author: Johnson, Chief Judge.

text:
    Rosenthal v. Mayhugh.
    1. If a husband leaves his family and usual place of residence, and goes to> parts unknown, or a distant state, and is not heard from for a period of seven years, a presumption arises that he is dead.
    2. Where such presumption exists, and where the husband has abandoned his wife and minor children, without other means of support than the house and lot on which he resided before such abandonment, she may act and contractas a, feme sole.

    3. If in fact the husband is not dead, yet, in such case, she is capable of-' binding herself, by way of equitable estoppel, by her acts and contracts,, as fully as if she were a feme sole.

    4. And if she join with the children, who have come of age, in order to induce a sale of said real estate for their mutual benefit, in representing' that he is dead, and thereby, and for value received, effects a sale of such real estate, and also joins them, as widow, in a conveyance in fee, with covenants of general warrant}*, and the contract is fully executed by the purchaser: Held, That although the husband be living, and although such conveyance does not operate as a release of her inchoate right of dower, yet she is barred by way of equitable estoppel from treating her contract as a nullity, and from asserting her right to have dower assigned, upon the actual death of her husband.
    5. It is not necessary to constitute such equitable Estoppel that a party should design to mislead ; it is enough if the act or declaration was calculated to and did in fact mislead another, who acted in good faith and-with reasonable diligence.
    Error to the District Court of Hamilton county.
    Clarissa Mayhugh. filed her petition for dower in certain-described lands in Cincinnati, of which, she claims that her late husband, George W. Mayhugh, was, during coverture,, seized in fee.
    Rosenthal, defendant in error, by his answer, claims to own and bold possession of said lands free from such dower. He admits that prior to 1867, George W. Mayhugh, the husband of Clarissa, was seized of said lands,, but avers that on the 8th of February, 1867, Clarissa Mayhugh, and Charles R. and Benjamin F. Mayhugh, sons of herself and said George W., who were then of age,, residing in Cincinnati, represented to one John C. Robinson, the grantor of this defendant, that said George 'W. was then deceased; that he had gone to California many years before .and had died intestate some twelve years before, and that, relying on these representations, Robinson exchanged other lands for these. This exchange of lands was consummated by Robinson conveying to the plaintiff his lands, and receiving from the plaintiff and the two sons a deed in fee ■simple with covenants of general warranty for the land in controversy, and by like deed Robinson sold and conveyed the same to defendant, Rosenthal, and that afterward said .George W. Mayhugh unexpectedly returned and claimed the land; that Robinson, by way of compromise, paid him •$3,000, and received from him a quit-claim deed.
    The defendant further alleges that, in this exchange of property, Robinson paid at the rate of $7,000 for this property, and that, after expending about $500 thereon, sold it to.defendant for $6,400, who has expended thereon about $500, and that now it is not worth more than $5,500 or $6,000, and that the representations of said Claiissa, Charles, and Benjamin, touching the death of said George W. Mayhugh were false, and that he believes they knew them to be so.
    It is further alleged “ that at the time of such conveyance .and for more than seven years previous thereto, the said George ~W. Mayhugh had abandoned and deserted his wife, the said Clarissa, and leaving her no means of support excepting said premises, of which defendant admits the said George W. Mayhugh was seized in fee at the time •of his departure as aforesaid, nor had she other means of ■support. And further, he says that he, the said George, had gone to a distant state more than seven years previous to said conveyance, and that during such time no tidings had been received from him by his family or relatives, nor had they any knowledge of his whereabouts.”
    The reply puts these allegations in issue.
    The cause was submitted to the court, and upon request the facts and law were found separately, as follows :
    “ That in the year 1857, and for long previously, the plaintiff was the wife of George W. Mayhugh, and lived with him on the premises described in the petition, which he owned in fee; that the said George W. Mayhugh went to California, leaving his wife and their two children no' other means of support; that he wrote to her from time to time, sending money for current subsistence; that his last letter was dated February 15, 1859, and arrived in due-course of mail; that after this letter no further communication of any sort was received from him, nor anythin gheard of him ; that the plaintiff took her adult boy from school, rented out part of the house, and took in sewing,, and so supported herself and family.
    “ That afterward, in February, 1867, the plaintiff and her sons were convinced that the said George was dead, and determined to sell the premises and purchase a home in the-country.
    “ Seeing the farm of one J. G. Robinson for sale, the-plaintiff sent one of her sons to the said Robinson to examine the farm and propose an exchange of the premises described in the petition for the said farm; that the said: son and the plaintiff represented to the said Robinson that the said George W. Mayhugh was dead. The plaintiff also-represented to the attorney employed by said Robinson to-examine the title that her said husband was dead. She did. not exhibit the letter of February, but stated that was the-last news she had of him, and named the place in California where her said husband had died. Thereupon the said Robinson conveyed to the said plaintiff his farm, and the-plaintiff and her sons, who had now become of age, conveyed to the said Robinson, by deed of general warranty, the premises described in the petition, describing themselves: in the said deed as the said widow and heirs of George ~W. Mayhugh, deceased.
    “ The parties went into possession of their respective purchases, and afterward, on the 15th day of April, 1867, the said Robinson, for full value, conveyed the said premises to the defendants by warranty deed.
    “ That afterward, in the autumn of the same year, the..said George W. Mayhugh reappeared in Cincinnati, and brought suit to recover the premises from the defendant, and after trial had, and finding in his favor by the court on submission, the said Robinson, warrantor, paid $3,000 to the said George W. Mayhugh, and the said George Mayhugh conveyed the said premises by deed of quit-claim, to the said Robinson, whereupoh said suit was, by the consent •of the parties, dismissed, to which suit the said Clarissa A. Mayhugh was not a party; that the said George ~W. Mayhugh, after his return, did .'not live with the plaintiff or visit her, and he afterward, on the 12th day of January, 1873, died and left all his property to the plaintiff and their children.
    “And for conclusion of law, the court finds that upon the said facts the plaintiff ought not to recover as she claims. And thereupon the plaintiff’ moves the court to set aside the said finding and for a now trial, which motion the •court overrules, and to which overruling the plaintiff ex-■eepts. And thereupon it is considered that the defendant ret over of the plaintiff’ his costs herein exjoended, and go hence without day. To which finding, judgment, and ruling plaintiff excepts.”
    Upon error to the district court this judgment was re-. versed, and dower was adjudged to said Clarissa. This proceeding is to reverse that judgment.

