the defendants are entitled to it on the ground of mistake. This mistake was brought about by the direct action of the assignees themselves. If, after the matter had gone into their hands, the assignees had proceeded to sell the lands of Stage by the description contained in his deeds, without any survey and any statement as to quantity, it is probable the defendants would be without remedy. But the assignees went further, and surveyed the land, and made the sale by that survey. A further point to be considered by the court is that the probate court adopted the error of the surveyor and assignees, and carried the same through all its proceedings. This amounted to a representation by the surveyor, by the assignees and by the probate court that this tract of land contained the exact quantity of 360^j- acres.
    Would not any man living, except, perhaps, some lawyers, have relied upon these representations, and believed that if they were not true he would be entitled to relief?
    Will a court of equity lend its aid to sanction and ratify an error which the court has committed ? For, taking the ground that this was a judicial sale, it may be confidently claimed that but for the action of the court itself this mistake would not have occurred, and the defendants would not have been deprived so unjustly of their money. See Morris v. Mowatt, 2 Paige, 586.
    If the court intended to plant itself on the doctrine of caveat emptor, or if the assignees intended to shield themselves behind that doctrine, they should have sold the land by the description contained in Stage’s deed. They should not have meddled in this matter by making a survey, and undertaking to furnish purchasers with a correct survey and statement of the exact quantity of land. We know of no law which required them to make that survey. They volunteered to do it, and to bring it before the public, and to make, as it were, personal representations that it was correct.
    What hardship is there in requiring the purchaser to pay for the exact quantity of land which the estate owned, and no more. The estate loses nothing, and the purchaser is not defrauded by such a course. If it was for the interest of the creditors that a survey should be made of the lands previous to a sale, it is for the interest of all creditors that such sales should be conducted with fairness and honesty.
    Harrison, Olds Marsh in reply,
    made same points as their co-counsel and commented on authorities cited by counsel for defendant.
   Nash, J.

We think it is reasonably certain that at the. time the sale took place, the assignees and Stein and Dresbacb, the purchasers, supposed that the premises sold contained three hundred and sixty and acres, and were without knowledge as to the deficiency of forty acres. Can this mistake be corrected in proceedings by the assignees to foreclose the mortgages given to secure the payment of the purchase money ?

To determine this, question we must first ascertain the character of the sale. It was conducted under section 5 of the act regulating the mode of administering assignments for the benefit of creditors. [58 Ohio Laws, 105.] The land had been surveyed, appraised and offered at public sale, but had not been sold for want of bidders. All these things were done under the supervision of the probate court and in the manner provided by the statute. Then application was made to the probate court for an order to sell at private sale. The court exercising a power conferred by section 5, above referred to, and being satisfied that it would be for the advantage of the creditors of the assignors, made the order. The assignees then sold the land to Stein and Dresbach, upon the terms and under the limitations authorized by the . court. The sale was reported to the court, confirmed by the court, deeds ordered by the court and made and delivered to the purchasers in pursuance of such order. In short the assignees acted as the agents of-the court in selling the land and simply obeyed its orders, made in accordance with powers conferred by the statute regulating assignments for the benefit of creditors. This was a judicial sale — a distinguishing feature of which is that it must be confirmed by the court before it will be complete. Freeman on Void Judicial Sales, 14; 1 Bouvier’s Law Dictionary, 767; Rorer on Judicial Sales, chap. 1, p. 1, and the authorities therein cited.

As this was a judicial sale, we are of opinion that in an action by the assignees against the purchasers to foreclose the mortgage given to secure the purchase money, the purchasers cannot be made whole as to the mistake of forty acres by being given a credit of $2,000. Stein and Dresbach were charged with the duty of ascertaining for themselves the character, condition and amount of the property. Mechanics S. & B. L. Association v. O' Conner, 29 Ohio St. 651. This could have been easily done. The surveyor employed by the assignees to subdivide and plat the land made correct returns of the length of the boundary lines, and if the purchasers had made a computation from these the mistake now complained of would have been discovered. The defendants before giving their mortgages and before the sale was completed, employed a surveyor for the purpose of dividing this parcel of land into two equal parts. This he attempted to do. From these circumstances it would seem that nothing less than great carelessness could have prevented them from discovering this error.

