author: McIlvaine, J.

text:
    Hughes v. Railway Company.
    1. In respect to the liability of an employer, for the negligence or misconduct of an employee, whether agent, servant, or independent contractor, the law makes no distinction between natural persons and corporations.
    2. A corporation organized for the purpose of constructing and operating a railroad, having acquired its right of way by the exercise of the power of eminent domain, or otherwise, may contract with another person for the construction of the whole or any part of the road, without retaining the right to control the mode or manner of doing the work; and in such case -the corporation is not liable to third persons for an injury resulting from the carelessness or willful act of the contractor.
    3. But if the corporation retain control over the mode and manner of doing the work, the relation of independent contractor does not exist, and the employer is liable for an injury to third persons from the carelessness or willful wrong of the contractor, while engaged in the performance of the work.
    4. A right reserved in the contract, on the part of the railroad company, to direct as to the quantity of work to be done, or the condition of the work when completed, is not a right to control the mode or manner of doing the work, within the rule above stated.
    5. When an employer retains control over the mode and manner of doing a specified portion of the work only, and an injury results to a third person from the doing of some other portions of the work, the contractor alone is liable.
    6. The rule of non-liability on the part of the employer for the wrong of the contractor, applies to contracts in respect to real estate as well as movable property, except, that owners of real estate cannot relieve themselves from liability, through the intervention of a contractor, for the erection of a nuisance; nor for an injury to third persons, necessarily or naturally resulting from doing the work in the manner it was contracted to be done.
    Error to the Superior Court of Cincinnati.
    Mrs. Hughes, her husband joining, brought the original action against The Cincinnati & Springfield Railway Company, for that, in constructing its railroad through her lands, the defendant had wrongfully piled large quantities of waste dirt upon her arable lands, not embraced within the right of way, whereby the lands so covered with the waste dirt became untillable and wholly worthless, to her great damage, &c.
    An issue of fact having been joined, a jury was empanel-led and the plaintiff offered testimony. After the plaintiff closed her testimony, the court, on motion of defendant, directed the jury to return a verdict for defendant, which was done accordingly. After verdict, a motion for a new trial was made by plaintiff, which the court overruled and rendered judgment for defendant. A bill of exceptions, containing all the testimony, was filed. This judgment at special term was affirmed at general term of the superior court of Cincinnati.

      Follett (& Dawson and J. M. Spencer, for plaintiffs in error, claimed:
    First. That defendant retained control over the mode and manner of doing the work, and that the contractors were, therefore, not independent contractors. Cincinnati v. Stone, 5 Ohio St. 39; Tiffin v. McCormack, 34 Ohio St. 638 ; Carman v. Railroad Co., 4 Ohio St. 414; Railroad Co. v. Hanning, 15 Wallace, 649; St. Paul v. Seitz, 3 Minn. 297; Foy v. Davidson, 13 Minn. 523; Clapp v. Kemp, 122 Mass. 481; Kimball v. Cushman, 103 Mass. 194; Schwartz v. Gilmore, 45 Ill. 455; Cooley on Torts, 546 et seq.

    Second. That if the injury had been committed by independent contractors the defendant would, nevertheless, be liable, because,
    I. It cannot delegate to others the responsibility for the proper performance of that work which it alone was authorized by law to do. It took the privileges conferí ed upon it cum onere.

    It can not delegate to others the responsibility for the proper performance of that work which it alone was authorized by law to do. When the legislature gives a railway corporation the right to take the land of citizens and build its railway thereon, without their consent, it confers a dangerous and extensive authority, and it cannot be implied that the recipient of such power may re-delegate it, or shift upon others the responsibility for its proper exercise. The acts of the contractors’ workmen were the acts of defendant. Except for defendant’s charter, those workmen would have been trespassers on plaintiff’s land. They were doing work which defendant alone was authorized to do. They were there in defendant’s right and exercising defendant’s corporate functions. Railroad Co. v. Baxter, 22 Vt. 365 ; Bliss v. Hosmer, 15 Ohio, 45; Clark v. Washington, 12 Wheat. 52; Lowell v. Railroad Co., 23 Pick. 24; Hilliard v. Richardson, 3 Gray, 366; Stone v. Railroad Co., 19 N. H. 427 ; Veazie v. Railroad Co., 49 Me. 119 ; Detroit v. Corey, 9 Mich. 165 ; Darmstaetter v. Moynahan, 27 Mich. 188; 20 Ill. 385; 15 Ill. 72; 14 Ill. 85; 1 Redfield on Railways, 245; 1 Parsons on Contracts, 105 ; Shearman & Redfield on Neg. 13, § 15 ; 10 Ohio, 160; 13 How. (U. S.) 307; 50 Texas, 77.
    II. The owner or possessor of fixed property is responsible that it be so used, even by his independent contractors, as that others shall receive no injury. Defendant was in possession of the land embraced in its right of way. Samyn v. McClosky, 2 Ohio St. 536. The injury to plaintiff’s land was a nuisance. Defendant had ample power to prevent the injury. This doctrine is the only inference from Carman v. Railroad Company, 4 Ohio St. 415. It is also found in Clark v. Fry, 8 Ohio St. 383, and in Tiffin v. McCormack, 34 Ohio St. 638; Hay v. Cohoes Co., 2 N. Y. 159; 2 Metc. 353 ; 15 Pick. 297; 30 Ind. 53; 8 Pick. 22; 2 Duvall (Ky.) 137; 10 Iredell, 554; Cooley on Torts, 547. We refer also to Althorf v. Wolfe, 22 N. Y. 355; Loses v. Buchanan, 51 N. Y. 479; Homan v. Stanley, 66 Penn. St. 465; Stevens v. L. M. R. R. Co., 20 Ohio, 431; Railroad Company v. Keary, 3 Ohio St. 206; Shipley v. Fifty Associates, 101 Mass. 251.
    III. Where injury results directly from the acts which the contractor is authorized, or permitted, to do, the person who employs the contractor and authorized, or permits, him to do those acts is liable to the injured party. Carman v. Railroad, 4 Ohio St. 399; Clark v. Fry, 8 Ohio St. 358; Tiffin v. McCormack, 34 Ohio St. 638; Cincinnati v. Stone, 5 Ohio St. 38; Chicago v. Robbins, 2 Black, 418; Storrs v. Utica, 17 N. Y. 104; Congreve v. Smith, 18 N. Y. 79; Sewall v. St.

      Paul, 20 Minn. 511; Joliet v. Howard, 86 Ill. 110; Chicago v. Dermody, 61 Ill. 481; Chicago v. Joney, 60 Ill. 383; Hole v. Sittingbourne & Sheerness Railway, 6 Hurls. & N. 488; Ellis v. Sheffield Cas Company, 75 Eng. Com. Law, 766, s. c., 2 E. & B. 767; Randleson v. Murray, 35 E. C. L. 342 ; Gray v. Pullen, 117 E. C. L. 970; Robbins v. Chicago, 4 Wall. 657; Water Co. v. Ware, 16 Wall. 576: Rato v. The Minn. Valley R. R. Co., 13 Minn. 442.

      Matthews db Shoemaker, for defendant in error:
    Tlie right to build, own, manage, &c., a railroad, is not, of necessity, of a corporate character or dependent upon corporate rights, and may be assignable or transferable. Pierce v. Emery, 32 N. II. 486 ; Hall v. Sullivan, 21 Law Rep. 138; Howe v. Freemen, 14 Gray, 566; Shaw v. R. R. Co., 5 Gray, 162; Bank v. Edgerton, 30 Vt. 182 ; 9 Watts & S. 27 ; 12 Ohio St. 372 ; Angelí & Ames on Corp. § 191. The cases in 23 Pick. 24; 19 N. H. 427, and 14 Ill. 85, are reviewed, modified and limited, if not substantially reversed. Hilliard v. Richardson, 3 Gray, 366. The second proposition of plaintiff in error is untenable. When a person lets out work to another to be done by him, such person to furnish the labor and the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant; and the contractee is not liable for the negligence or improper direction of the contractor. Wood on M. & S. § 311; Hobbitt v. Railway, 4 Exch. 256; Allen v. Hayward, 8 Ad. & El. 960; Milligan v. Wedge, 12 Ad. & El. 737; Sherman & Red. on Neg. § 495; 4 Ohio St. 399; 2 Ohio St. 536; 5 Ohio St. 38; 8 Ohio St. 358; 34 Ohio St. 63S ; 1 Disney, 327, and cases cited. The only exceptions to the above mentioned doctrine are, first, where the work performed necessarily creates a nuisance; second, where the contractee has directed the very thing to be done which produces the damages; or, third, where the contractee has retained control, not only over the work itself, but over the instrument of its performance so that he may not only order what may be done, but the mode and manner of its accomplishment. Wood on Master and Servant, § 313; Addison on Torts, 205, 413, 414; Wharton on Negligence, § 185. Counsel for plaintiff in error misconceive the nature of a nuisance, when they apply that term to the acts complained of in this case. The building of the railroad was lawful. The grading and cutting was lawful. They therefore were not nuisances p>er se, nor did they create a nuisance, for being a nuisance and creating a nuisance is the same thing. -Was it the necessary result of the cutting that the dirt should be thrown upon the land of the plaintiff? No evidence shows that. One person may, we presume, by the use of his real property create a nuisance on the land of another, for instance, by fouling a stream, but he does not do it when he throws dirt into it; that is mere trespass. The exception is discussed and illustrated in Vanderpool v. Husson, 28 Barb. 196; Mathary v. Wolf, 2 Duv. (Ky.) 137; Storrs v. Utica, 17 N. Y. 591 ; Gilbert v. Beach, 4 Duer, 423. The fallacy of the attempted application of the propositions of plaintiff in error to this case,will be seen by a mere cursory glance at the following authorities. Eaton v. European R. R. Co., 59 Me. 520 ; Peachey v. Rowland, 13 C. B. 187 ; Overton v. Freeman, 11 C. B. 187; Clark v. Vt. & Cam. R. R. Co., 28 Vt. 103; Powlet v. R. & W. R. R. Co., 28 Vt. 297; Scott v. Mayor, etc., 38 Eng. L. & Eq. 477; Steele v. Se. Railway Co., 32 Eng. L. & Eq. 366 ; Hilliard v. Richardson, 3 Gray, 349; Conners v. Hennesy, 112 Mass. 96; Gorham, v. Gross, 125 Mass. 232, 240 ; Scammon v. Chicago, 25 Ill. 424; Pfau v. Williamson, 63 Ill. 16; Hale v. Johnson, 80 Ill. 185; Kepperly v. Ramsden, 83 Ill. 354; Young v. R. R. Co., 30 Barb. 229; Guff v. N. & N. Y. R. R. Co., 6 Vroom, 17; Panter v. Mayor, etc., 46 Pa. St. 213; Hunt v. Penn. R. R. Co., 51 Pa. St. 475; Reed v. Alleghany, 79 Pa. St. 300; Wray v. Evans, 80 Pa. St. 102 ; Berry v. St. Louis, 17 Mo. 121.
   McIlvaine, J.