      McGuffey, Morrill § Strunk, for plaintiff in error.

      L. French, for defendant in error.
   Johnson, Chief Judge.

At the time this deed was made by Clarissa Mayb ugh and her sons, she was a married woman, though desei’ted and abandoned by her husband, whom she supposed dead.

The sons, being the only heirs apparent to their living father’s estate, should he die.intestate, had only a naked possibility, not coupled with any interest, and hence their •conveyance passed no title or intei’est in the laud. But as the deed contained covenants of general warranty, these covenants would, liad the land descended to them, have operated by way of estoppel, to pass their title to their grantee, his heirs or assigns. Hart et al. v. Gregg, 32 Ohio St. 502.

What, then, was the effect of this deed under the special circumstances of the case, upon the right of Mrs. Mayhugh to dower ?

It is too firmly established in Ohio, to admit of discussion, that a married woman, living with her husband, is, at common law, under the disabilities of coverture, and that no agreement of hers, for the conveyance or incumbrance •of her real estate or of her expectant dower in her husband’s, however solemnly entered into, could be enforced by a bill for specific performance, and that she can .only dispose of or incumber it in the mode prescribed by statute. Purcell v. Goshorn, 17 Ohio, 105; Miller v. Hine, 18 Ohio St. 565; Todd v. Pittsburgh R. R. 19 Ohio St. 526.

These, and other cases relied on by' counsel, are based on the ground that the wife is under all the disabilities of coverture.

It is also well settled in Ohio, and the principle is well supported by decisions in other states, that while a married woman’s covenants in a deed in which she joins with her husband are invalid, and can not be made the foundation of an action against her for a breach, yet, as in the case of an expectant heir, they operate by way of estoppel on her after-acquired title. Hill v. West, 8 Ohio, 222 ; Fowler v. Shearer, 7 Mass. 21 ; Colcord v. Swan, 7 Mass. 291; Massie v. Sebastian, 4 Bibb. 436; Nash v. Spofford, 10 Met. 294; Nelson v. Harwood, 3 Call, 342 ; Wadleigh v. Glines, 6 N. H. 18.

If such is the effect of covenants in a deed properly executed by a married woman, acting under all the disabilities of coverture, a fortiori, it would seem she could be es-topped by such covenants where no such disabilities, in fact, existed. And if the covenants of an heir apparent estop him, though his deed is void as a. conveyance, because he has no vested interest, why should it not estop her, who has an inchoate right of dower ?