If the purchasers had sought relief by resisting the confirmation of the sale and at a time when all parties could have been restored to their original position, it should have been granted. They do not now ask to have the original contract rescinded. It is impossible in this action to give the defendants any relief. Okill v. Whittaker, 2 Phillips Ch. Reps., 338.

The cases under consideration were in the district court on appeal. That court without making any finding upon the facts, reserved the cases upon the law and the facts to this court. We render the decree in each case which the district court should have rendered and in favor of the plaintiffs.

Decree accordingly.


text:
    Bonewitz vs. Van Wert County Bank.
    1. In an action by a creditor of an insolvent corporation to enforce the personal liability of its stockholders, where the stockholders were not ail before the court, and it did not appear that those not served with process could not have been served, it was error to assess upon the stockholders served the whole amount of the indebtedness of the corporation.
    2. In such action it was error to give judgment for some of the stockholders releasing them from assessment, upon the finding that they did not own stock at the time the liability sought to be enforced accrued, without finding further that the stock held by these defendants had not been sold by the corporation prior to the time such liability accrued.
    Error to the District Court of Van Wert County.

      W. J. Beers, for plaintiff in error.

      I. iV". Alexander, for defendant in error.
   McCauley, J.

The action in the common pleas was brought by the Van Wert County Bank against the plaintiff in error and others as stockholders in the Van Wert Woolen Mills, a corporation. The petition averred amongst other things, that the woolen mills was indebted to the plaintiff by judgment, that it was insolvent, and that the plaintiff in error and others were stockholders in the corporation and prayed for a finding of the indebtedness of the corporation, and that an assessment be made upon- the stockholders to pay and discharge this indebtedness.

The return of the summons issued in the case shows that the persons mentioned in the petition as stockholders were all served but two, L. W. Moss and J. R. Kling, and as to them the return is silent, and it does not appear that they were in any way brought before the court. Two of the defendants filed answers setting up claims against the corporation. The amounts owing by the corporation to the bank and to the defendants who set up their claims were found by the court, and this amount exceeded the amount of stock alleged to have been owned by all the stockholders who were before the court.

Judgment was thereupon given for the plaintiff and the defendants who set up their claims, against the stockholders who had been served with summons, for a sum equal to the full amount of stock owned by each of them. The court also found that two of the defendants, who were stockholders when the suit was commenced, were not stockholders when the indebtedness accrued which was sought to be enforced in the action, and upon this finding gave judgment for these two defendants, that they were not liable to assessment.

Upon this record there are two errors:

In an action of this kind all the owners of stock are necessary parties, Rev. Stats, § 3260 ; Wright v. McCormick, 17 Ohio St., 86; Winsted v. Buskirk, Id., 113; Brown v. Hitchcock, 36 Id., 667; Wheeler v. Faurot, 37 Id., 26. The defendants Kling and Moss, according to the statements of the petition, were the owners of about one-fourth of the whole stock of the corporation, and without showing that these defendants could not have been served with process, and made to bear, their share of the burden, the whole indebtedness of the corporation is assessed upon the remaining stockholders.'

The court in the decree finds that Kling and Moss were not residents of Ohio. Upon what averment or in what other way this finding was made is impossible to determine, as it was not averred in any pleading in the case, and the record shows that the decree was taken on failure to answer by any of the defendants, except the two who set up claims. But the finding that they were not residents of Ohio was not conclusive of the fact that they' could not have been served with process in the action. The return of the summons being silent as to these defendants, did not show that they could not have been served. In proceeding to give judgment against the defendants properly before the court, without conclusive proof by the return of the sheriff, and in fact, that these defendants were beyond the process of the court, was error.-

The court found that the defendants Lewis G. Schumm and O. P. Bonewitz were not the owners of stock at the time the indebtedness to the plaintiff accrued, and thereupon gave judgment for them, that they were not liable to assessment as other stockholders were. The petition averred that they were stockholders at the commencement of the action. And no denial of this averment was made by answer or otherwise. The finding- that they were not the owners of stock at the time the debt to the plaintiff accrued did not authorize a judgment for these defendants. If the finding had been, that the stock they held when the action was commenced had not been sold by the corporation until after the debt of the plaintiff had accrued, the judgment would have been proper. If the stock held by these defendants had, before the debt accrued to the plaintiff, been sold by the corporation, and they afterwards became the owners of it, they would be primarily liable to the creditors of the corporation. Brown v. Hitchcock, 36 Ohio St., 667.

Judgment reversed.