Tne record shows that in the year 1871, the Cincinnati and Springfield Railway Company, having ac: quired a right of way, one hundred feet wide, through the lands of plaintiff and others, entered into a contract with Snell Denton & Co., for the construction of its railroad through said premises, as follows:

“ These articles of agreement, made and concluded this 19th day of May, in the year of our Lord, one thousand eight hundred and seventy-one, by and between Nixon Denton, E. II. Williams, Abner Taylor, James Alien, Thomas Snell, James T. Snell, as Snell, Denton & Co., of the first part; and the Cincinnati and Springfield Eailway Company, of the second party
“ Witness: That for and in consideration of the payments and covenants hereinafter mentioned, to be made and performed by said railroad company, the said party of the first part doth hereby covenant and agree to construct and finish, in the most substantial and workmanlike manner, to the satisfaction and acceptance of the engineer of the Cincinnati and Springfield Eailway Company, all the grubbing and clearing, excavation, embankment, on sections number one (1) to twenty four (24), both inclusive, of the Cincinnati and Springfield Eailway, between Cincinnati and Dayton, the said work to be done as described in the following specifications, and agreeably to the directions, from time to time, of the said engineer or his assistants, and finished on or before the first day of February, in the year one thousand eight hundred and seventy-two:
“ Grubbing and clearing. When the surface of the ground on which embankments are to be built, is not more than one (1) foot below the grade line, and in all cases where excavations are to be made, the trees, stumps, and saplings on the entire ground over which excavations will extend, shall be grubbed. All stumps, trees and saplings not required to be grubbed, and standing on ground to be occupied by embankments, shall be chopped down close to the surface of the ground, and so as to be not less than one foot below grade. The entire ground on which embankments or excavations are to be made, and such additional width, not exceeding fifty feet on each side, as the engineer of the railroad may direct, shall be cleared of all trees, logs, brush and other perishable matter, and all fences shall be removed to or beyond the limits of the right of way of the company.' The fences, buildings, timber and wood on tbe line of tbe railroad are the property of the railroad company or of the land owners, and may be taken down and removed by the owner within a reasonable time, and all such as shall not be so removed shall be cleared off by the contractor and piled up and preserved for the use of the owner, on the direction of the engineer. The contract prices will be understood as covering and including all grubbing and clearing necessary or required at borrowing pits.
“ Earth work. The grading will generally be for a single-track railroad, with excavations twenty-two feet wide at grade line, and embankments sixteen feet wide at grade line, but increased width shall be made for passing places or side-tracks, at such places as the engineer may direct. Grade line is eighteen inches below the bight at which the tops of the cross-ties are to be placed for the railroad track on the grade when finished.
“ Excavation, will include all cuttings for the road-bed, for ditches and drains, for changing turnpike or common roads- and channels of streams and all other cuttings necessary to or connected with the railroad, and which shall be directed by the engineer. Excavation will be measured in the prism of the road-bed while the material is in place. Material wasted after being excavated, and not placed in embankments, will be' paid for as excavation only. Excavations will be of such width and depth, and with side slopes of such inclination as the engineer may direct. Earth taken from roadway excavations, and hauled three hundred feet and less, and placed into roadway embankments, will be estimated as excavations only, and for all earth from roadway excavations, hauled three hundred feet and over, and placed into roadway embankments, the contracts will specify the price to be paid per cubic yard for each one hundred feet haul over three hundred feet, in addition to the price for roadway excavations; but no other measurements or allowance will be made for roadway embankments made from earth taken from roadway excavations. Earth from roadway excavations to be hauled into embankments, as far as the engineer directs, not exceeding two thousand feet. In all cases where earth from roadway excavations is wasted or carried into spoil bank, a space of three feet must be left between the top slope of tlie excavations and such spoil banks, and the earth so wasted must be so placed, and spoil banks so formed as to slope backward from the road-bed excavation in such manner as the engineer shall direct, and so as to carry all surface water from the road-bed. Earth from roadway excavations, wasted or carried into spoil banks, will be estimated as excavations only, and no allowance will be made for haul. Rock excavations will be fourteen feet in width at grade, with such side slopes as the engineer shall direct. All rock taken from the cuts shall be piled up along side of cuts, as directed by the engineer, and be the property of the railway company.
“ Excavations will be classified as solid rock, loose rock, and earth excavations.
Solid rock excavation, will include all sand rock or lime rock which may be found in place, or which, if not so found, shall be in masses or blocks, each containing over one cubic yard; and also, all the interlying stratified date between the different strata or limestone in place.
“Loose-rock excavation, will include all detached rocks containing over one cubic foot each.
“ Earth excavation, will include all material which does not specifically belong to rock excavation.
“ Embankments for' road-bed of railroad, for common roads, road-crossings, bridge-approaches, guard-banks, and embankments of whatsoever kind required to construct, or for whatsoever purpose incidental to or connected with the construction of the railroad, and which may be required by the engineer in charge, shall be built at his direction. Embankments shall, as far as practicable, be built of the material taken from the cuts. They shall be commenced at bottom of full width, and carried up with the required slope. The form and dimensions of embankments shall conform to the stakes and directions of the engineer, and embankments which will be required about masonry shall be built at such time, and in such manner, and of such material, as the engineer shall direct. Embankments shall be built of such bight and width as will, in the opinion of the engineer, leave them of full size when they shall have become fully settled and compact. Embank-merits made from borrowed earth will be measured in the prism of the road-bed, and in no case, unless specially directed by the chief engineer, will boi-rowpits be measured. Borrowed earth to form embankments will be taken from such place as may be selected by the engineer, and the excavation made in,, borrow pits shall be so shaped and worked as not to unnecessarily injure or disfigure the lands on which they are made.. Should the engineer require borrowed earth to be hauled over three hundred feet into embankments, then the haul over three hundred feet to be paid for at the contract price for haul. All borrowing ditches, from which earth is taken to form- embankments, must be so worked and shaped as to leave good, continuous and uniform ditches, to afford free passage to all water along and from said ditches. The inner side of all such ditches must have same slope as roadway embankments ; a berme of two feet where embankments are five feet and less, and three feet where embankments are over five feet, must in all cases be left between the outer toe or base of embankment and the inner angle of side or borrowing ditches. Embankments shall be built in layers of not more than three feet vertical bight extending across the bank for its full width. In case where temporary trestling is required, in order to grade the track a's first laid over, or from masonry or streams of uneven ground, such trestling shall be built by the contractors without charge to the company. And in all cases the contract price for work will be understood to cover and include all materials, labor and expense required for the work, and everything required for or incidental to the carrying on or completion of the same.
“ Whenever the route of the railroad is traversed by public or private roads, commodious passing-places must be kept open and in safe condition for use. And in passing through farms or lots, the contractor must also keep up, at his own expense, such fences as will be necessary for the preservation of the property and the trees, grass, and other crops.
“ The work to be commenced as soon as the railway company acquire title to the lands upon which the work is to be done.
No charge shall be made bv the contractor for hindrance or delay, from any cause, in the progress of the work or any portion thereof.
“ All of the work shall be done in a neat, substantial and workmanlike manner, and at the time of the acceptance of any part of it, the same shall be neatly trimmed, and in all respects fully completed, to the satisfaction of the engineer in charge.
“ And the said Cincinnati and Springfield Eailway Company doth promise and agree to pay to the said party of the first part, for completing this contract as follows, viz.:
“ For grubbing and clearing, ten (10) dollars per station of one hundred feet, for work actually done.
“ For earth excavation, per cubic yard, nineteen (19) cents.
“ For rock excavation, per cubic yard: Loose rock excavation, seventy (70) cents; solid rock excavation, one dollar and ten cents ($1.10).
“For haul, per cubic yard, per one hundred feet after first three hundred feet, one and one-half (1 1-2) cents.
“ For embankment from borrowed earth, per cubic yard, twenty '(20) cents.
“ And for all work for which no price shall be fixed in this contract, such price as shall be agreed on by the parties, or, if the parties shall not be able to agree, such price as the engineer shall deem reasonable and fair.
“ On or soon after the first day of each month, during the progress of this work, an estimate shall be made of the relative value of the work done, to be judged of by the engineer; and ninety per centum of .the amount of said estimate shall be paid to the party of the first part, by the twelfth of the month is which said estimate shall be made; and when all the work embraced in this contract is completed, agreeably to the specifications, and in accordance with the directions and to the satisfaction and acceptance of the engineer of said railroad company, there shall be a final estimate made by said engineer, of the quantity, quality, character, and.value of said work, according to the terms of this agreement; and within ten days after the date of such estimate, the balance appearing due to the party of the first part shall be paid to the said first party, upon the said party giving a release to the said railroad company from all claims and demands whatsoever, growing in any manner out of this agreement; and when any three (3) consecutive sections thereof shall be fully finished as above, the same shall be accepted by said company.
“ It is further covenanted and agreed, between the said parties, that said party of the first part shall give personal attention and superintendence to the work embraced in this contract.
The said party of the first part further agrees not to keep, or suffer to be kept or used, ardent spirits on the work, or in any house or tenement built or occupied by said party, or by the workmen in the employment or under the control of said party, on or near said road ; and agrees to discharge from his employment, and from the work, any person who is guilty of a breach of this regulation.
“ It is further agreed and understood, that the work embraced in this contract shall be commenced within twenty-five (25) days (or as soon as the right of way is obtained) from this date, and prosecuted with such force as the engineer may deem adequate to its completion within the time specified ; and if at any time the said party of the first part shall refuse or neglect to prosecute the work, and every part of it, with a force sufficient in the opinion of the said engineer to secure its completion within the time specified in this agreement, then and in that case, the engineer, or such other agent as he may designate, may, on ten days’ notice, proceed to take possession of, and use in completing the work or any part of it, such tools, machinery, tenements and other buildings and supplies or materials as may be in the work, or prepared for it, and belonging to the party of the first part; to purchase such additional tools, material, machinery, buildings and supplies as he may deem necessary or proper ; and to employ shell number of workmen laborers, teams and overseers as may in the opinion of the said engineer be necessary to insure the completion of the work, within the time hereinbefore limited, or as soon thereafter as may be practicable, at such prices and wages as he may find it necessary or expedient to give; pay for all such purchases and teams, and all persons so employed, and charge over the amount so paid to the party of the first ¡Dart, as for so much money paid to said party of the first part on this contract. And for failure to prosecute the work with an adequate force, for non-compliance with his directions in regard to the manner of performing it, or for any other omission or neglect of the requirements of this agreement and specifications, on the part of the party of the first part, or in case the party of the first part shall do, or persist in doing, any portion of the work embraced in this contract, in an unfaithful and unworkmanlike manner, then, for any such omission or neglect, or failure, or for such unfaithful or unskilled performance, the engineer may, at his discretion, declare this contract, or any portion, or section embraced in it, forfeited — which declaration of forfeiture shall exonerate the said railroad company from all obligations and liabilities arising under this contract, so far as they relate to the portion or section declared forfeited, the same as if this agreement had never been made; and the reserved per centage upon work done by the party of the first part, on the forfeited portion or section, may be retained forever by the said railroad company. The masonry on the sections embraced in this section shall be done, or other provisions therefor made, in time by the railroad company not to delay the work.
“ And it is mutually agreed, and distinctly understood, that the decision of the said chief engineer shall be final and conclusive in any dispute which may arise between the parties to this* agreement, relative to or touching the same, and each and every of said parties does hereby waive any right of action, suit or suits, or other remedy, in law or otherwise, by virtue of said covenants; so that the decision of the said engineer shall, in the nature of an award, be final and conclusive on the rights and claims of said parties.
“In witness whereof, the said Cincinnati and Springfield Railway Company lias, by its president, executed and signed the same, and caused the seal of said company to be affixed; and the said Snell, Denton & Co. have hereunto set their hands and seals the day and year first above written in duplicate. Signed,
“Snell, Denton & Co.,
The C. & S. Railway Company,
Witness: By R. M. Shoemaker, President.”