Of these questions in their order :

First. As to the wife’s capacity to act and contract, aside, from the character of the interest or estate she is disposing of; and,

Second. As to the nature of the wife’s interest which shespught to convey.

First. As to Mrs. Mayhugh’s capacity to act in the premises. The special circumstances of this case are, that in 1857 the husband went to California, leaving his wife and two children living upon the premises in question, with no-other means of support; that he corresponded with his wife-until February, 1859, sending money for her subsistence, after which nothing further was heard or known of him until the fall of 1867, when he returned to Cincinnati; that in February, 1867, eight years since he had been heard from, the wife and the two sons, then of age, being convinced that he was dead, determined to sell the property and buy a home in the country, and for that purpose represented to Robinson, with whom the exchange of property was made, that he was in fact dead; that on Mayhugh’s subsequent return, he neither lived with nor visited his wife, but. brought suit to recover the premises from the plaintiff in error, and, after a finding in his favor, Robinson, to make good his warranty to Rosenthal, paid Mayhugh $3,000-for a quit-claim deed, and the cause was dismissed. Mrs.. Mayhugh rvas not a party to that suit.

It is alleged in the answer, and not denied, that the husband, more than seven years before the deed of the wife- and sons, had absconded and deserted his wife, leaving her no means of support except said premises, and that during that time, his wife had no knowledge of bis whereabouts.

Speaking for myself only, I should be strongly inclined to hold that, under the special facts of this case, the wife had an implied authority, in equity, to incumber or convey this property, if necessary for the maintenance and support of herself and minor children. He was, in law, bound to support them, an;d I am unable to see why, when he has permanently abandoned them, leaving no means for their maintenance except this property, the wife has not an implied authority, as his agent, to sell or incumber his interest in this land, if necessary to provide such support for her and his minor children.

"While such a sale or incumbrance might not, under the rigid rules of the common law, be binding on him, yet, in a court of equity, the highest considerations of public policy" and social duty, would dictate that he should be estopped from recovering the property which had been devoted to the fulfillment of those solemn obligations he had wantonly repudiated.

Waiving this view, we come to the question of the wife’s power over her interest in the property.

The disabilities arising from coverture, rest on the common-law theory of the marriage relation. By marriage, the legal existence of the woman is suspended or, at least, incorporated into that of the husband, under whose protection or cover she acts.

It is said these disabilities are, for the most part, intended for her protection and benefit.” 1 Black. Com. 445.

As a logical deduction, it follows, that when this dominion of the husband, and this protecting care permanently ceases by the death of the husband, whether natural or-civil, or by his being exiled or banished, or where he has: deserted and abandoned his wife, leaving her to maintain herself, the disability of coverture ceases, cessante ratione,. cessat ipsa.

There is a wide difference between the powers of a married woman under such circumstances and-those where the marriage relation exists in fact, as to the wife’s capacity to contract, sue, and be sued.

In Gregory v. Paul, 15 Mass. 31, it is said, “ when the husband had deserted his wife in a foreign country., and' she had thereafter maintained herself as a single woman, and for five years had lived in that commonwealth, the husband being a foreigner, and never having been in the United States, she was competent to sue and be sued as a feme sole.”

It is there said that the common-law rule was relaxed from necessity, where the reason upon which it was founded ceased to exist, as, where the husband was exiled, or had abjured the realm, she might sue for her dower as a widow. “In such case, also, she has been permitted to alien her land, without her husband; and in such cases she is exempted from the disabilities of coverture. She may maintain trespass, she may sue for her jointure, and she may be sued as a feme sole. She may also make her will, and she might, in all things, act as if her husband was dead, and that the necessity of the case required that she should have such a power.”

The reason for this is forcibly stated by Putnam, J.: “ Misc.able, indeed, would be the situations of these unfortunate women, whose husbands have renounced their society and country, if the disabilities of coverture should be applied to them during the continuance of such desertion. If that were the case, they could obtain no credit, on account of their husbands, for no process could reach him ; and they could not recover for a trespass upon their person or their property, or for the labor of their hands. They would be left wretched dependents upon charity, or driven to the commission of crimes to obtain a precarious support.”

