text:
    Dayton v. Hooglund.
    ■1. Whether in a contract of sale made solely by correspondence, there is a warranty as to quality, is a question for the court; and, although parol evidence is not admissible to contradict the agreement, the court may look, not only to the language of the correspondence, hut the subject matter of the agreement and surrounding circumstances-so as to be able to see the transaction as the parties themselves saw it.
    2. Authority without restriction to an agent to sell, carries with it author, ity to warrant.
    3. A foreign manufacturer of a superior brand of iron, having sold a por_ tion of it to a customer in this country, advised another customer^ known to him to be a manufacturer of bolts and nuts, to buy of the first customer “a ton or so for sample, should you wish to test the quality with a view to import this year; ” and such second customer, informing the manufacturer that he had acted on his advice, and finding the iron satisfactory for his purpose, ordered twenty tons of the brand; Held, that this amounted to a warranty that the twenty tons which, were to be manufactured by the plaintiff for the defendant for such use in his business, should be equal in quality to such sample.
    4. In a suit for the price of a lot of iron manufactured by the plaintiff for the defendant, the defendant, in case there is a breach of warranty as to the quality of the iron, may recoup for such damages as he has sustained, although he has used the iron without offering to return it.
    Error to the District Court of Hamilton county.
    Frederika W. Hooglund and Carl Andres Lindroth, doing business as N M. Hooglund, manufacturers and shippers of iron at Stockholm, Sweden, brought suit September 29, 1874, in the Superior Court of Cincinnati, against Lewis M. Dayton, of Cincinnati, engaged in the business of manufacturing nuts and bolts in that city, under the name of American Bolt and Nut Works. The action was to recover the price of twenty tons of Swedish iron, “II. F. S.,” of specified sizes, sold by the plaintiffs (through Nils Mitander, their agent, of the city of New York) to the defendant. The contract was made solely by.letters between Mitander, as such agent, and Dayton.
    The answer to the petition sets forth, among other things, by way of counterclaim, that the iron was ordered of the plaintiffs for use by defendant in his business ; that it was sold to him by sample; that the iron furnished was greatly inferior to the sample; that there was much delay in the delivery of the iron ; and that by reason of such inferior quality and such delay, the defendant has been damaged.
    In reply the plaintiffs admit “ that said contract was in the form of an order, made by the defendant, and accepted by the plaintiffs, for said quantity of certain description of plaintiffs’ manufacture; ” but they deny the allegations of the answer above mentioned, and say that they “ proceeded to prepare and did furnish said iron as soon after accepting said order as was practicable;” and the allegations of the answer, above mentioned, were denied.
    The cause was tried to a jury in February and March, 1878, and a verdict was rendered for the plaintiffs, on which judgment was rendered against Dayton for $2,553.78. The district court affirmed the judgment, and this petition in error is prosecuted by Dayton for the reversal of both judgments.

      Probably all the evidence offered on the trial is set forth, substantially in the record; but as the bill of exceptions does not purport to contain all the evidence, the question whether the verdict is opposed to its weight, is not for consideration in this proceeding.
    The fair inference from the testimony is that Dayton knew, from the beginning of the correspondence, that Mitander was agent of the plaintiffs, and clothed with authority to do whatever he undertook to do in the transaction ; and that Mitander knew, and it must be assumed the plaintiffs knew, that Dayton was engaged in business in Cincinnati, and wanted the iron, not for the purpose of selling it in the form received, but for the purpose of manufacturing it into bolts and nuts for sale to his customers.
    On February 8, 1873, Dayton wrote to Mitander, ordering ten tons of iron (specifying size) of the kind mentioned in Mitander’s circular, which Dayton had received. Mitander replied as follows:
    “New York, February 13th, 1873.
    L. M. Dayton, Esq., American Bolt and Nut Works,
    184 West Second street, Oi/ncinnati, Ohio:

      Dear Sir: In reply to your favor of the 8th instant, just at hand, would say that the bolt rods in question are sold, and I have at present no bolt rods on hand. Messrs. Steever & Potts of Philadelphia, I know, have some H. F. S. bolt rods -| and T\ inch square, from whom you may get a ton or so for sample, should you wish to test the quality with view to import this year. For importation I quote, viz:
    H. F. 8. from to -J- inch square $115.
    “ « “ “ “ “ round 117.50
    A. H. “ “ “ “ “ square 115.
    “ “ “ “ “ “ round 117.50
    O. B. “ “ “ “ “ square 115.
    “ “ “ “ “ “ round 117.50
    all gold per ton, at dock at Boston, New Yorkor Philadelphia, without duty, landing and custom-house charges, thirty days. The duty is 1J cents per pound,' less ten per cent, payable by the buyer upon arrival of iron. Above quotations are subject to confirmation from my house at Stockholm by cable. Your obedient servant,
    Nils Mitander.”
    On the trial Mitander testified: “ Bands around the iron have H. F. S. stamped on them. Our house has made a great deal of it. Plaintiffs are shipping merchants and shareholders in various iron works. Swedish iron varies from £10 to £21 per ton. One brand brings £25. The H. F. S. brand is one of the best I sell.. . H. F. S. brand is a word or stamp by which the iron is known. — Is only one quality of that grade of iron. Certain ores go into the making of this brand. . . . There has never been more than 5 per cent, waste in H. F. S. iron. . . . The Steever & Potts iron was ordered from me, but shipped from Sweden direct to Philadelphia. . . . II. F. S. brand is adapted for anything requiring strength. The brand bends well.”
    Dayton replied to the letter of February 13th, as follows :

      “ Cincinnati, March 24, 1873.
    Mr. Nils Mitander,
    69 William street, New York:

      Dear Sir: After your favor of 13th pit. I ordered the bolt rods from Messrs. Steever & Potts, Philadelphia, and finding the quality to be what I want, can now make you an order for importation. Please order for me Norway bolt rods, II. F. S. brand, New York entry, as per price named by you, 1 ton yV round, 4 tons round, 2 tons f round, 3 tons f round, 4 tons -5*5- round, 3 tons round, 3 tons T\ round. If you have any of the above in store in New York, you can forward at once, if you prefer to do so. Please advise me of receipt of order and oblige, Truly yours,
    L. M. Dayton.”
    On the trial Dayton testified : “ The iron received from Steever & Potts was a little short of three tons. I gave this iron particular attention. D think it was equal in quality to any I ever used. Its qualities were tensile strength, tenacity, and so soft as to be bent and twisted in various ways without breaking — to be heated, swedged, and have a thread cut on it. Heating did not damage it.” Other witnesses testified to the same facts.
    After further correspondence, in which there was slight modification as to size and shape of rods and price, Mitander wrote as follows:
    “New York, April 1,1873.
    American Bolt and Nut Works,
    184 West Second street, Cincinnati, 0.:

      Dear Sirs: Your esteemed favor of 29th ultimo duly received, conveying offer for 20 tons H. F. S. square bolt rods, as per specification, at $121 gold per ton, 2240 pounds, at dock, New York, 30 days; the duties and custom-house charges payable by the purchasers; which offer will be sent by first mail to my house for confirmation, and I shall have the pleasure, in due course of time, to inform you of its acceptance. I have taken due notice of your request regarding the shipment. The price above' given is both for rounds and squares, I presume they have got some way of facilitating the making of round rods, as the squares and rounds are at present quoted at the same price. I am, Your obedient servant,
    Nils Mitander.”
    After further correspondence, in which there was a further slight modification as to size of rods, the agreement, on May 24,1873, received the assent of both parties. Subsequently the mill in Sweden, in which the iron was being manufactured, was in part destroyed, and a lengthy, angry correspondence ensued between Dayton and Mitander, containing complaints by Dayton of delay in filling the order, and explanations by Mitander as to the causes of such delay. The twentieth letter was as follows:
    “New York, December 26, 1873.
    “ American Bolt and Nut Works,
    “ 170 and 184 Second street, Cincinnati, Ohio:
    “ Dear Sirs: I beg leave to inform you of thé shipmen t from London to this port, per S. S. ‘ Harold Haarfager,’ on the 1st of this month, your order for H.F.S. bolt rods complete, in 452 bundles, weighing tons 20 3.0.4. As per your former instructions, the shipping documents will be handed over to Merchants’ Dispatch Transportation Co. for shipment in bond to your place. In case of loss at sea you will effect insurance on the profit you anticipate on this importation; my insurance will only cover the value of the goods. The steamer ‘Harold Haarfager’ is expected here in the beginning of next month. I am, dear sirs,
    “ Your obedient servant,
    “Nils Mitander.”
    To that letter Dayton replied as follows:
    “ Cincinnati, December 29,1873.
    “ Mr. Nils Mitander,
    “ 69 William street, New York :