Snell, Denton & Co. entered on the performance of this contract, and, in making an excavation within the right of way through plaintiff’s lands, removed and deposited the waste dirt on lands of the plaintiff not embraced in the right of way, to her damage, as complained of in her petition.

The main question before us is, was the railway company responsible for the wrongful act of Snell, Denton & Co. ?

The plaintiff’s claim is stated by counsel thus:

“We claim for plaintiffs:
“ First. That defendant retained control over the mode and manner of doing the work and that the contractors were, there fore, not independent contractors.
“ Second. That if the injury had been committed by independent contractors the defendant would, nevertheless, be liable, because,
“ I. It cannot delegate to others the responsibility for the proper performance of that work which it alone was authorized by law to do. It took the privileges conferred upon it cum on ere.
“ II. The owner or possessor of fixed property is responsible that it be so used, even by his independent contractors, as that others shall receive no injury.
“ III. Where injury results directly from the acts which the contractor is authorized, or permitted, to do, the person who employs the contractor and authorizes, or permits, him to do these acts is liable to the injured party.”

The first claim, in substance, is that Snell, Denton & Co. were the servants of the railway company, and therefore the doctrine of respondeat superior applies. Whether the liability contended for be strictly within the rule of respondeat superior, or an exception to the rule of non-liability of an employer for the misconduct of a contractor, the law is certainly well stated in Cincinnati v. Stone, 5 Ohio St. 38, that “ where the employer retains control and direction over, the mode and manner of doing ■ the work, and an injury results from the negligence or misconduct of the contractor, or his servant or agent, the employer is placed under a liability equal and similar to that which exists in the ordinary case of principal and agent.”

The fact assumed, however, in this claim, depends wholly on the contract above set forth, and after a careful consideration of all its terms, wo are unanimously of opinion, that the railway company had no control or direction over that part of the work which resulted in damage to the plaintiff. True, the contract subjects Snell, Denton & Co., in a score, or more, of particulars, to the direction of the company’s engineer. But, with one exception, the right to direct thus reserved to the engineer relates only to the quantity of work to be done in the construction of the road, or to the condition of the work when completed, and not to the mode or manner of doing the work. The retaining of such power of control or direction does not bring the case within the reason or spirit of the rule in Cincinnati v. Stone. The principle of that rule undoubtedly is, that the right of control retained by the employer must be such as devolves upon him the duty to protect third persons from injury, and hence he cannot be heard to say that he did not direct or assent to the mode and manner in which it -was done, if injury results.

. Much stress is laid upon the following clause, found in the specifications concerning excavations: “Earth from roadway excavations to be hauled into embankments as far as the engineer directs not exceeding two thousand feet. In all cases where earth from roadway excavations is wasted or carried into spoilbanks, a space of three feet must be left between the top slope of the excavation and such spoilbanks, and the earth so wasted must be so placed and spoilbanks so formed as to slope backward from the roadbed excavation in such manner as the engineer shall direct so as to carry all surface water from the roadbed.”

The power of the engineer to direct, under this clause, is limited to cases where waste earth from an excavation is thrown out over the top slope of the excavation, into spoil-banks, and as to the manner in which such spoil-banks shall be made to slope backward from the excavation.

Conceding that the railway company would be liable for an injury from the mode and manner in which such spoil-banks might be constructed, under the direction, or without the direction of the engineer, it is not claimed that the plaintiff was so injured. In wasting the earth, which resulted in plaintiff’s injury, the contractors were acting on their own responsibility without any control or right of control on the part of the engineer, as or to the mode or manner of doing the work.

Again, by the terms of the contract, Snell, Denton & Co., agreed “to do the work as described in the specifications and agreebly to the direction, from time to time, of the engineer or his assistants.” By these terms, it is contended, that the railway company reserved a general control over the mode and manner of doing the work. When the whole contract is considered, it is quite clear that “ the directions of the engineer or his assistants ” here referred to, are those only which are specially named in the specifications.

We find no provision in the contract whereby the railroad company reserved any control or right to direct the mode and manner of wasting the earth which was cast upon plaintiff’s lands by Snell, Denton & Co. Neither do we find that the company assumed, in any manner, to control the contractors in respect to such work. Hence the liability of defendant, on this ground, is not found in the proper construction of this contract.

The second claim of plaintiff is, that if the injury had been committed by independent contractors, the defendant would nevertheless be liable.

The general rule, that employers are not liable for the negligence or misconduct of independent contractors, is not disputed. It is contended, however, that the rule does not apply in cases of contracts with respect to real property. This contention cannot be maintained. The rule applies to contracts in respect to real as well as personal property. It is, however, in respect to real estate, subject to these exceptions. The employer cannot relieve himself from liability, by contracting with, others for the performance of work, where the necessary or probable effect -of the performance of the work would injure third persons; nor can he relieve himself of duties resting upon him as the owner of real estate not to do or suffer to be done upon it, by others, that which would constitute a nuisance.1 Cooley on Torts, 547. The railroad constructed on defendant’s right of way is not complained of as a nuisance; nor does it appear that the wasting of earth on plaintiffs land was a necessary or probable consequence of the construction of the road. Personally I think, under this contract, the defendant was bound to furnish space for the deposit of waste material, and, if it did not, it might be inferred that it assented to or procured the contractors to cast it upon plaintiff’s land; but for aught that appears in this record, ample space was provided, and the act of casting the waste earth on plaintiff’s land was a willful trespass by the contractors of which the railway company had no knowledge, even by its engineer, and to which it in no wise consented.

Again, it is contended that a railroad company cannot delegate to others the responsibility for the proper performance of work which it alone was authorized to do.

The scope of this proposition is not readily perceived. In support of it, it is said in argument, that “when the legislature gives a railway corporation the right to take the land of citizens and build its railway thereon without their consent, it confers a dangerous and extensive authority, and it cannot be implied that the recipient of such power may re-delegate it, or shift the responsibility for its proper exercise. The acts of the contractor’s workmen were the acts of the defendant. Except for defendant’s charter, those workmen would have been trespassers on plaintiff’s land. They were there doing work which the defendant alone was authorized to do. They were then in defendant’s right and exercising defendant’s corporate functions.” This argument is fallacious. These workmen on plaintiff’s land were trespassers, notwithstanding defendant’s charter. The defendant was not authorized to do work there. This work was not the exercise of corporate functions. Undoubtedly, the defendant could not transfer to its contractors the right to be a corporation, or the right of eminent domain, or the right to commit a trespass. If the defendant had sent its contractors upon land, where it had no right to go, for the purpose of building its road, or wasting material, its liability could not be doubted. The question in this case, however, is this: If a railway company by the exercise of its power of eminent domain, acquires all the land necessary to the construction of its road, and sends its contractors to construct its road thereon, is it necessarily liable for a trespass committed by them while engaged upon the work? "We think not. The work of constructing a railroad is not corporate work imless it be done by a corporation through its agents and servants. And a person may contract with a railroad company to construct its road, without becoming its agent or servant.