Numerous cases might be cited in support of this doctrine, which we need not notice. They have been examined at length in Benadum v. Pratt, 1 Ohio St. 403. In that case, the wife had, by the gross abuse of her husband, been compelled to live separate from him, so that a separation defacto existed, she maintaining herself, and having specific property decreed to her as alimony. It was held that she might sue at law as a feme sole in regard to such property.

After an examination of the authorities, it is there said that “It is established by well adjudicated cases in the courts of the different states of this Union that, not only where the marriage relation is suspended by act of law, but where the husband is a foreigner, residing permanently abroad, or where, by his cruelty, a separation is forced, aud the wife removes to another state, and maintains herself as a single woman — in either of these cases, whether the wife have or have not a separate allowance, she is entitled to sue and be sued as a feme sole. And this right extends to whatever contract she may make, and to whatever property or interest she may have.”

In Bean v. Morgan, 4 McCord, 148, it was held that, if the husband departs the state, with intent to reside abroad, and without the intention of returning, his wife becomes competent to contract and to sue and be sued as a feme sole.

In Gregory v. Pierce, 4 Metcalf, the court say: “ The principle is now to be considered as established in this state, as a necessary exception to the rule of the common law, placing married woman under disability to contract or maintain a suit, that where the husband was never within the commonwealth, or has gone beyond its jurisdiction — has wholly renounced his marital rights and duties, and deserted his wife — she may make and take contracts, sue and be sued, in her own name, as a feme sole. It must be a voluntary separation, embracing both fact and intent of the husband to renounce, de facto, and as far as he can do it, the marital relation, and leave his wife to, act as a feme sole.”

It is true that the English rule, prior to recent statutes, limits this exception to cases of divorce a vinculo-, or of civil death, as where the husband has abjured the realm, been exiled or transported for crime, or where he was a foreigner at the time of marriage, and continued to reside abroad; but the whole current of American authority, as well as recent legislation in this country aud England, is to the effect that where the husband abandons his wife permanently and neglects or refuses to support her, but compels her to maintain herself, under such circumstances and length of time as to show a renunciation of his marital rights, and a separation de facto, she may act as a feme sole, in making contracts relating to her property interests, as well as to sue and be sued.

This exception to the rigid rule of the common law is dictated in the interest of the abandoned wife, by public policy, common humanity, and natural justice, in order that the wife may provide herself with that support and protection which is denied her by a faithless husband.

Schouler’s Domestic Relations, 295, says: “ The current of American authority, legislative and judicial alike, decidedly favors so just a doctrine. And, in England, recent statutes secure to married women privileges to a similar extent, under like circumstances.” See, also, Anderson v. Jacobson, 66 Ill. 522.

The facts of this ease show a permanent abandonment of the wife,' and a refusal to support her and his children longer. It was a separation defacto. Eor more' than eight years the state of coverture had in fact ceased, and she was left more helpless than a feme sole. He did all that was in his power to divorce himself from her, and to invest her with power to act for herself. He was absent and unheard of for more than seven years. This raised a presumption that he was dead. Rice v. Lumly, 10 Ohio St. 596; 1 Greenl. Ev. §§ 33-41, and notes; Loring v. Streman, 1 Met. 204.

Relying upon this presumptive evidence, she might have had dower assigned to her at the time she joined in the conveyance. 2 Scrib. on Dower, 211-216. This presumption arises as well where the husband has gone to another state of this Union, as where he has gone to a foreign country. The states are, as to this legal presumption, foreign to each other. Rose v. Bates, 12 Mo. 47; Clark v. Grubb, 41 Geo. 143.

In making this deed, Mrs. Mayhugh acted, as well as she might, as a feme sole, and, in order to make the sale, represented herself as such. So far as appears, she received an adequate consideration for the sale. The contract was fully executed on both sides, as she then supposed.

She does not offer to rescind, by tendering back the consideration ; but retains the fruit of her contract, while treating it as a nullity. In the meantime, her grantee, acting, as we may presume, on the faith of representation and covenants, had improved the property, and conveyed it to a bona fide purchaser, for value — the present plaintiff in error.

If this were an executory contract to convey, and the purchaser sought to enforce a conveyance upon payment of the consideration, equity might refuse to do so; but where she has received the consideration, and executed tbe contract, as far as she had capacity to do so, a court of equity will not aid her to repudiate it. This principle was recognized in Meiley v. Butler, 26 Ohio St. 535. There the wTife, who was living with her husband, induced a buyer to purchase lauds owned in her own right, by verbally agreeing that a debt, due from her husband to the purchaser, should be taken in part payment. It was held that, after such purchase, and a conveyance by her, she could not repudiate this contract as to her husband’s debt, and collect the entire purchase money. As against the purchaser from her, she was estopped by her verbal agreement, although under the disabilities of coverture.