      ll Dear Sir: Your favor 26th inst. duly received. I note particularly your remark in regard to insurance; but let me say that in case of loss at sea I should make no profit; to the contrary, I can buy the iron now for less money than the price of that. In this connection let me say that I am offered Sweden iron at $142.50 per ton, gold, free of duty and custom house • charges — have bought at about that rate. However, by reason of the non-delivery of your iron in the time I had every reason to expect it should be, and depending on it, I was forced to purchase at over $160 per ton, gold, nearly up to the amount I ordered from you. Certainly it was the fault of your house in Stockholm that the order was held eight months — a partial destruction of mill does not furnish sufficient reason. It is not right that I should suffer loss at both ends, and therefore expect you to make allowance to meet the present price. Otherwise I do not want the iron.
    “ Yours, with respect,
    “ L. M. Dayton.”
    Further correspondence ensued, in which Dayton informed Mitander that he had rescinded the agreement. Mitander replied that he (Mitander) had no power to rescind. The iron arrived at Cincinnati, and Dayton wrote as follows:
    “ Cincinnati, January 29,1874.
    “ Mr. Nils Mitander,
    “ 69 "William street, New York :
    “ Sir: Your favor, enclosing me bill for 452 bundles iron, which I had notified you not to forward unless you were willing to make good to me the damage by reason of delay, duly received. The iron also duly arrived, and I concluded to take it out of bond to save it from the cost of extra storage and other expenses which will be incurred pending our arbitration, feeling that you will certainly see the justness of my claim. The iron was received into my possession and duties all arranged only yesterday. The customs and other papers showing the ocean charges and shipping expenses came forward to me and I have paid same, and in presenting my bill in part I put them in. You are fully aware, of course, that I have and do expect you will settle the account on the basis of damages to me, so I need say nothing further. The ocean charges were, currency, $68.56. Shipping expenses, gold, $86.29. Tare allowance by customs, '565 pounds. Difference in value of iron now and when should have been received about $19 gold per ton — damage to me in proportion. If you are disposed to settle on this basis I will remit at any time. “ I am, &c.,
    “ L. M. Dayton.”
    The following letters closed the correspondence :
    “ New York, February 2,1874.

      “ American Bolt and Nut Works,
    “Cincinnati, Ohio:
    “ Dear Sirs : Your favor of the 29th January, announcing the receipt of the 452 bundles iron, has been received and contents noted. The ocean freight, $40.50 gold, has been charged you by oversight on the part of the Transportation Company, has been paid by me to them, and will be refunded you by them. For the invoice, $2,438.37 gold, I shall value on you, and please protect my sight draft on you for that amount on the 9th instant, the date on which it is due. I am, dear sirs,
    “Tour obedient servant,
    “Nils Mitander.”
    “New York, February 6,1874.
    “ American Bolt and Nut Works,
    Cincinnati, Ohio :
    “ Dear Sirs: Referring to mine of 2d instant, I beg to inform you that I have to-day valued on you at sight for $2,438.37 gold, order myself, being amount of invoice on bolt rods ex ‘ H. Haarfager,’ which you will please provide for being protected on presentation. I am,
    “Your obedient servant,
    “Nils Mitander.”
    On the trial, Emig, superintendent of the defendant’s works, testified: “We have a common grade of iron at home as good as this iron. It bears no comparison to the first (Steever and Potts) lot. The bolts came back that we made from it. This iron wouldn’t answer. Wouldn’t stand bending when cold, and when made into bolts would break. It was too brittle — too hard. Besides, there was great diversity in sizes. From this cause there was great loss and inconvenience in making the bolts.” Simpson testified: “Nodifference between Swedish and Norway iron. I have always looked upon them as the same. . . . 'These specimens (from the iron in question) are of very poor quality. They look as if the fibres were gone. . . . This iron is worth nothing for Norway bolts. It might make common bolts if it would head.” There was other testimony to the same effect. Defendant testified: “ Something over ten tons of the iron remains. I saw the specimens tested. The iron is not good. It is not suitable for making Norway bolts........A large portion of the bolts made from it came back. The sizes are irregular, and a great deal is lost in making it up. This iron is deficient. It would not bend. It had not tensile strength, and the sizes were irregular. This twenty ton lot is suitable for making bolts of ordinary strength only — for common carriage bolts — such as are made from ordinary American iron. It might be used to make street railroad spikes. Am familiar with the prices of iron in New York. The Steever & Potts iron was worth in New York in January, 1874, $140 in gold including duty.”
    And thereupon the defendant’s attorneys asked,, the witness the following questions:—
    “ What was the iron sent to you by the plaintiffs worth in the New York market in December, 1873, and in January, 1874?
    “ How did the iron sent to you by the plaintiffs compare in value in New York at that time with the value of iron such as was sent to you by Steever & Potts ?

      ‘ How much was the iron sent to you by the plaintiffs worth in January, 1874, in New York, for any purposes for which it could be used ? ”
    To each of which questions the plaintiffs objected, and the court sustained the objection, and refused to permit either of the questions to ho asked, to which overruling of the questions the defendant excepted. And thereupon the defendant offered to prove that the iron furnished by the plaintiffs, on the order given by the defendant, was not worth at the time of delivery, either in the New York or Cincinnati market, more than $70 per ton, in currency, and that it was not worth more than that sum in either of those markets for any use to which it was fitted — which testimony was objected to by plaintiff’s attorneys, and the objection sustained, to which the defendant excepted.

      J. W. Herron for plaintiff in error.
    In addition to authorities referred to in the opinion, counsel cited and relied on the following : Brown v. Edgington, 2 M. & G. 290; Benj. on Sales, §§ 567, 894, 900, 901; Howard v. Hoey, 23 Wend. 351; Gautier v. Douglass, etc., Co. 13, Hun. 514; Bigge v. Parkinson, 7 H. & N. 954; Long on Sales, 128*; Beresford v. McCune, 1 C. Sup. Ct. 51; Dorr
      v. Fisher, 1 Cush. 271; Bryant v. Isburgh, 13 Gray, 607; Hyatt v. Boyle, 5 G. & J. 121.

      Huston & Holmes for defendants in error.
    In addition to authorities referred to in the opinion and argument for plaintiff in error, counsel cited and relied on the following: Baine v. Burnside, 5 N. Y. 95; Waring v. Mason 18 Wend. 25; Loomis v. Cromwell, 8 L. Rep. 546; 13enj. on Sales, §§ 649, 657, 661, 895, 896; Hargous v. Stone, 5 N. Y. 73; Gardner v. Gray, 4 Campb. 144; Bartlett v. Hoppock 34 N Y. 118; Railroad Co. v. Jessup, 44 How. 447; Jone's v. Bright, 5 Bing. 540; v. Randall, 29 N. Y. 358; Chanter v. Hopkins, 4 M. & W. 399; Greenthal v. Schneider, 52 How. Pr. 133; Stafford v. Pooler, 67 Barb. 143; Gibson v. Bingham, 43 Vt. 410; Allison v. Vaughn, 40 Iowa, 421; Kellog v. Denslow 14 Conn. 411; Percival v. Blake, 2 C. & P. 514; Cost v. Giles, 3 C. & P. 407.
   Okey, J.

The agreement in this case was made solely by correspondence between Mitander and Dayton, and is, therefore, an agreement in writing. Its construction is for the court. Parol evidence is not admissible to vary its terms (Thurston v. Ludwig, 6 Ohio St. 1; Jones v. Brown, 11 Ohio St. 601, 606; Neil v. Trustees, 31 Ohio St. 15, 19); nevertheless, the court may look, not only to the language employed in the letters, but to the subject matter of the agreement and the surrounding circumstances, so as to be able to see the transaction as the parties themselves saw it. Merrian v. United States, 107 U. S. 437.

Authority, without restriction, to such an agent to sell such property, to be manufactured for such a purchaser, carries with it authority to warrant that it shall be equal, when manufactured, to a sample produced by the agent when he made the sale. Schuchart v. Allens, 1 Wall, U. S. 359; Ewell’s Evans on Agency, 158 ; cf. Benjamin on Sales, § 945. The rule stated in Herring v. Skaggs, 62 Ala. 180, even if •sound, is inapplicable to this case.

The agreement under consideration was, in effect, this: Plaintiffs, manufacturers of a superior quality of Swedish iron, known as H. E. S. brand, at Stockholm, knowing that defendant was engaged in manufacturing bolts and nuts at Cincinnati, and wanted iron superior to American iron, not for the purpose of re-selling it in the form received, but for the purpose of manufacturing the same into bolts and nuts, and then selling them to his customers for purposes requiring superior iron, informed the defendant that they had sold to Steever & Potts, Philadelphia, a lot of H. E. S. brand, and advised him to buy of that lot “ a ton or so for sample, should you wish to test the quality with a view to import this year.” The defendant having purchased of Steever & Potts, three tons, part of the lot, and finding the quality to be excellent, informed the plaintiffs of the fact, and ordered of them twenty tons of that brand. The question is whether this was a warranty by the plaintiffs to the defendant that the twenty tons should be in quality substantially as good as the iron purchased from Steever & Potts. We hold there was such warranty. True, it was not strictly a sale by sample, for the twenty tons had not been manufactured. It was more than a sale by sample. Something better than American iron was needed by defendant for use in his business. It could only be procured by importation, at a price in advance of American iron. He applied to the plaintiffs, manufacturers of the II. E. S. brand, who, knowing his wants, suggested that he buy, for the purpose of testing its quality, a ton out of a lot of that brand which they had sold to Steever & Potts. The defendant was not engaged in buying iron to sell it without changing its form. The name of the brand, to him and his customers, was nothing; the quality of the iron everything. No case has been cited, nor have we found one, opposed to the view that here was a warranty, only to be satisfied by iron equal in quality with that which the defendant had purchased from Steever & Potts. The Pennsylvania cases relied on by plaintiffs (Boyd v. Wilson, 83 Pa. St. 819, and cases there cited), though thought to be opposed to the current of authority (Benjamin on Sales, 4th Am. ed. by Corbin, § 369, note 26), are in no way in conflict with our view of this case. Moreover, if there had not been such warranty that the quality should equal the Steever & Potts iron, the plaintiffs, knowing the object which the defendant had in view in obtaining iron from the manufacturers in Sweden, would have impliedly warranted that the iron furnished by them was suitable for the purpose for which it was obtained, and free from latent defects. Rodgers v. Niles, 11 Ohio St. 48; Byers v. Chatpin., 28 Ohio St. 300; Randall v. Newsom, 2 Q. B. D. 102; Kellogg Bridge v. Hamilton (S. C. U. S.) 18 Cen. L. Jour. 150 ; Benjamin on Sales (4th Am; ed. by Corbin), § 988, note 35.