This proposition therefore resolves itself into a single question, May a railroad corporation, having power to contract as fully as a natural person, in relation to its corporate business, enter into a contract with another person for the construction of its road without retaining control over the mode and manner of doing the work ? We can see no reason to doubt it. Of course any condition imposed upon the right to construct its road must be performed and the company cannot shift its responsibility for the performance. But this is no new principle, nor one applicable to railroad corporations alone. Where a right is possessed by a natural person and a duty is attached to the exercise of the right, such duty must be performed : such natural person cannot relieve himself from liability through the intervention of an independent contractor. So, on the other hand, whore the law exempts a natural person, as employer, from liability for the wrongful act of his contractor it will also, under like circumstances, exempt a corporation, as employer, from liability for the wrongful act of its contractor.

Judgment ajk’med.


source: Caselaw Access Project

author: Johnson, C. J. Doyle, J.,

license: Public Domain

text:
    Bruner v. Briggs.
    1. In an action by one as surviving husband, against the heir of a deceased wife, to recover an estate by the curtesy where the marriage is put in issue, a marriage, in fact, may be established by showing that they lived together and cohabited as husband and wife for a series of years, that they always recognized and treated each other as such, and that they were so treated and reputed in the community and circle in which they moved, although no record evidence was offered, nor the evidence of any witness who saw them married, was given. Such evidence is competent, and its sufficiency to establish the fact of marriage is for the court or jury trying the issue to determine.
    3. That the proviso of section seventeen of an “Act regulating descents and distributions,” as amended (60 Ohio L. 31), is a limitation on the right of a surviving husband to curtesy in his deceased wife’s real es. tate made in favor of her issue or legal representative of such issue by a former marriage. The right to curtesy secured by the general clause of said section, can not be affected or defeated, by showing that the deceased wife left illegitimate issue, who, under section fifteen of said act as amended (64 Ohio L. 105), inherited her estate.
    3. By the terms of said section seventeen as amended, the provision of section fifteen as amended, which provides that, “bastards shall be capable of inheriting or transmitting inheritance from and to the mother .. . in like manner as if born in lawful wedlock.” can not be so construed as to affect the surviving husband’s curtesy in the real estate of his deceased wife in all cases provided for in section seventeen.
    Error to the District court of Scioto county.
    The record discloses the fact, that Joseph Briggs brought his action to recover of Adolph Bruner, the plaintiff in error, possession of certain real estate on the ground that he is the surviving husband of one Martha Briggs, who died in 1871, seized of said real estate, and that as such he is entitled to an estate by the curtesy. Ilis right is put in issue. It appears that Martha Briggs, formerly Martha Ross, was the owner of this land, and by will devised it to her daughter Mary Jane Barnes, and that she, with her husband, conveyed the same by deed in fee, with covenants of general warranty to Bruner, and put. him in possession.

      Bruner had no knowledge of this claim to an estate by the curtesy, until shortly before action commenced, and in good faith made permanent and valuable improvements.
    On the trial there was no record evidence of Briggs’ marriage, nor was there any witness, who saw them married, but evidence was offered, running through a series of years, of cohabitation as husband and wife, of mutual treatment and recognition of each other as such, and of such reputation in the community and in the circle in which they moved.
    It appeared there was no issue of this marriage, and the plaintiff, in order to show that his wife did not leave issue by a former marriage, offered evidence tending to show that said Martha Briggs had never previously been married, and that her daughter Mary Jane was illegitimate.
    The court found, that Briggs was the surviving husband of Martha Ross or Briggs and that the daughter Mary Jane was not'the issue of a former marriage but was illegitimate, and therefore rendered a judgment that the plaintiff was entitled to an estate by the curtesy.
    This was affirmed by the district court.

      Moore c& Newman, for plaintiff in error.

      A. T. Holcomb, for defendant in error.
   Johnson, C. J.

Two questions of fact in this case are presented by the record for determination :

1. Was Joseph Briggs the husband of Martha Briggs at the time of her death ?•
2. Bid Martha Briggs have issue by a former marriage ?

The court below found both these •questions in favor of Briggs, that is, it found he was the surviving husband of Martha Briggs, and that she did not have issue by a former marriage. And as matter of law, it was therefore adjudged that he was entitled to curtesy in his wife’s estate, notwithstanding she left issue, Mary Jane, the grantor of the plaintiff in error.

Two errors are assigned for the reversal of this judgment.

It is claimed that in view of the fact that fhe marriage' is asserted by the alleged husband, and that that relation in fact is essential to liis claim, the evidence offered was insufficient to warrant the court in finding such marriage.

That as matter of law, the deceased wife having left issue, though not by a former marriage, capable of inheriting her estate, that issue, though illegitimate, brought the estate within the scope and meaning of the 17th section of an act regulating the descent and distribution of personal estate,” as amended March 1, 1869 (66 O. L. 21).

1st. As to the bind of proof and its sirfficieney to establish the marriage, in an action to recover possession of an estate by the curtesy.

It is conceded that evidence of cohabitation as husband and wife, of mutual recognition by the parties, as such, and of such reputation in the circle in which they lived, is competent as tending to prove the marriage ; but it is claimed that in a case like this, more positive and direct evidence, such as is required in prosecutions for bigamy, and in actions for criminal conversation, should be required. It is said marriage de jure, is the essential basis of the right infringed in the one case, and is the muniment of title in the other.

It is now too well settled to admit of dispute, that in all civil actions, when the rights to succession of an estate depends on the existence of a marriage, it may be proved by reputation, declarations and conduct of the parties. 2 Greenl. §§ 461, 462; Hubback’s Evidence of Succession, 239-248; Commonwealth v. Hurley, 14 Gray, 411; Gaines v. Rolf, 12 How. (W. S.) 472 ; Scribner on Dower, chap. ix.

2d. Assuming that there was no error in finding as a fact that Briggs was the surviving husband, and that the daughter of the deceased wife was illegitimate, the question of law which arose is, was the daughter, within the terms of the proviso of-the act of 1869, by which the right of the surviving husband to curtesy is defeated when there is issue by a former marriage.

The loth section of the act of 1831 (33 Ohio L. 43), regulating descents and distribution of personal estate, provided: “ That nothing in this act shall be so construed as to affect the right which any person may have to any estate by eurtesy or in dower in any estate of inheritance of any deceased person.” By the 13th section of the same statute: bastards shall be capable of inheriting, or of transmitting inheritance, on the part of the mother, in like manner as if born in lawful wedlock.”

The curtesy under that statute, not to be affected, was that known at common law, which could not become consummate, without birth of issue. By section 17 of the act of 1853, it was provided that, surviving husbands, whether there has been issue born during coverture or not, shall be entitled to the estates of their deceased wives by the curtesy.”

As the law then stood, neither the want of issue of the marriage, nor the existence of children or legal representatives by a former marriage, nor of illegitimate heirs of the deceased wife, defeated the estate by the curtesy.

For reasons of public policy the legislature enlarged the surviving husband’s rights to curtesy in the estate of the deceased wife and extended it to all cases of surviving husbands whether there was issue or not. Neither the act of 1831, nor the act of 1853, nor the amendment of 1869, hereafter to be noticed affected the marital rights of the husband, during coverture, whether it be curtesy expectant growing out of the marriage merely, or curtesy initiate arising from birth of issue.

It is the curtesy of a “ surviving husband ” in the estate of a deceased wife, to which these statutes relate.

By the act of 1846, (1 S. & C. 693 a) this interest of the husband in the estate of the wife during coverture, was exempted from process for the payment of his debts, during the life of the wife, or the life or lives of the' heir or heirs of her body, and all conveyances of such interest during coverture were declared to be void, unless duly executed by both husband and wife as required by the statute regulating the execution and acknowledgment of deeds. By the acts of 1861 (1 Saylor’s Stat. 62) and of 1866 (2 Saylor’s Stat. 947)} the real estate, legal or equitable, belonging to a woman at her marriage, or coming to her during coverture by conveyance, or by purchase with her separate money or means, is made her, separate property and under her sole control, but it is declared that this shall not affect the curtesy of the husband “ in the real property of his wife after her decease.” It thus ■appears to be the fixed policy of the state to preserve the right to curtesy consummate.

Next in chronological order came the act of 1869 (66 Ohio L. 21) which is the re-enactment of the act of 1853 relating to curtesy with this proviso : “ provided however, that if any deceased wife shall leave issue or the legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of such issue or the legal representative of such issue iii her estate, unless it came to her by deed of gift from him, or by devise or deed of gift from his ancestors. These acts show how careful the legislature has been, not only to preserve the surviving husband’s curtesy as it existed at common law, but to enlarge it even when his marital right during coverture is taken away.

Now the claim is, that the loth section as amended (64 O. L. 105) giving bastards capacity to inherit and transmit inheritance on the mother’s side, the same as if born in lawful wedlock, and the 17th section as amended (66 O. L. 21), are statutes in pari materia and must be construed together, and that if this is done-, the proviso to the amended section 17 would read as if the words, issue by a former marriage,” read, “issue capable of inheriting from the deceased wife.” It may well be doubted, if, strictly speaking, the two sections are in pari materia. In a general sense, as relating to the subject of descents and distributions, this may be so, but in a more accurate sense, as relating to the rights of bastards to inherit, and of surviving husbands to curtesy, they are not.