In Bullock v. Griffin, 1 Strobh. Eq. 60, it appeared that during coverture, and after the sale of the husband’s lands, the wife, by agreement with the purchaser, took two shares as an equivalent for her contingent right of dower, and retained possession of them, without setting up any further claim for seven or eight years after discoverture. The court refused to give her dower, on the ground that she was estopped.

So, where a wnfe joined with her second husband in the conveyance of land, she is estopped to claim dower under her former husband in the land so conveyed. Usher v. Richardson, 29 Maine, 415.

And where her deed was void by reason of defective execution, but as executrix of her husband, she brought suit to recover the purchase money for the land conveyed by such deed during coverture, it was held that she thereby affirmed the deed, and would be barred from claiming dower. Share v. Anderson, 7 S. & R. 42.

That a widow may bar her dower before its assignment, by way of estoppel, although she could not convey it or release it, except to the owner of the fee, is well settled. 2 Scribner on Dower, chaps. 11, 12.

Her acts and contracts, in that behalf, are subject to the same equitable rules as those of any other feme sole, and a court of equity, by applying the doctrine of estoppel, will not allow her to commit a fraud.

Upon the whole, therefore, we conclude that, under the facts of this case, the disabilities of coverture were in fact removed, so far as to make her capable of contracting, and suing, and being sued. At least, a court of equity would regard her as a feme sole; and, as such,-bound, by way of estoppel, on her executed contracts manifestly made for her benefit. It is for the interest and protection of a wife, thus abandoned, that she should be capable of acting as a feme sole; and while the rigid and harsh rules of the common law, as it once existed in this state, regarded the wife, who was living and cohabiting -with her husband, as under, or protected by these disabilities; yet where such relation has, in fact, ceased for eight years, she is empowered and justified in acting as a feme sole.

Having so acted, in making this conveyance, and in receiving the consideration, it would be grossly inequitable to allow her to repudiate her contract after having enjoyed its fruits.

Second. It is urged, however, that an inchoate right of dower, being a contingent right merely, could not be conveyed.

This objection relates to the nature of the estate, and not to her capacity to convey. It asserts that, like the mere possibility of an heir apparent, no estate passes by such deed.

We have seen that although the deed of an heir apparent is void, as a conveyance, it may operate by way of estoppel, and that the same rule applies to fem.es covert, as to after-acquired title. The only remaining question is, whether Mrs. Mayhugh could, by estoppel, bar her right to dower.

A widow, before dower is assigned, having only a vested right to be endowed, can not, at law, convey such right — ■ she can only release it. Yet, being a feme sole, she can effectually bar such right, by way of estoppel, as we have seen. Being a feme sole, equity will treat her as such, and enforce her contracts in relation to her unassigned dower, when She has estopped herself by her acts or contracts.

Mrs. Mayhugh, being empowered to act as a feme sole, by the long absence beyond the state, and desertion, of her husband, could as fully bind herself as a widow, i. e., she was as fully relieved from the disabilities of coverture as if her-husband had been actually dead. She was entitled, on that proof, to have dower assigiied as if she were a widow in fact. As a widow might do, she joined with the heirs in the deed to Robinson and covenanted the title.

Had she been under all the disabilities of coverture, and joined with her husband in such covenants, she would, according to Hill v. West, have been estopped from asserting an after-acquired title. If, then, a widow, or a feme covert, in fact, by uniting with her husband, can bar her future right to have dower assigned, or estop herself from asserting an after-acquired title, we are unable to see why a married woman, under the circumstances of this case, who has all the powers of a feme sole, can hot do so.

Her inchoate right of dower had presumptively become a vested right, subject to be diverted by a rebuttal of the presumption of death.

As inchoate, it was an interest in the land created bylaw for the wife’s benefit and vested in her. It was a legal right, contingent on her surviving her husband, as to whether it would ripen into an absolute rightto have dower set-off by metes and bounds, and to enter upon its enjoyment. McArthur v. Franklin, 16 Ohio St. 193; Black v. Kuhlmam, 30 Ohio St. 196.