The defendant retains the property, and does not now seek to disaffirm the contract, but to enforce it by claiming damages, by way of recoupment, for the non-performance of the contract with respect to quality (as to which see par. 3 above) and as to delay (as to which see Ogle v. Vane, L. R. 3 Q. B. 272; Hickman v. Haynes, L. R. 10 C. P. 598; Tyers v. Rosedale Iron Co., L. R. 10 Ex. 195; cf. Plevins v. Downing, 1 C. P. D. 220). In view of the nature of the warranty, the defendant may use the iron in his business, and in this action for the price, recoup to the extent he has been injured by a breach of the plaintiffs’ warranty. Miller v. Eno, 14 N. Y. 597; Day v. Pool, 52 N. Y. 416; Gurney v. Railroad Co., 58 N. Y. 358; Pomeroy’s Rem. (2d ed.) §779. And see Timmons v. Dunn, 4 Ohio St. 680. Dounce v. Dow, 64 N. Y. 411, cited by plaintiffs’ counsel, is not in conflict with these cases.

In view of the warranty, the evidence as to the quality of the iron, and the evidence as to delay, there was error in rejecting evidence as to the value of the iron, with a view to recoupment. Whether there was such defect, and if so, what damage resulted from it, and whether there was injury from delay, and if so whether it had been waived, are questions for the jury. Besides, parts of the elaborate charge of the judge of the superior court who presided at the trial, are in conflict with the construction we place on the contract; and this also calls for a reversal.

Judgment reversed and cause remanded for a new trial.


source: Caselaw Access Project

author: Kennon, J.

license: Public Domain

text:
    Heirs of Israel Ludlow v. Devisees of Daniel C. Cooper.
    A partnership may exist in the purchase and sale of real estate.
    When the parties to such partnership agree that the real estate so purchased shall he considered personal property, it will be so considered and held in a court of equity.
    In such case, a settlement of the partnership concerns by the administrator of the deceased partner and the surviving partner, by which the administrator of the deceased partner relinquishes all claim to the .real estate, is binding on the heirs of the deceased partner, especially if made before the surviving partner acquires the legal title to such real estate.
    [Where the administrator of a vendee of real estate, in good faith, and when it might reasonably be considered for the interest of the heirs of the vendee to do so, rescinds an executory contract with the vendor, a court of equity will not, after the lapse of many years, disturb the contract of rescission on the application of the heirs.

      *Bill of review, filed in the old Supreme Court, in Montgomery county; reserved for decision in the old Supreme Court in ■ bank.
    A sufficient statement of the case appears in the opinion of the court.

      H. H. Hunter, T. Ewing, N. H. Swayne, for complainants.
    P. Hitchcock, H. Stanbery, Swan & Andrews, for defendants.
   Kennon, J.

This case stands upon a bill of review filed June 16, 1848, and an amended and supplemental bill filed November V, 1848, in the Supreme Court of Montgomery county. -

The original case was a bill filed by Ludlow’s heirs v. Letitia C. Cooper and others, claiming title to land through Daniel C. Cooper.

The bill claimed that the ancestor of complainants owned the undivided half of a large quantity of land, lying in and about the town of Dayton; that the strict legal title being in Cooper, he had sold and conveyed a portion of the same in his lifetime; that the residue of the land was held in trust by the defendants for complainants. The bill prayed an account of the "proceeds of the lands sold, and a conveyance of a moiety of the land unsold.

Upon a final hearing of the case in the Supreme Court in bank, at the December term, 1843, the bill was dismissed.

The bill now filed claims that the court erred in dismissing the bill; that the decree should be reversed on that account; that since the final hearing the complainants have discovered new and material evidence, which would have changed the aspect of the case on the original hearing, and would have entitled the complainants to a decree.

The first question to be determined is, whether the court in bank, upon the evidence before it, should have rendered a decree for the complainants instead of dismissing the original bill. In determining this question, we have looked into all the evidence with care, in order to see whether the Supreme Court was justified, upon the facts of the ease, in making the final decree.

*To understand more clearly the case, it may be useful to state that the original bill avers, that some time prior to or about the year 1801, Daniel C. Cooper, late of Dayton, in Montgomery county, now deceased, purchased from the United States (including certain pre-emption rights of individuals) a large quantity of land, near to and adjoining the present town of Dayton, amounting to more than three thousand acres, and being the same land referred to in the written agreement thereafter set forth. That shortly after making the said purchase, and before making any payments thereon, said Cooper entered into a verbal agreement with said Israel Ludlow, the substance of which was, that said Ludlow was to pay one-half of the purchase money and expenses, and be equally interested with the said Cooper in all the said lands, except certain tracts specified in the written agreement; that in pursuance of said verbal agreement, said Cooper and Ludlow proceeded to make improvements and dispose of lots by donation and sale, and to do ■divex-s other acts of ownership; in all of which said Ludlow parti•cipatod as joint proprietor with said Cooper, although the business was chiefly transacted by said Cooper, he having made the purchase •originally, axid residing at Dayton; that, petitioners are unable to state the exact amount of purchase money advanced by said Ludlow, but are informed and believe that he advanced more than his half, and thus brought the said Cooper largely indebted to him; that afterward Cooper and Ludlow entered into a written agreement, of which the following is a copy:

“Whereas, I, Daniel C. Cooper, of the town of Dayton, in the county of Montgomery, have purchased of the United States certain laxxds in the 7th range of townships, near to and including the town of Dayton, in the Miami Purchase, as may appear by the register’s and receiver’s office, and have also procured of the commissioners certain certificates of rights of pre-emption in the 7th and 8th ranges as aforesaid; now know ye, that I, the said Daniel C. •Cooper, for the consideration hereafter named, hath granted, bargained, and sold, and by these presents doth *grant, bargain, and sell, to Israel Ludlow, of Hamilton county, an equal moiety or half part of all said tracts purchased as aforesaid, or certificates taken as aforesaid, excepting and reserving the following tracts and town lots, viz: town lots Nos. 1, 2 and the fraction in front, 12, 63, •61, 65, and 66 ; also, all the lands east of Mill street, and north of them on the Main street, heading up Mad river, for the use of the mills; also, fractions No. 2, first town, and the east quarter of section No. 24, and fraction 23, and section 32, second town, and seventh range, and all the lots which settlers were entitled to by virtue of their first settlement.

“ The said Israel Ludlow, for the consideration of the aforesaid grant, doth agree to pay one equal half part or moiety of the purchase money for the aforesaid tracts, purchased as aforesaid, excepting for the aforesaid excepted tracts. The said parties are to b'e-equal in all advances toward the purchase money, as also in the proceeds of sale of said lands or any part of them,” etc.

Signed by the parties and dated December 13,1803

It is further stated, that at the time of the contract a large part of the purchase money had been paid, partly from advances made-by Ludlow, and partly by proceeds of sales of lots, and that shoi’tly after the balance was paid by the proceeds of sales; but complainants can not state the dates or the amounts of the several payments.. That on January 24, 1804, Israel Ludlow died, leaving heix’s, James-C. Ludlow, Sarah Bella Ludlow, and Max’tha C. Ludlow, infants, the eldest not exceeding six years of age, and Israel L. Ludlow, boxm after his death. That after the death of Ludlow, Cooper procured patents for all the lands in his own name in severalty; and continued to make sales uxxtil in 1818, when he died testate, making Joseph H. Crane, Horatio G-. Phillips, and James Steel, his executors, and devising his whole estate to his two sons, David Z. and Daxxiel C. Cooper. Daniel C. Cooper, the younger, afterward died intestate, leaving *his brother David Z. his sole hem at law. Subsequently, in 1837, David Z. died testate, making Alexander-Grimes and Edward ~W. Lewis his executors, and devising all his. estate to his wife, Letitia C. Cooper. - The executor of Daniel C. Cooper, the executors of David Z. Cooper, his widow Letitia C., and others, are made defendants.

Complainants further charge, that no part of the proceeds of the sale of said land, so far as the same was sold, were received by their ancestor during his life, nor by themselves since his death, nor has any part of the land been conveyed to him or them, nor-any account rendered. And they allege that they would long sineehave applied for relief, but they had no knowledge of the written agreement, the same having been mislaid or lost, a great length of time, and only discovered a few months before the commencement of the .suit, among the papers of their ancestor.

The defendants are called upon to answer under oath, and the-prayer of the bill is that the defendants may be decreed to pay such balance as may be found due on accounting, and to convey an undivided half of the lands left unsold.

After the bill was filed, and before the hearing, there was a ■considerable change of parties, by death, intermarriage, and otherwise.