Section 15, being section 13 of the act of 1831, which is prior in point of time, was intended to give to bastards the right to inherit or transmit inheritance on the part of the mother. At that time and until 1853, the husband’s curtesy consummate was the same as at common law, and section 15 of the act of 1831 expressly provided that nothing in the act (which included this provision in favor of bastards), should be ^so construed as to affect this estate by curtesy.

This latter clause is found also in the act of 1853, in the amendment of 1869, and in the revision of the statutes, section 4176.

It expressly takes away from the court the power to give such a construction to the bastardy provision as will affect the surviving husband’s estate by the curtesy. If, therefore, we should give to section 15 of the act of 1853, as amended in 1867, the construction contended for, it would defeat the surviving husband’s estate to curtesy, as expressly given by section 17.

The amended section 17 (66 O. L. 21), gives, in unambiguous terms, curtesy to the surviving husband in all cases, except when the deceased wife left issue or a legal representative of such issue by a former marriage.

It also expressly declares that neither section 15, as amended, nor any other provision of the statute relating to descents and distribution, shall be so construed as to affect this right.

The attention of the legislature as appears, was directed to this question, and it has said in language too plain to be construed, that although bastards" may inherit from the mother, yet this is not to affect the estate by the curtesy.

Again, down to 1869, the husband was entitled to curtesy, though the wife did leave issue by a former marriage, and though she might have left issue not born in lawful wedlock, capable of inheriting, even when the estate came from her former husband or his ancestors, though there was no issue of the last marriage. This was thought to be inequitable, when there were children of a former marriage, and where the estate was not the gift of the surviving husband, or the devise or gift of his ancestors, and so the proviso took away from him the right to curtesy in such cases.

The proviso is a limitation of his right, as it had existed since 1853, indeed as it had always existed, but it is only taken away when there is issue by a former marriage. It must have been in the legislative mind that bastards could inherit and transmit inheritance on the part of the mother. Having this in mind they used a term clearly excluding them from the class of heirs that would defeat the curtesy.

To give the words, “provided, however, if any deceased wife shall leave issue or legal representative of such issue by a former marriage,” the construction contended for would be to eliminate from the statute the significant words, “ by a former marriage,” or it would add to them the additional limitation “ or leaving illegitimate issue.”

This proviso is a limitation or exception to a right conferred by the general provision of the section. Its effect is to be limited to cases clearly falling -within its term.

In Woodbury v. Berry, 18 Ohio St. 462, where the court was convinced that certain words were by mistake omitted in copying the bill before its passage, said : “ But notwithstanding all this, ita lex seripta est, the language as it stands, is clear, explicit and unequivocal. It leaves no room for interpretation for nothing in the language is doubtful. It is our legitimate function to interpret legislation, not to supply omissions.”

Courts must not, even in order to give effect to what they may suppose to be the intention of the legislature, put upon the provisions of a statute a construction not supported by the words, even though the consequences should be to defeat the object of the act. Smith on Stat. Const. 714; Maxwell on Interp. of Stats, p. 2, § 2.

In the case before us we cannot suppose it was intended to put illegitimate issue of the deceased wife on au equality with legitimate, by a former marriage, in their power to defeat the right of a surviving husband to his curtesy ' in an estate which most likely came from the former husband. While bastard issue may justly inherit from their mother as if born in lawful wedlock, there is no apparent reason why they should defeat the curtesy of a surviving husband. The intention of the proviso is manifestly limited tó cases of issue by a former.marriage where the estate did not come to the wife from the husband or his ancestors.

Judgment affirmed..

Doyle, J.,

dissenting. These statutes are in pari materia and should be so read and construed. Section 15 of .the act of ¡March 14, 1853, provided that “ bastards shall be capable of inheriting, or transmitting inheritance on the part of their mother in Mice manner as if they had been born in lawful wedlock.” Certainly this daughter did not inherit the estate of her mother, in like manner as if born in lawful wedlock, if there is carved out of her inheritance an estate by the curtesy which could not be carved out of such inheritance if she was legitimate. S. & C. Stat. 504.

Section 11 of the act of February 11, 1824, contained .substantially the same provision as section 17 of the act of March 14, 1853, the language being bastards shall also be capable of inheriting or of transmitting inheritance, on the part of their mother, in like manner as if they had been lawfully begotten of such mother.” Chase’s Stat. 1313.

This act contained the provision (§ 15) that nothing in it shall be construed to affect the right any person may have as tenant by the curtesy in any estate of inheritance, nor shall the right, of dower claimed by any widow in any estate of inheritance be impaired in any wise whatever.”

This statute, however, created no new right of curtesy or dower, and the provision last mentioned was explanatory, to prevent such a construction of the statute as would impair the common-law right of the husband or wife in .those respects.

The right to curtesy at common law depended upon the birth, alive, of issue of the marriage out of which the estate grew, and was not affected by the birth of children of the mother before such marriage, whether legitimate or illegitimate. Hence the unimportance of that explanatory provision in the statute, as affecting the question in issue.

In the act of 1853, however, the right of the husband was enlarged by dispensing with the necessity of issue born during coverture, as a pre-requisite, to the estate by curtesy. While in the act of March 1, 1869 (66 Ohio L. 21), that right was limited by the provision ‘ ‘ that if any deceased wife shall leave issue or the legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of such issue or the legal representatives of such issue in her estate, unless the estate came to the deceased wife from the surviving husband, or by devise or deed of gift from his ancestors.”

The words “by a former marriage” in section 17 of this statute, and “ in lawful wedlock ” in section 15 of the act of 1853, which remains unchanged, are equivalent. If this daughter was born in lawful wedlock, it would necessarily be of a former wedlock or former marriage.

It was clearly the intention of the legislature to bestow upon the illegitimate child of the mother, in all respects relating to inheritance, the attributes of legitimacy, and to take away from the husband the right to curtesy in the interest of any child of the mother, which, in law or in fact, would be the legitimate heir of such mother, born previous to the coverture of the husband claiming such estate.

McIlvaine, J., concurs in the dissent.


author: Doyle, J.

text:
    Ohio ex rel. v. Moore.
    Under the provisions of section 3030 e of the Revised Statutes, as amended April 18, 1883 (80 Ohio L. 180), the insurance commissioner cannot be compelled to issue his certificate of authority to do business in this state, to a corporation organized under the laws of another state to insure lives upon the assessment plan, where, by the laws of such other slate, Ohio companies organized to do the business contemplated in [ section 3630, Revised Statutes, are not entitled, as of right, to a certificate of authority to do business therein.
    Mandamus.
    The relator, The Mutual Reserve Fund Life Association of New Tork, is a corporation organized under the laws of the state of New Tork. By its certificate of organization it is shown “that the particular business and object of such society is the mutual benefit of ourselves, and all others who may become members of the society, by providing benefits for families, and others dependent upon such members, by means of voluntary contributions to meet exigencies occurring from time to time, and to provide a fund for the common and exclusive benefit of all the members.”
    Its constitution provides: “ Sec. 10. Upon the decease of any member the association shall, within ninety days after receiving satisfactory notice and proof of the same, pay to the beneficiary named on the books of the association, or to his or her assigns or legal representatives as the case may be, the amount to which the same are entitled, according to the terms of the certificate of membership held.”
    By a by-law, it has recited, in substance, the provisions of section 3630 of the Revised Statutes of this state, and declared that in Ohio its business shall be limited to that contemplated by that section. This provision is limited to the state of Ohio, and has reference only to its contemplated business in this state.
    The relator claims the right to do business in this state under the provisions of section 3630, Revised Statutes, and the sections supplementary thereto, and exempt from the requirements contained in section 3604, Revised Statutes. It demanded of the defendant, who is the insurance commissioner of the state, a certificate that it has complied with all the legal requirements and was entitled to transact such business. The defendant refused to issue the same and this proceeding was commenced to compel him to do so by mandamus.

      Keifer <& White, for relator.

      I). A. Hollingsworth, Attorney General, for respondent.
   Doyle, J.

In a proceeding in mandamus to compel an officer to do an act, which, it is claimed, the law enjoins on him as a duty, the existence of all the facts necessary to put him in default must be shown. Cincinnati College v. La Rue, 22 Ohio St. 469 ; State v. Capeller, ante.

Before the relator can have the relief sought, it must show that it has a clear right, under the law, to do business in Ohio, and that defendant wrongfully withholds from it his certificate that it has complied with the law on the subject.

In the case of the Fidelity Mutual Aid Association (State v. Moore, 38 Ohio St. 7), we held that “A company of another state organized for ‘insuring lives on the plan of assessment upon surviving members’ without limitation, does not come within the class of companies provided for in sec. 3630 of the Revised Statutes. That section does not embrace companies insuring the lives of members for the benefit of others than their families and heirs.”

The principle thus announced would exclude the relator unless the law has been changed by subsequent legislation so as to confer the right now claimed.

It is contended that amended section 3630<?, passed April 18, 1883 (80 Ohio L. 180), has accomplished that result. That section is as follows:

“ Any corporation, company or association, ox’ganized under the law of any other state to insure lives of members on the assessment plan, and authorized to transact the business contemplated in sec. 3630 (shall be permitted to do such business, to wit: the business contemplated in sec. 3630) ixx this state, by first complying with the laws of the state of Ohio regulating cox’porations, companies or associatioxxs orgaxiized for the mutual protection of its xnembex's within this state, upoxx obtaining from the superintendent of insurance of this state a certificate of such compliance, which certificate shall not be granted until such foreign corporation, company or association shall have appointed an agent or attoxuiey within this state, upon whom service of px-ocess may be had. Provided, that the superintendent of insurance shall not be required to issue certificates to do bxxsiness in Ohio to an agent of any such corporation, company, or association ox’ganized in any state in which such Ohio coi’porations, companies, or associations are not permitted to do lousiness on substantially the same basis and limitations as they are ixx Ohio.”