In Black v. Kuhlman it was held that, where she joined her husband in releasing it to a mortgagee, it was a present valuable interest in the estate, susceptible of being estimated, the value of which belonged to the mortgagee as against prior mortgages which she did not execute.

This right of dower, even if it is regarded as inchoate merely, was then something more than the naked possibility of an heir apparent. It was a present vested right of value, contingent on her survivorship.

Treating Mrs. Mayhugh as a feme sole, as to her capacity to contract, we find nothing in the nature of her interests in the property to prevent her from binding herself by her representations and covenants so far as to estop her in equity from repudiating a contract fully, executed in good faith by her grantee, and as she supposed and intended at the time fully executed on her part.

Needles v. Needles, 7 Ohio St. 432, is relied on in support of an opposite conclusion. That case, so far as it bears on this, merely holds that, at common law, the mere expectancy or chance of succeeding to an estate is not the subject of release or assignment, but, as the opinion show’s, may be upheld in equity ; and that a married woman must joiu her husband, as provided by statute, to bind her real estate, but it is also expressly held that in equity it is a different question'.

Equity recognizes the separate existence of the wife, even under all the disabilities of coverture, and regards her as a rational and responsible subject of its jurisdiction, entitled to its protection, and amenable to the decrees of a court of conscience. Phillips v. Graves, 20 Ohio St. 380; Levi v. Earl, 30 Ohio St. 147 ; Mount v. Morton, 20 Barb. 123 ; Ford v. Ford, 4 Ala. 142 ; Fitz v. Hall, 9 N. H. 41; Evans v. Bucknell, 6 Vesey, 174; Herman on Estoppel, § 494 ; Wright v. Arnold, 14 B. Mon. 638 ; Dunn v. Cudney, 13 Mich. 239.

It is said that there was no fraud in Mrs. Mayhugh’s representations that her husband was dead, because it does not appear she knew' it was false. This was not necessary. It is not necessary, to an equitable estoppel, that the party should design to mislead, it is enough if the act or declaration was calculated to and did in fact mislead another acting in good faith and with reasonable diligence. 14 Ohio St. 102 ; Blair v. Wait et al., 69 N. Y. 113.

The judgment of the district court is reversed, and that of the common pleas affirmed, and cause remanded.


source: Caselaw Access Project

author: Ashburn, J.

license: Public Domain

text:
    Commissioners of Noble County v. Hunt & Co.
    1. In eases where a specific duty is enjoined by law upon the board of county commissioners to be performed in a specific manner not involving judicial discretion, and when performance by the board is due it refuses to act, it may be compelled to do so by mandamus.

    2. The county commissioners having accepted, as completed according to contract, a road improvement, ordered by them to be made in pursuance of statutes authorizing payment therefor to be made in bonds of the county to he issued to the contractor on completion of the improvement and acceptance thereof, and the commissioners refuse to deliver to the contractor the bonds to which he is entitled, mandamus, and not appeal, is the proper remedy for redress.
    3. The board of county commissioners, in the due course of business, at a regular session, caused an entry, as follows, be made on their journal: " September 7, 1872. The macadamized road petitioned for by Hiram Haistings and others, under the law of April 30,1869, and the act amendatory and supplementary thereto, having been completed according to contract, the same is hereby accepted as such. James Ealrin, William Long, Robert Calland, Commissioners.” Held, Parol evidence was inadmissible to explain, modify, or change this record.
    Error to the District Court of Noble county.
    This was a proceeding in the district court for a peremptory mandamus to compel the county commissioners ot Noble county to issue, in favor of relators, county bonds claimed to be due them for labor performed and material furnished by them, under a contract to improve a portion of a county road in Noble county, under the statutes then in force ill relation to two-mile road improvements. In response to an alternative writ of mandamus, respondents answered, denying the liability of the county under the contract, claiming-that the relators had not performed their part of the contract, and that the road had not been accepted either by the engineer or the respondents. The issues of fact were submitted to a jury, and a verdict was given for relators for $840.35, the full amount of their claim.
    The facts necessary to an understanding of the case, other than what will appear in the opinion, are substantially these, Hiram Ilaistings, and the requisite number of other qualified land-owners, filed with the commissioners a petition praying for the improvement of a public road, under the provisions of the act of April 23, 1869, and acts in force in relation to the same subject. Such proceedings were afterward had upon the petition that the improvements were ordered, and one Henry Miller was appointed as the engineer of the improvement, with authority to enter into contracts for the performance of the same. Thereupon, with the approval of the commissioners, a contract was entered into by the relators, to improve sections 9,10, and 11, in accordance with the specifications. The specifications formed part of the contract, and provided that “ The macadamizing must be done with good limestone, free from any substance that will cause it to molder by the action of the weather, and must be delivered upon the roadbed as directed by the engineer, and broken to a size not exceeding four ounces in weight. The spreading must be done as directed by the engineer, and may be in one, two, or three layers; the stones must be free and clear from all earthy mixture.”
    In the contract, the relators agreed that the party of the first part do and perform, for and in consideration of the covenants of the party of the second part, hereinafter mentioned, the work on sections number 9, 10, and 11, of the above road, at the prices in the above proposal, and according to the above specifications, which are made a part of the above contract.