Several of the defendants disclaim, others answer;

Those who answer, deny from information and belief nearly every material allegation in the bib, except the execution of the written agreement, dated the 13th of December, 1803; and so far as that agreement is concerned, it 'is claimed that Ludlow died about a month after the execution of the contract, and that neither he, in his lifetime, nor his administrators or heirs after his death, paid anything on the contract; that the bill is to be considered as a bill for the specific performance of a contract; that the lapse of time bars all the equity of the complainants ; that they are barred by the statute of limitations, and that the ^contract was re■scinded by Cooper and the administrators of Ludlow.

The Supreme Court in bank found, from the facts in the case, that Ludlow did not, in his lifetime, advance any money on the first installment, nor did his representatives since his decease pay any money to Cooper on the contract; that the first payment on the land had been made by Cooper in 1801, before the contract in writing was entered into ; that the other payments became due on the successive last days of December, 1803, 1804, and 1805, but wore not made until 1813, to which time credits had been extended by successive acts of Congress; that Cooper continued to reside on the properly in Dayton, treating it as his own, after the death of Ludlow; that some intercourse occurred between him and the administrators of Ludlow, toward the settlement of his accounts with the estate of Ludlow ; and Lane, C. J., who delivered the opinion of the court, says; I can not resist the conviction that Cooper and the administrators settled this, with other claims, and that the latter relinquished, as far as they were able, the interest of the estate of Ludlow in this land.”

Without, however, reciting the facts found by the court, or the evidence upon which the court based their opinion (a full report of which is found in 13 Ohio, 552), we think the court was fully justified in finding the existence of a state of facts which authorized and .required the dismissal of the bill.

The written contract between Ludlow and Cooper shows very ■clearly what the parties intended. They intended to be equal partners in the property. 11 They were to be equal in all payments toward the purchase money, as also in the profits or proceeds of the sale of said lands, or any part thereof.” They were to pay equally, and share alike in the profits of the sales of the lands, or any part of them; and if no profits, then they were to be equal in, the proceeds of the sales.

It was from the amount of money received from the sales of the-land that they were to ascertain how much each was to receive.

*The parties to the contract contemplated a partnership, in the-purchase and sale of real estate; and from the location of Ludlow in Cincinnati, and Cooper in Dayton, the place at which the town-lots and lands were situated, it is, to say the least, not improbable-that the parties understood that the patents were to issue in the-name of Cooper. The whole transaction would suggest that as the-proper course to be pursued.

If we are right in our construction of this written instrument, it becomes very material to ascertain whether the property thus purchased is to be, in equity, considered real or personal property;. and this question is one not to be answered without difficulty, for it can not be said that the decisions on this question have been, entirely uniform.

JStory on Partnership, section 93, says: “ Indeed, so far as the partners and their'creditors are concerned, real estate belonging to the partnership is, in eqriity, treated as mere personalty, and governed by the general doctrine of the latter; and so it will be deemed in equity to all other intents and purposes, if the partners themselves have, by their agreement or otherwise, properly impressed upon it the character of personalty. But a question has-been made whether, in the absence of any agreement or other act affecting its general character, real estate held as part of the partnership funds-ought to descend to the heir, or belong to the executor or administrator upon the death of the partner.” And he proceeds to say that there is a diversity of judicial opinion as well-as judicial decision upon that point, and that the doctrine, under these circumstances, must be open to many distressing doubts.

Kent, who seems to have examined the authorities on this point with care, says: “ If partnership capital be invested in land for the-benefit of the company, thought it may be a joint tenancy at law, yet equity will hold it to be a tenancy in common, and as forming a part of the partnership fund; and the better opinion would seem to be, that equity will consider the person in whom *the legal title is vested as trustee for the whole concern, and the property will be entitled to be distributed as personal estate.”

In the case of Pierce v. Trigg, 10 Leigh, 406, Judge Tucker says: “ It has been a vexed question in England, whether the interest oí the deceased partner in the real estate, and the proceeds of the sale-of that interest, belong to the personal representative or to the heir. The better opinion gives the fund to the former, since, upon familiar principles, as the land was purchased with the personalty and was brought into the firm as stock, it ought, as between the executor and the heir, to replace the fund withdrawn from the personal estate. By placing it as stock in the partnership fund, the deceased evinced a design to treat it as personalty, and it ought to go accordingly. The representatives of the deceased can claim it only as stock, and as stock in trade it is, ex vi termini, personal.”

The point has arisen several times in our own court, either directly or incidentally. Green v. Green, 1 Ohio, 135; Green v. Graham, 5 Ohio, 160. In this latter case, the court .seems to consider that where land was bought with partnership funds, the partners took as tenants in common; and if one partner died, his share would descend to Ms heirs.

The cases are numerous in which it has been held that real estate purchased with partnership funds and used as partnership property, descends to the heir, subject to the partnership debts.

Indeed, in all cases cited, the property was so purchased, and was either incident to or necessary in carrying on the partnership concern; and there was no express agreement that the real estate should be considered personal property and be disposed of accordingly.

In the case now under consideration, however, the entries were not made with partnership funds, nor were the lands to be used as a means of carrying on any partnership business other than the purchase and sale of real estate. It is very clear that, although the land was not purchased with partnership funds, but *was to be pmchased with the separate funds of Cooper and Ludlow in equal portions, the property was to be considered partnership property, so far as real estate could be so considered and treated; that it was, by the agreement, to be sold, and converted into money, and each partner to share and share alike in the profits, and, of course, to share in the losses. It is the very case put in Story, above cited, in which he says, in substance, that such real estate will, to all intents and purposes, be deemed personal property, if tbe parties themselves have by their agreement impressed upon it the character of personalty.'

The language of the agreement in this case is: “ The parties are to be equal in all payments toward the purchase money, as also in the profits or proceeds of the sale of said lands, or any part of them.” Taking this whole agreement together, there can be but little doubt but that the partners intended that this property should be sold as partnership property, and thereby converted, out and out, into personalty, and that either the surviving partner or the present representatives of the deceased partner could, in a court of equity, have compelled a sale and division of the profits. If so, it belonged in equity to the administrators of 'Ludlow, and not his heirs. But, if this should be carrying the principle too far, there is still less doubt that this land must be considered partnership stock or property, so far as to be held liable to the payment of partnership debts as well as the debts which, in settlement of the accounts between the partners, may be found due to either. Whether, therefore, by this particular agreement, the property is to be regarded as personal property passing to the administrator or passing to the heir, subject to the payment of debts and settlement of the partnership accounts, in either case the settlement of that account is a matter between the surviving partner and the administrator of the deceased partner, and the interest, if any, which the heir takes, is subject to that settlement. The settlement of the account is devolved upon the administrator and not the heir. In the case of lands held in ^common, at law, the several interests of the owners are definite and ascertained; in the case of partnership property, the several share of each partner is the residue of interest after the debts of the firm are paid, and the claims of the other partner are satisfied ; but this doctrine does not apply to partnerships in real estate, where, by the express agreement of the parties, the land is to be converted into personalty, and the share which each party is to receive is to be ascertained from the amount of money for which the land shall be sold. And although the legal title may be vested in one or more of the parties,' still a court of equity will consider the property to be what the parties themselves agreed it should be, and will enforce that agreement.

And here the question is presented, whether the contract of 1803 was ever rescinded or honestly understood by Cooper to be rescinded. "Upon this subject one of the counsel for complainants, in his argument, says: “ It will not be pretended, I presume, that there is any evidence tending to prove an agreement between the parties to the •contract, or their representatives, to rescind it. There is not, surely, any such evidence in the case — nothing that looks like it — at least, nothing beyond the letter of Cooper to Findlay, in-1806, in which he proposes to pay the estate $2,000, as a consideration, if the estate will agree to rescind the contract. There is not a particle of evidence to prove that this offer was entertained or accepted, and no circumstance exists from which its acceptance may be inferred. No credit is given by Findlay, in his account as administrator, for the $2,000, or any other sum, as having been received by him from this source, which ought to have been and no doubt would have been given, had any such payment ever been made. The fact that no such entry is found in the account, is pregnant evidence that the proposition was not accepted. Notwithstanding all this, the court, in the reported decision of the original case, assume and find that there must have been an agreement of rescission between Findlay, the administrator, and Cooper. It is almost too obvious that this conclusion of the court is unwarranted. It is ever to be regretted, *that in the grave decisions of our courts of final resort, such gross inaccuracy in matters of fact may be traced ; and such laxity be found to-exist in the application of legal principles as is manifest in reviewing the reported opinion in this case.”

The letter of Cooper to Findlay, one of the administrators of the ■estate of Ludlow, referred to in the argument of counsel, is dated in 1804 or 1806, probably in the latter year, and was brought into this case as evidence by the complainants. On the outside, it is addressed to James Findlay, and at the conclusion of the letter, “ the administrators.” So much of this letter as relates to this ■case, is in these words : I expected when Mr. Ludlow returned, he would have brought the certificates with him, but as he did not, I conclude that you and the rest of the administrators have thought best to relinquish the agreement made by Col. Ludlow and myself, respecting the former certificates and the town of Dayton, which I am perfectly agreed to, or I will give the estate $2,000 for the certificates, and to relinquish the agreement; but not my •claim against the company for the former certificates or their value, I will be down in a few weeks, and arrange my affairs with the •estate.” The Ludlow whose name is mentioned in this letter, we understand not to be tbe Ludlow who was one of the administrators of the estate. At the date of this letter, a brother of Ludlow deceased, Eindlay, and Mrs. Ludlow were the administrators of the estate of Ludlow. The heirs at law were all minors.