It will be seen that before a cox’pox’ation, organized under the law of another state, shall be permitted to do business in Ohio, or be entitled to the certificate from the insurance commissioner, it must appear, 1. That it is a company or association organized to insure lives of members on the assessment jalan. 2. That it is authorized, i. e. by the law of its organization, to transact the business con tern jfiated by section 3630', Rev. Stats. 3. That it has complied with the laws of this state regulating companies, corporations or associations organized for the mutual protection of its members within this state. 4. That it has appointed an agent or attorney in this state, upon whom service of process may be had.* And 5. That in the state in which it is organized, Ohio corporations, companies or associations, are permitted (and that means permitted by law) to do business on substantially the same basis and limitations as they are in Ohio.

■ The latter requirement is not shown by the relator in this case. By the statute of New York, passed April 2, 1883, which is in evidence, it is enacted as follows :

“ Sec. 1. Any number of persons not less than nine, residents of the state of Now York, hereafter desiring to form an organization, fraternal or non-fraternal, for the purjjosc of transacting the business of life and casualty insurance, or both life and casualty insurance, ujaon the co-operative or assessment plan, may associate themselves tog-ether, and affect such organization as hereinafter prescribed.”

By section 5, it is provided that any corporation, association or society, which issues any certificate, policy or other evidence of interest to, or makes any promise or agreement with its members, whereby ujaon the decease of a member any money, or other benefit, charity, relief or aid is to be j:>aid, provided or rendered by such corporation etc. to the legal rejaresentatives of such member, or to the beneficiary designated by such member, which money, benefit, charity, relief or aid are derived from voluntary donations, admission fees, dues or assessments, or any of thorn, collected or to be collected from the members thereof, etc., shall be deemed to be engaged in the business of life insurance upon the co-operative or assessment plan, and shall be subject only to the provisions of this act. By section 6, of the act the same provisions are made with reference to companies or associations, insuring against sickness or disability.

This is a legislative definition of the business of life insurance, upon' the assessment plan, in the state of New York. It includes a kind of insurance not contemplated by sec. 3630 of our Revised Statutes. A business which, under the authority of State v. Moore, supra, cannot be engaged in, in this state, without furnishing security for the assured as provided in secs. 3604, 3605 Revised Statutes.

By section 10 of the aforesaid act, it is made the duty of the insurance commissioner of New York to refuse a certificate of authority to any such corporation, organized under the laws of any other state, when in his judgment such refusal will best promote the public interests. And also to refuse such certificate to any such corporation when, by the laws of the state under which the same is organized, corporations of New York doing a life and casualty business upon the assessment or co-operation plan are not permitted to transact such business in such other state.

“ Such business ” in this statute, means the business of insurance on the assessment or co-operation plan, as defined by the act, and includes business, as we have already seen, which cannot be permitted under the laws of this state, i. e., insuring the lives of members for the benefit of others than their families and heirs, without compliance with the provisions of section 3604, Rev. Stats.

It is quite apparent, too, that the discretion vested in the insurance commissioner of New York, might be so exercised as to exclude all Ohio companies. It is in evidence that he has already excluded such companies, on the ground that there are over one hundred such companies doing this business in New York, quite enough for the. demands of the people of that state.” Conceding the claim of the relator, that this discretion cannot be arbitrarily or oppressively exercised, it is nevertheless true that no Ohio company can demand, as a legal right, a certificate to do business in that state, where such discretion is fairly exercised, which can be enforced by mandamus. Under the other provision, it is equally clear that the provisions of our law, which exclude the business of insuring lives of members for the benefit of others than their families or heirs, can be made the basis of a refusal to issue any certificate to an Ohio corporation, organized to do the business contemplated by section 3630 of our Revised Statutes.

"We have not, for the reasons given, considered it necessary to examine the other questions made by counsel.

Writ refused.


author: Upson, J.

text:
    Mulvey v. King.
    Where a person by means of false representations of facts materially ail acting the identity and value of certain real estate, induces another to enter into a contract for the purchase thereof, upon the faith of such representations, and upon which he was justified in relying, the purchaser may, in an action brought by the vendor for the purchase price, recoup the damages which he has sustained by reason of such false representations, although the vendor believed them to be true when made, and had good reason for so believing.
    Error to the District Court of Portage county.
    Ira S. King brought suit against Michael Mulvey and James Reynolds to recover the amount duo upon a promissory note for three hundred and sixty-six dollars, made by them, dated May 10, 1870, and payable to Ira S. King, three years after date. In their amended answer, Mulvey and Reynolds admitted the execution of the note, but averred that Reynolds was in fact only a surety thereon.
    They further alleged that the note was given in part payment for a tract of land sold, at the date of the note, by King to Mulvey ; that as part of the contract of sale King represented to Mulvey that he owned the land which extended south to a certain fence (which he pointed out, and represented to be the line fence), between his land and that adjoining, and as being the southern boundary of his land, and that the tract of land within the boundaries pointed out included five acres and sixteen hundredths of an acre, on which there was a barn, and also valuable trees; that this piece of land would have made the tract sold to Mulvey more valuable by the sum of four hundred and fifty dollars, than the land which was in fact conveyed to him, and which did not include that piece; that King was then in possession of the five acres and sixteen hundredths, and put Mulvey in possession thereof; but that in fact he had no legal nor equitable title thereto, and the real owner obtained judgment for the possession thereof, against Mulvey, who was obliged to pay a. large sum for that part of the land, to avoid losing it; that King, being notified of the proceedings, and requested by Mulvey to defend his title and possession, but neglected and refused to do so; that when the deed of the land was made by King to Mulvey, the description, by mistake, did not include the five acres and sixteen hundredths, and made the south line so far north as to exclude that part thereof, which King, when the contract of sale was made, and as a part thereof, contracted and agreed to sell to Mulvey, who at the time of the execution and delivery of the deed, and for a long time thereafter, was ignorant of the mistake, and believed that the deed included the entire tract; that Mulvey had paid all of the purchase money, except that part for which the note described in the petition was given, and was willing to pay that if King would perform his contract ; that by reason of the premises Mulvey had sustained damages to the amount of four hundred and fifty dollars, for which he asked judgment, with interest from May 10, 1871, less the balance due on Ihe note.
    To the amended answer no rely was filed, and the cause was submitted- to the court, upon the petition, amended answer, and testimony. The plaintiff was not present at the trial, and no testimony was given in his behalf, but all of the material allegations of the amended answer were proved by the testimony of Mulvey and witnesses called by him, the alleged representations having been made by an agent who was authorized by King to make them ; and it was also proved that Mulvey bought the land on the faith of those representations, and would not otherwise have bought it; that the most valuable part of the tract was the five acres and sixteen hundredths; that King believed the representations to he true, at'the time the contract was made, and the land conveyed, the mistake having been made in a previous survey of the land, which all parties supposed to be correct; and also that the description in the deed included as large a quantity of land as Mulvey supposed he was buying, but the title to a part of it was in dispute. All of the evidence is. contained in the bill of exceptions, which is made a part of the record. The court of, common pleas decided in favor of King, overruled Mulvey’s motion for a new trial, and rendered judgment against him, which was on error, affirmed by the district court. This proceeding is prosecuted to reverse the judgment' of the district court.

      W. B. Thomas and Luther Bay, for plaintiff in error,
    cited Holzworth v. Kock, 26 Ohio St. 33 ; Allen v. Shackelton, 15 Ohio St. 145; 1 Story’s Eq. § 193 ; Smith v. Richards, 13 Pet. 38; Frenzel v. Miller, 37 Ind. 1; 63 Pa. St. 90 ; 21 Conn. 274; 61 Pa. St. 427; 46 Ind. 15; 51 Vt. 148; 54 Miss. 174; 67 N. Y. 338; 3 Hill, 171; 17 N. Y. 529.

      Ira S. King and Aljjhonso Hart, for defendant in error.
   Upson, J.

The facts alleged in the amended answer not having been put in issue by a reply, and having also been fully proved by the testimony, the court of common pleas must have decided that these facts did not constitute a defense nor counter-claim. The representation that the tract of land purchased, included a piece more valuable than that actually conveyed, on account of its being of better quality, and having on it timber, and a building of some value, was certainly a material representation, and if made falsely or fraudulently, would, without doubt, constitute a good cause of action for the damages sustained by a person who was, by means thereof, induced to purchase the property.

In the case of Allen v. Shackelton, 15 Ohio St. 145, it was hold that the purchaser might set up, as a defense to a suit upon the note and mortgage given for the purchase money, a counter-claim for damages for fraud practiced, in the sale of the premises by the vendor, by means of representations similar to those which were made by King to Mulvey; but that was a case of actual fraud.

In the case of Taylor v. Leith, 26 Ohio St. 428, which was an action brought to recover damages for fraudulent representations in the sale of lands, it was held that the instruction given by the court of common pleas was calculated to mislead the jury, by giving them to understand that the representations which were untrue in fact would give a cause of action, although they may have been founded in mere mistake; and, in the opinion of the court, White, J., says: “The present action is brought to recover damages for fraud or deceit practiced in the sale of land. To constitute a cause of action there must be bad faith. If the representations, when made, were believed to be true, and the facts of the case were such as to justify the belief, there is no fraud or deceit, and there can be no recovery.”

In the case of Ætna Ins. Co. v. Reed, 33 Ohio St. 283, it Was held that an action would lie for a false representation of a material fact, whether the party making it knew it to be false or not, if he had no reason tp believe it to be true, and it was made with the intention of inducing the person to whom made to act upon it, and he did so, sustaining a damage in consequence. The principle upon which a person is held liable for damages in such a case is, that one who causes damage to another by inducing him to act upon representations false in fact, and which the person making them has no reason to believe to be true, is guilty of such gross negligence as in law is regarded as a fraud.