If we look at this letter without any preconceived opinions, we can not fail to see that the contract upon which the original bill in this case is predicated had been the subject of conversation between Cooper and Eindlay; that the agreement here referred to is the same agreement executed by Ludlow and Cooper; and that some propositions had been made by one to the other as to the terms upon which that agreement might bo rescinded or relinquished on the part of the estate of Ludlow. That there were in the hands of the administrators some certificates *which Cooper desired to have; that he expected when young Mr. Ludlow came from Cincinnati, the place where the administrators resided, he would have brought these-certificates with him — “Cooper expected he would have brought them;” that these certificates were not brought; and for that very reason Cooper came to the conclusion that the administrators had thought best to relinquish the agreement, respecting the former certificates and the town of Dayton, and to which relinquishment Cooper was perfectly agreed. Or ho was willing to pay the estate $2,000 for the certificates, and to relinquish the agreement, but was not willing to relinquish his claim for former certificates or their value. Erom this letter, the counsel for complainants claims that Cooper proposed to pay $2,000 to the estate as a consideration to relinquish this contract, and one reason assigned why the contract could not have been rescinded is, that no credit is given by Eindlay for the $2,000, or any other sum in his account as administrator of the estate of Ludlow as having been received from that source. If the contract was, in fact, rescinded upon the terms proposed by Cooper in his .letter to Eindlay, no-such account ought to have been found; for the very obvious reason that Cooper did1 not in his letter offer to pay the estate anything to-rescind or relinquish the contract. If certain certificates which Cooper expected Eindlay would send to him had been forwarded, then some arrangement or proposition which had been previously made would have been carried out; but as they were not sent,. Cooper came to the conclusion that the administrators had thought it best to relinquish the contract, and with which Cooper was- satisfied; or, Cooper proposed to give $2,000 to the estate for the certifi cates, and to relinquish the agreement. It was for the certificates, he proposed to give the $2,000. He expected the certificates, bnt as they had not come, he was satisfied that the contract should be considered rescinded. We think this letter admits of no other fail-reading. What these certificates were, or for what payments in land given, does *not very clearly appear; but we understand this letter to say, I will give you $2,000 for the certificates,, or if you keep the certificates, I am satisfied to consider the contract at an end, and do now so consider it.

There is no evidence in the case which satisfies this court, or-which ought to have satisfied the Supreme Court making the decree-sought to be reversed, that Cooper ever sought to conceal the existence of this contract -from the administrators or heirs of Ludlow. The contract itself was in the possession of Ludlow; it was, according to the claim of complainants, at a late day, found amongst his-papers. Cooper understood that the administrators knew of its existence, when he says to Eindlay, “ I conclude that you and the rest of the administrators have thought best to relinquish the agreement.” Cooper, in the very nature of things, must have supposed that they knew of the existence of a contract then, in all probability,, in their possession. There is evidence, under Cooper’s own signature, that he did not desire that Mr. Dayton, then of New Jersey, should know that Ludlow and Cooper had made the agreement. He says, in his letter to Findlay, dated on the same day on which he writes to Dayton, that “ for certain reasons I would thank you not to make known to Mr. Dayton that I have given to Col. Ludlow any writing respecting the town of Dayton.” These two letters are-both dated February 23,1804- — a short time after the death of Ludlow; but still, if we consider the other evidence in the case tending-to prove that Dayton expected at least to be, if he was not in fact, interested in the town of Dayton, there arises a very fair presumption that Cooper and Ludlow were both connected in the scheme of keeping from the knowledge of Dayton the existence of this last, written contract: and before the death of Ludlow, it is clear that. Cooper had no interest in keejfing the fact from Dayton except for-the benefit of Ludlow; because at that time there was neither motive-nor interest in Cooper, on his own account,, to do so, if it were true, in fact, that Cooper took one-half of the interest *in the land, and Ludlow the other, upon the principle claimed — that is, that. Ludlow really had but one-fourth, and Dayton the other. It would; not be easy to see wbat difference is made to Cooper, whether Ludlow held the half in his own right or in his own and that of Dayton. ' The probability is, that the suggestion of keeping this written contract from the knowledge of Dayton came originally from Ludlow. He had some interest in doing so; Cooper had not. So far as we ■can see, Cooper, before the death of Ludlow, had no interest in secreting, on his own account, this contract from Dayton.

But did Cooper intentionally conceal, or make use of any means to ■conceal, the existence of this written contract, from either of the administrators of Ludlow, or from the guardians of the minor children? We have no evidence whatever that he did any such thing, .and surely we are not permitted to make any such presumption from the mere fact that he, or he and his partner Ludlow, thought it best not to let Dayton know that a written contract had been made by Cooper and Ludlow.

The court in bank, we think, might fairly infer from the evidence, that Cooper never intended nor attempted to conceal from the administrators or heirs of Ludlow the existence of a written contract, not in the possession of Cooper, but in the possession of Ludlow;— the latter having it at the time of his death- — and which must have been known to the administrators, or at least may be fairly presumed to be in their knowledge or possession, more especially so when Cooper, in his letter to Findlay, expressly refers to this written agreement.

So, also, that court (notwithstanding the fact that the written agreement was found among the papers of Ludlow, after the decease ■of Cooper, and not lifted by him) might, with good reason, find that the contract, as between the administrators of Ludlow and Cooper, was rescinded and put an end to, and that Cooper so considered it when he said to the administrators. in writing: I conclude that you and the rest of the administrators have thought *best to relinquish the agreement made by Col. Ludlow and myself respecting the former certificates and the town of Dayton, which I am perfectly agreed to.” When we consider that this letter was written in the year 1804 or 1806 (and Burnet, who proves the handwriting of Cooper, says the letter bears date in 1804) ; that there was plenty ■ of other good land to enter at .the same price in Ohio; that those lands had not been paid for to the general government; that Ludlow had paid nothing to Cooper; that the estate of Ludlow was embarrassed for that the whole of the lands taken or might not turn out to be a profitable investment; it is not by any means an improbable conclusion, that the administrators of Ludlow would think best to surrender the whole to Cooper and relinqtpsh the contract. That the court in bank might fairly find, that up to this time, Ludlow had paid nothing, we think not an unreasonable conclusion. At any rate, we do not see that we'would be justified in saying that the court in bank, from the evidence before that court, erred in any of these findings.

If that court was right in these findings, and' if the true construction of the contract between Ludlow and Cooper was that the property was to be considered as between them personally, and the same was to be sold and converted into money, and the proceeds of sales, and not the lands itself, be divided between the parties, it was in equity, to all intents, and purposes, personalty, and passed to the administrators and not the heirs, and the administrators alone had the right to settle with Cooper; and having, according to the finding of the court in bank, made that settlement, the heirs have no right to make any claim on Cooper or his representatives, and the court in bank was right in dismissing the bill.

And if the court in bank had a right to consider the land as - partnership property and personalty, it makes no difference-whether a settlement of the matter took place or not; for the complainants would have no right, as heirs, and could not have • ^sustained the original bill, and the administrators would have been barred by lapse of time, from sustaining any action.

And, although I am well satisfied, as at present advised, that such is the law of this ease, and that in this country it ought to ■ be so held, especially where the certificates of purchase and partial payment, issued by general government, for land, were considered and transferred as personal property, passing by assignment from hand to hand, and the patents issued to-and in the-name of the assignees; yet, inasmuch as the court in bank did not put the case on that ground, nor was the point distinctly made by counsel, either on the hearing of the original bill or bill of review, we would not feel at liberty to place the case upon that gound alone, without notifying counsel that they might have an opportunity of being heard upon the question.

In the case in 3 Howard, 411, referred to in the argument of one of the counsel for the heirs of Ludlow, the question whether-■such property was personal or real, was made and argued in favor ■of the proposition that it was personal, by two of the counsel now -on ojjposite sides, but in that case on the same side of the case. This is still an additional reason why we should not put this case upon the ground that the interest of the parties in this land was, by the agreement, converted out and out into personal property, without first notifying the counsel that argument would be heard ■on this point.

It is, however, a very clear proposition, that this property, even if the patents had been issued to Ludlow and Cooper in their lifetime, would in equity be considered personal, so far as the partnership debts, due either to strangers or one of the partners, were •concerned; and that if it descended to the heirs, it would pass subject to these debts, and that the settlement of the accounts between the pai'tners, would be between the survivor and the administrator •of the deceased partner, and not the heir. It is also law in Ohio, ■that where the contract for a conveyance is executory, and the legal title to the property has not passed, *the administrator •of the deceased party possesses the power to compromise'and rescind the contract, where it may be reasonably considered for the inter•est of the estate to make such compromise; and a court of equity will uphold such settlement against the claim of the heir at law.

Vide Howard v. Babcock, 7 Ohio, 72.

Although the article of agreement contains words of a present .grant, yet, in order to construe the instrument, we must look at the situation of the property as well as other parts of the agreement. The title was in the general government, and no patent could issue until full payment was made; if such payment was not made, all claim to the title would be forfeited. Ludlow agreed to pay one-half of the purchase money not yet paid, as well as half of what had already been advanced by Cooper. If Ludlow and Cooper were still living, and the whole of the money had been paid by Cooper, and a patent issued in his name, could Ludlow file a bill in equity and compel Cooper to convey the undivided half to him, without averring either payment or readiness to pay on his part ? Would a court of equity so construe the contract, as to require Cooper to take the title from the United States to himself and Ludlow, whether Ludlow had ever paid one cent toward purchasing the property or not? Can it be that the covenants on the part of Ludlow and Cooper are wholly independent; that Cooper must take the title out in the name of Ludlow, or if taken in the name of •Cooper, that he must convey to Ludlow, and look to his covenant alone to compel Ludlow to make payment? We think that such is not the true construction of the agreement. In contracts for the conveyance of real estate, the language must be very clear indeed, if a court will compel a specific performance and conveyance of the land, without either a performance, or an offer to perform, the covenants on the other side. Courts incline to construe, wherever it can be done, such covenants to be at least mutual, and to' be performed at the same time. It is indeed argued with much force, that, in this case, *Cooper had the inchoate legal title, and by this contract he made Ludlow a joint owner of that title — not an agreement to convey, but an actual conveyance. This may possibly be so; but still the title itself being inchoate in Cooper, his right to the patent depended on his payment of the purchase money to the United States: and such payment was a condition precedent to his right to the legal title, or indeed to any title at all. Ludlow, by his contract with Cooper, was placed in no better situation than Cooper himself; and if ever he acquired the legal title, it would be upon the same terms upon which Cooper acquired title, namely, by payment of his proportion of the purchase money. We think that, as between Cooper and Ludlow, on the one part, and the United States on the other, the contract was executory, and depended entirely for its completion on payment being made to the general gov•ernment; that, as between Cooper and Ludlow, Ludlow was in no better situation than Cooper, and that his right to the legal title to the land depended on the performance of the contract on his part, viz., the payment of half the first installment, and half of each of the other three as they fell due, to the general government ; that the contract was executory, so far as vesting title in Ludlow was concerned, and that he substantially stood, in relation to Cooper, in the same situation that he would have stood, if the legal title at the time of the contract had been vested in Cooper, and Cooper had agreed to convey to Ludlow the undivided half of this land, upon making the payments mentioned in the contract.

If we are right in this construction of the contract, and if the administrators of Ludlow and Cooper did in fact agree to rescind the contract and retain the certificates; and if, in making this rescission, the administrators acted n good faith, and had reasonable grounds for supposing it was best for the estate of Ludlow.to do so, then, according to the decision in Howard v. Babcock, 7 Ohio, 72, a court of equity will not interfere to set aside such contract; nor will it in any manner aid the heirs in enforcing *a specific-performance and compelling a conveyance of the land, no matter-how valuable this land, after a lapse of thirty years, may have become. Dayton in 1803, was not the Dayton of 1836 ; and no man could with any degree of certainty foresee what Dayton would be-in twenty, thirty, or forty years after the contract was made.

The administrators of Ludlow, in 1804 or 1806, may well have supposed it would be better for the estate of Ludlow to hold on to-the land to which he had title, rather than to sell it for the purpose of acquiring title to other lands. There is no pretense that, in 1804, or even in 1806, Cooper had sold for cash enough of the land to pay out the balance; and it was impossible to say at that time that Congress would extend the time of payment until 1813, even by paying interest on the back installments, as the law afterward required. We can not say at this period what at that time ought to have been considered best for the interest of the estate of Ludlow. We do not know whether it might not, at that time, have been necessary to sell, for the payment of these installments, land of much more value than then land about Dayton was considered to be.

That the administrators of Ludlow (or at least Findlay) had conversed about settling this affair, we have no doubt; and that he supposed he had power to do so, we have as little doubt. If he, as well as the other administrators, had not considered the affair settled, in all probability wo should have heard more about the matter before the death of Findlay.

Upon the whole, therefore, we think that Findlay at least (if not the other administrators) as wel as Cooper, considered the whole-affair settled and ended, with which Cooper was well satisfied; and that the administrators did not sell to him the certificates for the $2,000, but retained them; and that nothing more was considered necessary to be done by the parties. Cooper was to pay for and keep the land.

Acting upon the supposition that the affair was settled, Cooper acquired the legal title, paid taxes, sold lots, made donations, and *in various ways spent his time and money to build up the town of Dayton. He kept no account, so far as we know, and for the very reason that lie considered the land his own. "We see no evidence of any attempt on the part of Cooper to act unfairly with either the administrators or heirs of Ludlow, or to conceal the contract from either the administrators or heirs of Ludlow. The purchase turned out to be a profitable one; but, according to the finding of the Supreme Court in bank, Ludlow had paid no. money, in fact, until the time of the rescission of the contract by Cooper and the administrators of Ludlow.

Upon the whole, we can not say that the court in bank erred in its finding of the facts, upon which the bill ought to have been dismissed.

As to the newly discovered evidence, it would scarcely be contended that it ought or could have any bearing on the case, even if competent evidence, if the court had found that the administrators and Ludlow had settled the matter, and surrendered the right of the estate to any interest in the contract.

Upon the whole, therefore, a majority of the court is of opinion:

1. That the newly discovered evidence, even if competent, could not and ought not to change the decree.

2. That the court in bank was justified by the evidence before that court, in finding the fact, that the administrators of Ludlow and Cooper, so far as they could do so, rescinded the contract.

3. That, at the time of the rescission, the administrators might with good reason have considered the settlement to be for the benefit of the estate and heirs.

4. That under such circumstances, after a great lapse of time, a court of equity ought not to interfere in aid of the heir at law, especially if there was neither fraud nor unfairness on the part of Cooper. That there is no evidence of any design on the part of Cooper to conceal the existence of this contract from' either the heirs or administrators of Cooper.

Bartley, J., dissented.


author: Kennon, J.,

text:
    John Dailey v. The State of Ohio.
    Section 42 of an “ act defining the jurisdiction and regulating the practice of probate courts,” passed March 14, 1853, providing that, “ upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue,” is a valid and constitutional enactment.
    A record showing that the accused “ did not demand a jury,” sufficiently shows a waiver of the trial by jury.
    Error to the probate court of Lucas county.

      The proceedings in the probate court were upon an information for selling intoxicating liquors, other, etc., contrary to the provisions. *of an act to provide against the evils resulting from the sale of intoxicating liquors, passed May 1, 1854.
    After setting out the information, the records hows the arraignment of Dailey, and his plea of not guiltv, and proceeds: “ And thereupon the case went to trial, and defendant not demanding a. jury, and the court, after hearing the proofs and allegations, did find the said John Dailey guilty, as set forth in the first count of the information against him, but not guilty as to the second count.. Whereupon,” etc.
    The defendant moved in arrest of judgment, but the motion was ■' overruled, and the defendant was sentenced to fine and imprisonment.
    To reverse this sentence, the present writ of error was sued out-

      James Murray, for plaintiff in error:
    I. The supposed law under which these proceedings were had was unconstitutional. (This argument was submitted before the decision of Miller v. State, 3 Ohio St. 475.)
    II. The record shows no sufficient waiver of a trial by jury-A court can not try such a cause without an express waiver, apparent in the record. The waiver will not be presumed.
    No argument was submitted for the state.
   Kennon, J.,

delivered the opinion of the court.

I. As to the first question raised by counsel, this court, in the case of Miller v. State, 3 Ohio St. 475, has already decided in favor of the constitutionality of the law, and being fully satisfied with that decision, we feel no disposition to reconsider it.

II. Is the statute, authorizing the probate judge to try the issue upon a plea of not guilty, constitutional? By section 5 of the bill of rights, in our present constitution, it is provided *that the right of trial by jury shall be inviolate. By section 10, it is-provided that in any trial, in any court, the party accused shall be allowed to have a speedy public trial by an impartial jury.

The. probate act confers certain criminal jurisdiction on the probate and then that, a plea other than a plea of guilty, if the defendant does hot demand a trial by jury, the probate judge shall proceed to try the issue. Swan’s Stat. 732.

Hoes this act in any sense interfere with the right of trial by a jury? If the act had provided, in express terms, that the accused might have his own choice of two modes of trial, either by the court or jury, as he might think proper, and if he supposed the court the safer mode of trial, should expressly waive his right of trial by jury, and request that the court should try the issue, it would be hard to see how his fight of trial by jury was violated. The provision of the constitution was intended to limit the power of the legislature in this particular, and prohibit it from depriving the accused of the right to have a jury of twelve impartial men to pass on his guilt or innocence. That right still exists; all he has to do is to demand a jury trial, and the law awards it to him; but if he will not demand such trial, then the law authorizes the judge to try the issue. The law says to the accused, in language which can not be misunderstood, “ if you wish to exercise your right to a jury trial, your right can not be violated; but if you would rather not be tried by a jury, you can waive that right, and be tried by the court. If you do not demand a jury, you shall be considered as waiving your right.” The accused does not demand a jury, but submits to be tried by the court; and after trial, and after he is found guilty, says “I have been deprived of my right of jury trial.” But who deprived him of that right? Surely, not the court nor the statute: he has clearly waived his right, and then claims that the law is unconstitutional and void because it permitted him to do so.

*We are of opinion that the statute deprived him of' none of his constitutional rights, and is therefore not unconstitutional.