It may be considered as well settled in this state, by the cases above cited, that an action for damages caused by misrepresentation cannot ordinarily be maintained, without proof of actual fraud, or such gross negligence as amounts to fraud. When, however, a person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles cannot be applied. It is then only necessary to prove that the representation was material and substantial, affecting the identity, value or character of the subject-matter of the contract, that it was false, that the other party had a right to rely upon' it, and that he was induced by it to make the contract, in order to entitle him to relief either by rescission of the contract or by recoupment in a suit brought to enforce it.

In this case it is fully proved that the representations made, materially affected the identity and value of the property sold, that they were made for the purpose of inducing Mulvey to make the purchase, that he believed them to be true and therefore bought the property, which he would not otherwise have done, and that they were false. But the testimony also fully proves that King was guilty neither of fraud nor of gross negligence in making those representations, his mistake having been occasioned by that of a surveyor in previously establishing the boundary line.

The facts thus proved bring the ease within the principles above stated and give a right of recoupment in an action for the balance of the purchase money, to the extent of the deficiency in the value of the property purchased.' The rights of the purchaser do not rest upon the ground of fraud, actual or constructive, but that, to the extent of the difference in value between the property as it was represented to be, and the property conveyed, there is no consideration for his promise, lie cannot, upon any principle of law or equity, be compelled to pay for what the vendor did not own, and could not convey. The maxim caveat emptor does not apply to such representations as were made in this case, upon which the purchaser under the circumstances had a right to rely, and in reference to which he was guilty of no negligence.

Judgments of the district court and court of common, pleas reversed, and cause remanded.


author: Okey, J.

text:
    Staight v. The State.
    Where an application for a marriage license is made to a deputy clerk of the probate court who is holding, without a new appointment, during a second term of the judge appointing him, and such deputy administers an oath to the applicant and examines him as to the right of the parties to such license, a prosecution for perjury cannot be maintained against such applicant, based on such testimony, for the reasqn that the oath is not administered by lawful authority.
    Error to the Court of Common Pleas of Logan county.
    Staight was indicted in the court of common pleas of Logan county for perjury. It was proved that he made application for a marriage license, in Logan county, on December 2, 1882, and testified as to the ages of the parties to the contemplated marriage, and residence of the female, and the alleged perjury was in the testimony so given. The oath was administered by L. E. Pettit, to whom the application was made. In 1878, R. E. Pettit was elected and duly qualified as probate judge of Logan county. He was re-elected in 1881, and on February 6,1882, entered on his second term, after being duly qualified, and he continues to be such jrjj^e. Evidence was given on the trial tending to show ^ait on December 8, 1879, R. E. Pettit duly appointee, deputy clerk of the probate court, L. E. Pettit, who, being duly qualified, entered on the duties of the appointment, and he has acted as such deputy continuously ever since that time, under the original appointment, and that he was not re-ap-. pointed when .R. E. Pettit entered upon his second term of office, nor since. Staight asked the court to charge the jury, that if they should find the facts to be as above stated, he could not be convicted, but the court refused so to charge, and he excepted. The jury having returned'a verdict of guilty, he was sentenced to the penitentiary, and the sole question on this petition in error is whether the court erred in refusing so to charge.

      The Revised Statutes provide as follows :
    “ § 533. Each judge shall have the care and custody of all files, papers, books, and records belonging to the probate office, and is authorized and empowered to perform the duties of clerk of his own court; and each probate judge may appoint a deputy clerk or clerks, each of whom shall, before entering upon the duties of his appointment, take an oath of office, and when so qualified, such deputy may perform any and all the duties appertaining to- the office of clerk of the court; and each deputy >clerk is authorized to administer oaths in all cases in which it is necessary, in the discharge of his duties as such deputy clerk.” And see §§2, 10, 4949.
    “ § 6897. Whoever, either verbally or in writing, on oath lawfully administered, willfully and corruptly states a falsehood, as to any material matter, in a proceeding before any court, tribunal or officer created by law, or in any matter in relation to which an oath is authorized by law, is guilty of perjury, and shall be imprisoned in the penitentiary uot more than ten nor less than three years.”

      “ § 7221. In an indictment for perjury, or for subornation of perjury, it shall be sufficient to set forth the substance of the offense charged, and before what court or authority the oath was taken, averring such court or authority to have full power to administer the oath, together with the proper averments to falsify the matters wherein the perjury is assigned, without setting forth any part of any record or proceeding; or the commission or authority of the court, or other authority, before which the perjury wás committed.”

      William Lawrence, Joseph LI. Lawrence, and J. A. Huston, for plaintiff in error :
    In addition to cases cited in the opinion, counsel cited on the question presented the following, Const. art. 15, § 7; 3 Inst. 165 ; 1 Hawk. P. C. 431; 2 Hawk. P. C. 86; Mahan v. Berry, 5 Mo. 21; State v. McCollister, 11 Ohio, 46; State v. Corey, 4 West. L. Mo. 563 ; s. c., 16 Ohio St. 17, 35 ; Wharton’s Cr. Ev. § 1315; 3 Lawrence’s Compt. Dec. 60 ; 1 Op. Atty. Glen. 670; 7 Id. 597 ; Chapman v. Inhabitants, 56 Maine, 390; State v. Kennon, 7 Ohio St. 558 ; People v. White, 24 Wend. 539.

      D. A. Hollingsworth, Attorney-General, for the state.
   Okey, J.

Proof by the state that L. E. Pettit was, at the time he administered the oath in question, acting as deputy clerk of the probate court, and had acted in that capacity about three years, with the assent of the probate judge and the acquiescence of the public, was prima facie sufficient to show that the oath was lawfully administered. R. v. Roberts, 38 L. T. (N. S.) 690 ; s. c., 14 Cox C. C. 101; Keator v. People, 32 Mich. 487. The general rule is that as to third persons and the public, the acts of one thus performing service are in all respects as valid as acts done by an officer de jure. Strang, ex parte, 21 Ohio St. 610; Cf. Bernier v. Becker, 37 Ohio St. 72; Munford v. Rice, 6 Munf. 81. But in prosecutions like this the rule is different. Notwithstanding the prima facie proof offered by the state, the accused had the right to show that L. E. Pettit was not ah office]- de jure, and so defeat the prosecution. This was held in the leading case of R. v. Verelst, 3 Campb. 432 (1813), where the person administering the oath had been an officer de facto for twenty years, and that case has been repeatedly followed in England and this country. R. v. Roberts, supra; R. v. Newton, 1 C. & K. 469; State v. Hayward, 1 Nott & M. 546; Muir v. State, 8 Blackf. 154; State v. Hascall, 6 N. H. 352; Biggerstaff v. Com., 11 Bush, 169 ; Lambert v. The People, 76 N. Y. 220; 3 Russ. Cr. 89 ; Ros. Cr. Ev. 815; 2 Bishop’s Or. L. § 1020. In Stephens v. State, 1 Swan, 157, as in Oaks v. Rogers, 48 Cal. 197, administering the oath in open court, by one not an officer, was regarded as the act of the court which directed it to be administered, and hence that case is not in conflict with the rule as stated.

In Warwick v. State, 25 Ohio St. 21, it was held that a deputy clerk of the probate court need not be an elector; but there the deputy had ■ been regularly appointed and qualified, hence was a deputy clerk de jxore, and therefore qualified to administer an oatb like that in question here ; for the act was ministerial, and a deputy may perform any duty with respect to granting and issuing the license even in his own name (Walke v. Circleville, Chapin v. Allison, 15 Ohio, 288, 566), though regularly such acts should be done in the name of the principal. Here evidence was offered to show that L. E. Pettit was not a deputy clerk de jure, but the court said the evidence was immaterial, and therein erred.

Judgment reversed.


text:
    Miles v. Reiniger.
    1. Whether an equitable interest in an instrument for the payment of money passes by delivery — whether such instrument be negotiable or not, or be indorsed or not — depends solely on the intention of the parties. But a secret intention inconsistent with the positive acts of the party, is of no avail.
    3. R., the owner of a county order, on presenting it to the treasury for payment, was requested by M., the treasurer, to take it to his bank, which he did, and delivered it to the bank without indorsement, and took credit for the amount thereof as a deposit in his account,subject to his check in two or three days thereafter. On the next day the bank presented the order to the treasurer for redemption, and the same was satisfied by giving credit to the bank upon its checks then held by the treasurer. On the second day thereafter, and before R. had checked on any portion of the order deposit, the bank failed.

      Held : Without showing bad faith on the part of M., an action against him by R. for the wrongful conversion of the order, cannot be maintained.
    Error to District Court of Scioto county.
    The original action was brought by Reiniger against Miles to recover the value of a certain order of which the following is a copy:

      “ Office of the Auditor Scioto Co., )
    Portsmouth, 0., Nov. 13, 1877. j

      u To the Treasurer of Seioto County:

      “ Pay to P. Reiniger or Order, Seven Hundred and Twenty- _ seven Dollars and two cents out of tlie County Current Pund, for fee account from June 5th to Nov. 8th, 1877.
    “ W. Ii. II. Cadot,
    $727.02. County Auditor.”
    The plaintiff, Reiniger, claimed, in his petition, that defendant, Miles, on November 15, 1877, wrongfully converted this order, the property of the plaintiff, to his own use.
    The defendant, by his answer, denied the ownership of the plaintiff, at the time of the alleged conversion, and denied the wrongful conversion.
    The following facts in the case are undisputed : That Reiniger received the order from the auditor of the county on November 13, 1S77; that on same day he presented the same, at the county treasury, to Miles, who was county treasurer, for payment; that Miles recpiested him to take the order to the banking house of W. Kinney & Co., where both parties kept accounts, to which request he assented; on same day the plaintiff delivered the order without indorsement, to Kinney & Co., who gave him credit as a deposit for cash, for the amount thereof, in his account upon the books of the bank; on the next day, Kinney & Co. presented the order to Miles, as treasurer, for redemption, and received payment therefor by credit for the amount upon checks held by the treasurer upon the bank, which had been received by the treasurer in payment of taxes, and that two or three days after the order had been redeemed by the treasurer, and before the plaintiff had drawn upon Kinney & Co. for any part of the money so placed to his credit upon the books of the bank, Kinney & Co. failed. Whereupon the plaintiff demanded of defendant a surrender to him of the order aforesaid, which was refused ; and, thereupon, the original action was commenced.
    On the trial, three witnesses were examined in respect to the circumstances of the deposit of the order by the plaintiff with Kinney & Co.
    The plaintiff testified as follows:

      “ This is the order in question. I got it from the auditor. I presented it to the defendant in the treasurer’s office in the ( court-house. I got no money.- He told me to take it to W. Kinney & Co., and say nothing. I did so. Kinney was standing at the door. Kricker was at the desk. I handed it to Kricker. He asked me if I wanted money. I told him I did. He then called Mr. Kinney, and he asked me if I wanted the money. Kinney stepped behind the counter to a little desk. I told him I wanted money. He then gave me to understand that he was hard up, but could give me the-money in a few days, and said, ‘ Come back in a day or two.’ 1 then left the order there. I did not indorse it; I did not have my bankbook with me.”
    And on cross-examination testified “ I never deposited the order. I did not have my bank-book with me when I left the order.”
    William Kinney, on behalf of defendant testified :
    “ 2d Question. Where did you reside, and in what business were you engaged on the 13th day of November last 2
    “Answer. Portsmouth, Ohio, and was engaged in the business of banking.
    “ 3d Question. Had you any business transaction with the plaintiff, Reiniger, on that day, and if so, state what it was; state fully.
    “ Answer. Reiniger came in .my office and behind the counter late in the afternoon of the day mentioned, and handed me an order on the county treasury for seven hundred and odd dollars (don’t remember exact amount), saying the county safe was not open, but that the treasurer of the defendant told him to bring it down to me and I wrould cash it for. him. I asked him if he wanted the currency; he said no, just give me credit for it and he would check it out as he needed it, and I accordingly give him credit on our books for the amount. I had no other transaction with him on that day or about that time, as far as I can remember now. •
    ‘£ éth Question. Have you stated all the conversation that occurred between yourself and Reiniger 2
    “ Answer. I have.
    “ 5th Question. Previous to this time, had the plaintiff Reiniger, been a depositor with your bank, and if so, for how long ?
    “ Answer. He had, ever since he had been sheriff of the county.

      “ 6th Question. Had he ever before deposited with you similar orders on the county treasury ?
    “Answer. Yes sir, he or his deputy had frequently done so. Sometimes one would bring the book down, and then the other.
    “ 7th Question. Why did you not require him to indorse this order ?
    . “ Answer. It was not my custom to require indorsement . on such orders, and Mr. Reiniger never indorsed his orders to me, and were always received by me without indorsement.
    “ 8th Question. What became of this order after you gave the plaintiff, Reiniger, credit for it ?
    “ Answer. The treasurer paid next day.”
    Frank C. Kricker, also for defendant testified :
    “ I kept books for W. Kinney & Co. They were private bankers on Market street this city. Reiniger the plaintiff had an account with the bank at that time, Nov. 13th, 1877. I have the ledger of W. Kinney & Co. here. Plaintiff had an account as sheriff and an individual account. Both accounts were running ever since the bank was started. The entries in these accounts are in my handwriting. I know of plaintiff depositing the order. On Tuesday, Nov. 13, 1877, William Kinney was at the door talking to some one in the street. Mr. Reiniger came in and handed me the order, and-said'Miles sent him down with this and told him to say nothing. I called Mr. Kinney and told him what Reiniger had said. Mr. Kinney took it and said, “ This is all right. We are a little close now;.you don’t want the money now? Reiniger said no, but would want a little money from time to time. I then made a memorandum of it and put it on the wire among the cash items, and gave him a duplicate, which is here produced.

      “ ‘ W. Kinnev & Co., )
    ‘Portsmouth, O., Nov. 13, 1877. [
    ‘ Deposited by Fred. Reininger, Jr.. $727.02.

      W. JL & Co., per JL’
    “ I then gave him credit for the order on the books of the bank, the same day. (The book of original entries, with the entry of credit made by witness of the deposit of said order was here produced, and the entry was read to the jury.) The journal reads: ‘November 13, 1877, F. Reiniger, by county order', $727.02.’ It was put down as cash in the deposit book. The memorandum ticket was given as a vouchor for the deposit. If he had had his bank book with him he would have got credit in it. The ticket was given because he didn’t have his bank book .with him. The order was sent with other orders, next day, to the court-house. The treasurer held checks of W. Kinney & Co., and when the orders wore taken up, took it out of them. The order was credited to plaintiff as cash, and was subject to check as cash.”
    The court, among other things, charged the jury : “If the plaintiff passed over to W. Kinney & Co., the custody oí the order in question, without indorsing the same, upon the promise of said firm to, credit his account (upon their books with the amount) thereof, and with the further promise, also, that they would in a few days thereafter, pay to him upon his check, the amount of the same in money, and said credit was given but said money was not paid, and in three days thereafter said firm failed añd suspended payment, the plaintiff would be entitled to recover in this action, notwithstanding the fact that the said firm on the next day presented said ’ order to the defendant, and he then gave them credit to the amount of said order upon their indebtedness to the county.”
    And refused to charge, as requested . by defendant, as follows : “ If, when the order in controversy was presented to W. Kinney & Co., said firm said it was all right, but they were hard up, and if it. would answer him not to check on them for a day or two for the amount, that they would take the ordei', and thereupon the order was delivered by plaintiff to "VV. Kinney & Co., but without indorsement, with the understanding that he was to he credited on his deposit account with the amount thereof, with the right to check on it in a day or two, and the same was so deposited, and on the day following W. Kinney & Co. presented it to defendant for payment, and he in good faith paid the same to the satisfaction of W. Kinney & Co. in full, and cancelled the same, plaintiff, under the circumstances named, so far parted with ownership of said order that he could not, after such payment, demand of defendant the return of said order, and upon his refusal to return it, maintain an action against him for its unlawful conversion.”
    Verdict and judgment were rendered for plaintiff.
    All the testimony, together with the charge of the court to the jury, and certain requests to charge by defendant which were refused are made part of the record by bill of exceptions.
    The district court, on error, affirmed the judgment of the common pleas.
    In this proceeding to reverse the judgments of the courts below, it is assigned for error, that the verdict of the jury was contrary to the evidence, and that the court of common pleas erred in its instructions to the jury and in refusing to charge as requested by defendant in the original action.

      Moore & Newman.and A. T. Holcomb, for plaintiff in error.

      W. A. Hutchins, J. 'IF. Hannon and T. G. Anderson, for defendant in error.
   McIlvaine, J.

The foregoing statement of the case does not purport to set out all the testimony ; but the undisputed facts stated, together with the testimony in respect to the mat ter of the deposit of the order by the .plaintiff below with Kinney & Co., should liaye controlled the verdict of the jury ; and we think, if the jury had been properly charged, there can scarcely be a doubt, but that the verdict would have been for the defendant below.

It seems to us, that the court of common pleas attached too much importance to the fact that the order was delivered by the plaintiff below, to the bank, without indorsement, or, in other words, that the legal title to the paper did not pass to the bank. If the bank acquired an equitable title only to the order, the county treasurer was justified in redeeming it, in the manner it was redeemed, as fully as though the order had been indorsed by plaintiff at the time of its delivery. The true test, by which the issue between the parties should have been determined, was, did the plaintiff, when he left the order with the bank, intend to look to the bank for his pay ? The sole question is one of intention; not of form. That the bank assumed to pay the amount of the order to the plaintiff within two or three days, upon presentation of plaintiff’s checks, cannot be questioned, and we think it is scarcely susceptible of a doubt, that the order was delivered to the bank, in consideration of that undertaking of the bank. Hence, the court should have given in charge the following request:

If, when the order in. controversy was presented to W. Kinney & Co., said firm said it was all right, but they were hard up, and if it would answer him not to cheek on them for a day or two for the amount, they would take the order, and thereupon the oi'der was delivered by plaintiff to W. Kinney & Co., but without indorsement, with the understanding that he was to be credited on his deposit account with the amount thereof, with the right to check on it in a day or two, and the same was so deposited, and on the day following W. Kinney & Go. presented it to defendant for payment, and he in good faith paid the same to the satisfaction of W. Kinney & Co. in full, and cancelled the same, plaintiff, under the circumstances named, so far parted with ownership of said order that he could not, after such payment, demand of defendant the return of said order, and upon his refusal to return it, maintain an action against him for its unlawful conversion.”

The court did charge the jury, .however, that “ if the plaintiff passed over to W. Kinney & Co., the custody of the order in question, without indorsing the same, upon the promise of ■ said firm to credit his account upon their books with the amount thereof, an'd with the further promise also, that they would in a few days thereafter, pay to him upon his check, the amount of the same in money, and said credit was given, but said money was not paid, and in three days thereafter said firm failed aud suspended payment, the plaintiff would be entitled to recover in this action, notwithstanding , the fact that the said firm on the next day presented said order to the defendant, and- he then gave them credit to tlio amount of said order upon their indebtedness to the county.”

The case intended to be put to the jury in this proposition, we suppose, was, that if it were the intention of the parties, that the ownership of the order should remain in the plaintiff until his clerks were actually paid, and such payments were never made, the plaintiff might recover. The proposition, thus interpreted, was abstract, unless supported by the mere fact that the order was passed over without indorsement, which fact alone, we think, under the circumstances, would not support the proposition. On the other hand, we think the proposition as given would more likely, be understood by the jury as the converse of the rejected request by defendant above stated, and which ought, as above held, have been given in charge.

Judgments reversed, c&o.