The judgment is affirmed.


author: Thurman, C. J.

text:
    A. Merrick v. J. Boury & Sons.
    The findings of a court, when substituted for a jury, are entitled to the same consideration as the verdict of the latter; and it is well settled that a verdict will not be set aside, upon the ground of erroneous finding, unless it is clear that such is the case.
    It is only by force of an agreement of the parties, that the giving of an un-. sealed note by tbe debtor will be payment of a precedent debt. The burden of proof is upon the debtor, who must establish the agreement clearly; and the question whether ther.e was such an agreement, is one of fact to be determined by the jury.
    A Vendee of goods, subsequently to the purchase, gave his note for the price, but it was not received as payment. Afterward, the vendors, to whom it was payable, without any fraudulent purpose, and under an honest mistake of right, materially altered it. Held, that such alteration did not preclude a recovery upon the original cause of action, the precedent indebtness.
    In Error to the district court of Muskingum county.
    The record presents the following facts:
    In 1851, Merrick was indebted to Boury & Sons for goods sold :and delivered. Some difficulty or difference having arisen between 'the parties in relation to the price, character, and quantity of the goods sent to Merrick by Boury & Sons, Merrick, on the 17th of July, 1851, wrote to Boury & Sons, among other things, as follows: “ On the 22d of December, 1850,1 received your dispatch, authorizing me to retain the goods on a year’s credit. On the 22d of December, 1851,1 will therefore pay you the balance due, $548.04, but no more; and if you choose to call on Messrs. Slingluff & Ensey, 13 N. Howard street, they will hand *you my note for that amount, in full of account to date — not that I consider that amount ■due you in equity, but because T said I would pay you that much.”

    On the 7th of August, 1851, Boury & Sons answered the above letter, and wrote to Merrick on that day, acknowledging the receipt of his of July 17, 1851, in which, among other things, they say to Merrick: “ We have signed the receipt transmitted through Messrs. Slingluff & Ensey, and the note received of them for $548.04, has been duly passed to your credit; and as you are aware that our invariable custom is to make all drafts, notes, etc., due us, payable, with difference of exchange, on Baltimore, we have taken the liberty to add this small item to said note, not doubting it will fully meet your approval.”
    This letter was received by Merrick, no reply made to it, and nothing more heard Of the matter until about the time the note became due, when it was sent to the bank in Zanesville, where Merrick resided, for collection. When the note was due, Merrick called at the bank and offered to pay the amount, but not the difference of exchange. This the cashier refused to receive, and the note was returned to the After this Merrick refused to anything. Thereupon suit was brought; the declaration containing a count on the note, and the common counts, on the first of' which judgment was given for Merrick, and on the latter, a judgment rendered in the common pleas for the amount admitted to bodue Boury & Sons, by the letter of Merrick. An appeal was taken by him to the district court, where again judgment was rendered against him as above; and to reverse this judgment, this petition in error is brought.

      L. P. Marsh, for plaintiff in error:
    I. A promissory note, may not operate as’ payment of an open; account, unless it is given and received in payment. In the absence of express proof, the object of giving such note may bo determined from the attending circumstances. If given in payment *of a pre-existing debt, it operates as an extinguishment of such, original debt, upon which no action can thereafter be maintained, the holder being left to pursue his remedy upon the note alone.. Story on Prom. Notes, sec. 104; Riley & Van Amringe v. Anderson, 2 McLean, 594.
    II. In the absence of any express agreement, or agreement implied from the attending circumstances, that a note is given in payment of a pre-existing debt, it not unfrequently, as in this case, maybe held to effect an accord and satisfaction of such pre-existing debt.. Harper v. Graham, 20 Ohio, 117, citing Brooks v. White, 2 Met. 285 ; Sibree v. Tripp, 15 Mee. & Welsb. 37; Boyd v. Hitchcock, 20 Johns. 76.
    III. If the note was given in payment, or if there was effected; an accord and satisfaction of the original open account, the plaintiffs can only recover upon the note. The note was altered in a material part by-the plaintiffs, after they received it, and such alteration was-without the knowledge or consent of the defendant: this avoids the note, and does not revive the original account. Being void for one purpose, the note is void for all purposes, and is incompetent evidence. Martindale v. Follet, 1 N. H. 99, and cases there cited.
    IV. The fraudulent alteration of a note in a material part by the holder, not only avoids the note, but prevents a recovery upon its. original consideration. Master v. Miller, 4 D. & E. 329.
    V. No recovery can be had upon the note for two reasons: 1. Because the note as altered is not the contract executed by the defendant; 2. Because of the fraudulent alteration.

      YI. The fraudulent intent is presumed; the legal effect is a fraud mpon the defendant, unless the alteration is made with his knowledge and consent.
    Counsel cited: Anderson v. Langdale, 23 Eng. C. L. —; 2 Barn. & Adol. 660; 10 Missouri, 348; Newell v. Mayberry, 3 Leigh, 250 ; Mills v. Starr, 2 Bailey, 359; 2 Barb. Ch. 120, and notes and cases there cited.

      *Geo. James, for defendants in error.
    I. That the note of even the original debtor may be given to the •'Original creditor in payment of a pre-existing debt, and is so received in payment by the creditor, will be payment, there is no doubt. But it must be clearly shown that such was the intention; as between the original parties, the giving of the note of the debtor is never presumed to be in payment. 1 Cow. 359; Porter v. Talent, lb. 290.
    II. But this question was one oí fact, submitted to the court as though to a jury, and they have found against the supposed intention; and the question can not be reinvestigated on a writ *of error.
    III. Every alteration of such an instrument as that here in ques•tion does not render it absolutely void, for all purposes, and as to ■,all parties. The instrument is not affected unless the alteration be ■material, and not then, if the alteration was made before it was ■ issued, or to correct a mistake,' or by the consent of the parties (Smith Merc. L. 266), or to make instruments conform to the ‘Original intention of the parties (3 Shepl. 357; 1 Denio, 239; 10 Wend. 93); or if made with an honest intention. 15 Pick. 239; 20 Vt. 205; Beatman v. Russel, 18 lb. 466; Miller v. Greenleaf, Penn. 4 (citing 1 Greenl. 73, 334; 8 Conn. 75; 1 Shepl. 386; 2 Mason, 478; 6 Ala. 513; 8 Dana, 98; 2 N. H. 543, and other cases) ; Provost v. Gratz, 6 Wheat. 502; Nevins v. DeGrand, 15 Mass. 436; Thornton v. Appleton, 29 Maine, 298 ; Rollins v. Bartlett, 9 Shepl. 317; 3 Barr. 379; Adams v. Frye, 3 Met. 109. That a material ■alteration may vitiate the note or bond as to some of the parties, but not as to others, see in State v. Van Pelt, 1 Smith, 118; Prevost v. Brown, 2 Dougl. 9; Davis v. Coleman, 7 Iredel, 424.
    Counsel also cited Waring v. Smith, 2 Barb. Ch. 119; 3 Barb. S. C. 484; 1 Greenl. 7; 8 Cow. 71; 22 Wend. 388; Agriculturist etc. v. Fitzgerald, 4 Eng. Law and Eq. 349.
    IY. The alteration, though it may vitiate the instrument of *writing, yet does not prevent the party from recovering on> the original consideration/ where such consideration existed prior-to, and is independent of, the instrument of writing — is not merged-in, or discharged by, such instrument; or when the debt, duty, or-obligation, is not created by the instrument — but it is given merely' as evidence of such consideration. Atkinson v. Hawden, 6 Adol. and El. 728; Sloman v. Cox, 1 Comp. Mee. and Rosc. 471; Suttan v. Toomer, 7 Barn. and Cresw. 416; Smith’s Merc. Law, 266, Note R.; Clude v. Smale, 17 Wend. 238; Chitty on Bills, 6 Am. ed. 100.
    Y. It is doing no violence to the evidence or facts stated in the' bill of exceptions, to say that the court properly inferred the assent of Merrick to the alteration. In the very letter in which Boury &. Sons acknowledge the receipt of the note, they inform him of the-alteration, and he never objects to it, until after the note is due.. Six months aftei it was made, and when the note became due, with a lull knowledge of the alteration, he went to the bank and acknowledged his liability, by offering to pay it, without the difference of exchange. This is very similar to the ease of Humphreys v. Guillon, 13 N. H. 385.
    YI. Assent may be before or after alteration, and proved by parol. 9 Cranch, 28; 4 Johns. 54. It may be implied from the nature of the alteration, and from the custom or mode of business-between the parties, 2 N. H. 545. The letter of Boury shows that the alteration was made to conform the note to what was usual between the parties, and with what they presumed to be the assent, of Merrick.
   Thurman, C. J.

The errors assigned amount in substance to-this, that the evidence did not support the action, and hence, Merrick’s motion for a new trial was improperly overruled, and the-judgment against him improperly given.

The special count in the declaration was upon the note as-altered, and as the court found for Merrick, upon this count, they *must have held that the alteration was made without his authority, and was never ratified by him. But whether the verdict for Boury & Sons, upon the common counts, was upon the note as-it existed previous to the alteration, or upon its consideration, the original indebtedness, does not appear by the record. Let it have been upon either, or even upon the note in its altered shape, the-common counts were entirely sufficient, and the judgment can not. be disturbed, unless tbe verdict was clearly against the evidence. Thus, if the verdict can be sustained only upon the grounds that the note was not taken in payment of the antecedent debt, and that the alteration was made without any fraudulent purpose, it must be presumed, upon a petition in error, that these facts were found by the court, and this finding will not be disturbed merely because we might doubt its correctness. The findings of a court, when substituted for a jury, are entitled to the same consideration as the verdict of the latter; and it is well settled that a verdict will not be set aside upon the ground of an erroneous finding, unless it is clear that such is the case. We are inclined to think, however, that there is no necessity, in the present case, for an application of this rule; for we can hardly say that the testimony would warrant a finding that the note was taken as payment, and as to the alteration, we see no reason at all to believe that it was made with a fraudulent intent.

In Porter v. Talcott, 1 Cow. 380, it is said: “ The law is well settled, that a note given by the debtor for a precedent debt, is no payment of the original demand, unless it is expressly agreed to receive it in payment;” and this is the doctrine of very many cases. See Tobey v. Barber, 5 Johns. 72, and the cases there cited. In Johnson v. Weed, 9 Johns. 310, it was held, that the agreement must be “ clear and special,” otherwise the paper will be no payment. y,

On the other hand, it has been ruled, that “ the object of giving a note may as well be ascertained from circumstances as from an express agreement.” Riley & Van Amringe v. Anderson, 2 McLean, 594, *and the same doctrine is asserted in Story on Promissory Notes, sec. 104.

But whatever may be the law of evidence, nearly all the cases concur in holding that it is only by force of an agreement of the parties, that the giving of an unsealed note by the debtor will be a payment; that the burden of proof is upon the debtor, who must establish the agreement clearly; and that the question whether there was such an agreement is one of fact, to be determined by the jury.

How then stands the present case ? It is not pretended that there was any proof of an express agreement that the note should be payment, and we think it must be held that it is not clearly inferable from the circumstances. From what can it be inferred ? The answer of counsel is: “ That the plaintiffs proposed to extend the credit to December 22, 1851; to. this the defendant acceded, and sent them his negotiable note, payable at that time for a less sum than the plaintiffs claimed to be due, stating in his letter that he would pay that sum in full of account, if the plaintiffs, chose to' call for his note, and no more. The plaintiffs received the note,- and say, in a letter subsequently written, “we have passed it to your credit.”

That there was an extension of credit, as here supposed, is not clearly established by the testimony, for it does not appear when the original indebtedness was payable, nor that it was payable before the time fixed for the maturity of the note. But let that be granted, and it by no means (.follows, as a necessary consequence, that the note was taken in payment. Speaking upon this point the Supreme Court of New York, in Tobey v. Barber, supra, said: “ He [the "creditor] is not obliged to sue upon it [the note]. He may return it when dishonored, and resort to his original demand. It only postpones the time of payment of the old debt, until a default be made in the payment of the note.” And in Clark u. Young, Crancb, 181, it was held that “ it was not necessary for the plaintiff to offer to return the note, to entitle him to bring suit for the goods sold.”

*That the note was negotiable is a circumstance entitled to no weight in this inquiry. In almost eyery case of this nature, to be found in the books, the note or bill was negotiable. ' ■ ‘

That it was for a smaller sum than the creditors claimed, is undoubtedly true, but that it was for less than the amount actually due, does not appear. It was for precisely the amounDwhich the plaintiff in error said was “ the balance due,” though he thought it too large “ in justice or equity by $150.” What significance, then, has the fact that it was for less than the amount claimed ? Plainly no more than this, that the creditors agreed to accept the sum admitted to be due. It has no bearing upon the question whether they agreed to take the note in payment of that sum.

But were it admitted that the note was for less than the actual indebtedness, it was for the court, to whom the cause was submitted, to decide whether there was an accord and satisfaction that extinguished the original debt, or whether the creditors merely relinquished a part of their claim, and took the note as a collateral security for the residue; and if were of the latter we mot say, upon the testimony, that they were clearly in the wrong.

That the note was “ passed to the credit” of the maker — by which we understand that it was put to his credit on the creditors’ books— is, in our judgment, a very slight circumstance; and just what usually takes place when a note is given to a merchant, A receipt ■in full of the original account is a much more pregnant instrument, and yet that is not conclusive that payment was made (5 J. E. 72), It may be sufficient to shift the burden of proof to the creditor, and possibly would have done so in this case had the receipt that was given been produced. But it was not produced, and therefore Boury .& Sons were under no necessity of explaining it; indeed, its non-production by Merrick raises a presumption that its terms were -unfavorable to his defense.

Upon the whole, as before said, there was no proof of an *express agreement that the note should be payment, nor can such an ¡agreement — or, what is substantially the same thing, an aecox-d and ¡satisfaction that extinguished the precedent debt — be clearly inferred from the circumstances of the case. It follows, that a judgment might well be rendered upon the original indebtedness, unless the .alteration of the note not only destroyed it, but also the original cause of action. That it had that effect, is ably contended by counsel, and, in support of his point, he cites the following authorities; Master v. Miller, 4 D. & E. 329; Alderson v. Langdale, 3 Barn. & Adol. 660 ; Martindale v. Follett, 1 N. H. 95 ; Whitmer v. Frye, 10 Missouri, 348; Newell v. Mayberry, 3 Leigh, 250; Mills v. Starr, 2 Bailey, 359; and Waring v. Smith, 2 Barb. Ch. 119.

The case of Master v. Miller is not in point. It was an action by .an indorsee against the acceptor of a bill of exchange, which had been materially altered while in the hands of the payees, and before the indorsement.

The main question was, whether the rule that an alteration, in a material part, of a deed, avoids it, applied to instruments not under” ¡seal. And the court held that it did. Kenyon also held that the plaintiff could not recover upon the ground of money paid by the payees to the acceptor, or had and received by the latter for the use ■of the former, because such a right of action was not assignable-He intimated, however, that possibly an action might be framed to .give the plaintiff some remedy. Grose, J., thought there could be no recovery upon the general counts, “because it is not stated as a fact in the verdict that the defendant received the money, the value-of the bill.” Ashhurst, J., expressed no opinion on this point, while Buller, J., maintained, that the plaintiff was entitled to recover, either on the bill in its original shape, or on the money counts.

The case of Alderson v. Langdale was this: “The vendee of goods paid for them by a bill of exchange drawn by him on a third ^person, and after it had been accepted the vendor altered the time of payment mentioned in the bill, and thereby vitiated it. Held, that by so doing he made the bill his own, and caused it to operate as a satisfaction of the original debt, and that consequently he could not recover for the goods sold.” The court likened the case to that in which the holder of a bill “ makes it his own by laches, as by not presenting it for payment when due,” and upon that principle held that the plaintiff could not recover. It is very evident, therefore, that the ground of the decision was the injury done to the drawer by the release of the acceptor, and that ground is no doubt quite sufficient. But here no third person has been released, and no-injury is done to Merrick by compelling him to pay what he justly owes.

In Whitner v. Frye, the alteration was of a bond. Of course there was no original cause of action to fall back upon. If a precedent debt formed the consideration of the bond, it was merged in it, because it was under seal. If there was no precedent liability, then the bond created the only liability that ever existed, and that being avoided by the alteration, there could be no recovery.

The same remarks apply to the case of Waring v. Smyth, in which the alteration was of a bond and mortgage; and to Miller v. Starr, in which a note under seal was altered.

The cases of Newell v. Mayberry, and Martendale v. Follett, in effect decide nothing more than that where a written contract has been fraudulently altered, the party guilty of the alteration can not recover upon the contract as it existed before it was altered. Neither-of them was a case where there was a precedent liability; in each, case the only contract between the parties was the written one that, was altered, and that being vitiated by the alteration, it was very properly held, that there could be no recovery. It is nof to be-denied, however, that the language of the judge who delivered the opinion in Martendale v. Follett, goes somewhat further, and, unless-restricted to the facts of that case, *might seem to support the-present defense. But before we yield our assent to a decision that is not binding upon us as authority, we must be satisfied of its correctness, and if this is true in respect to decisions, a fortiori is it. true in regard to dicta.

It is thus apparent that neither of the cases cited by the plaintiff in error is directly in point, and to the reasons already given why they are not so, may be added another, namely, that in neither of them was the presumption of & fraudulent alteration rebutted by the: proofs.

But the case of Atkinson v. Hawdon, 2 Add. & Ell. 628, 29 Eng. Com. Law, 169, is directly in point, and fully sustains the judgment, under consideration. It was an action of assumpsit by vendor-against vendee, and the declaration contained two counts, one upon a bill of exchange that had been given by the vendee for the price ■■ of the goods, and the other for goods sold and delivered. The bill, had been materially altered by the payee, the vendor, without the privity or assent of the drawer, the vendee. Held that the bill was. thereby vitiated, but that the plaintiff was entitled to recover upon, the common count.

This ease was approved and followed by the Supreme Court of New York, in Clute & Bailey v. Small, 17 Wend. 238, the court, adding, however, that “for aught that appeared, the alteration was. made under an honest mistake of right.” And this qualification the court appears to have thought was necessary, holding, it would seem, that when the alteration is in fact fraudulent there ought to-be no recovery, but that when made without any fraudulent purpose there may be a recovery upon the original cause of action.

We have no hesitation in going to this extent, and upon principle, do not see how it can be avoided. It is difficult to perceive-how the destruction without fraud, of a mere security given by the-debtor himself, and the destruction of which can in no event prejudice him, can operate to discharge the precedent debt. Inasmuch, then as we are well satisfied that the alteration ini ^question was made under an honest mistake of right, we are of the opinion that the plaintiffs below were entitled to recover, upon the original cause of action, the amount admitted to be due and for which the-note was given. Whether they could have recovered upon the note-as it existed before the alteration, is a question upon which wo express no opinion. Many authorities are cited by the defendant in. error to show that, as the alteration was not fraudulent, there could: be such are covery, but it is unnecssary to consider them. It may/ .be as well to remark, however, that tampering with a security, however honestly, is a dangerous thing, and ought not to be en- . couraged.

Judgment affirmed.