      The respondents, as county commissioners, on their part agreed to pay said party of the first part, for said improvements, at the rate stated in said proposal in the bonds of said county of Noble, issued for the .improvement of said road, bearing interest at seven per cent, per annum, on or before the 15th day of each month, after the work is commenced on said section, for the pro raía portiop pérformed prior to the 1st day of said month, to be determined by the estimate of the engineer in charge of said improvement, reserving ten per cent, of said estimate until the work is completed.
    In pursuance of the contract as the work progressed, the engineer, from month to month, examined the improvement, making estimates in favor of relators. -The engineer complained to the relators, during the progress of the work, that some of the limestone used in macadamizing was not of a quality according to contract. The commissioners also went over the road for examination, and were advised of the character of the work done and material used by the relators on the job.
    Eull estimates, twenty-thi’ee in number, were made and delivered by the engineer to the relators, approved by the commissioners, and also county bonds, less ten per cent, on each estimate. At the June session of the commission for 1872, the parties undertook to settle and adjust the claims of the relators, but failed to do so, the commissioners claiming that relators had not performed the work according to contract. No record was made of any action in reference to the claim of the relators, if any was had, at this June session. At their September session for 1872, the respondents on their own motion and in the absence of relators, made an entry on their journal, as follows:
    “ September 7, 1872.
    The macadamized road petitioned for by Hiram Haistings and others, under the law of April 30, 1869, and the acts amendatory and supplementary thereto, having been completed according to contract, the same is hereby accepted as such.
    (Signed,) . Jambs Eakin,
    William Lons, Robert Calland, Commissioners”

    On the trial, the relators to maintain the issue on their part, offered in evidence the foregoing record, and the several estimates of the engineer, in their favor, and rested their case. The estimates were substantially as follows, in form and substance:
    No. 80. It is hereby certified, that there is due J. R. Hunt & Co., for work done on section nine of the Williamsburg aud Summerfield Road, during the month-of June, us follows:
    Grading 491 yards of earth, at 23c..........$216 43
    Building 12 perches culvert, ae $4.25...... 51 00
    Building 19.2 perches culvert heading at
    $4.00................................................ 76 80
    Excavating 41 yards earth, at 23c........... 9 43
    Excavating 6 yards shell rock at 45c........ 2 70
    Delivering 50 rods limestone, at $3.50...... 175 00
    Breaking 37.58 rods limestone, at $1.50.... 56 37
    Spreading 58.52 rods limestone, at 40c...... 23 40
    611 13
    Deduct 10 per cent......................... 61 11
    $550 02
    Henry Miller, Engineer.

    The respondents to maintain the issue, on their part, called as a witness, William Long, one of the respondents, and offered to prove by him, among other things, “ that, at the time of said journal entry of the date of September 7, 1872, the claim of said relators was not before said commissioners, and was notin any way considered by them,but that said entry was made by said commissioners for the purpose of accepting the road, and establishing it as a public highway, and to authorize the trustees of the townships through which it passed, to expend the labor and road tax upon the same for the purpose of keeping it in repair, and that said entry was made for no other purpose, and with no other intention. To the introduction of said testimony the relatora by their council objected, and the court sustained the objection, and refused to allow said testimony to go to the jury and be considered by them, to which ruling of the court, in sustaining said objection, and refusing to allow said testimony to be given, the defendants then and there excepted.”
    Respondents offered to prove some other matters by the witness, Long, explanatory of the conduct and motives of the commissioners, which, on objection, were excluded. In the further progress of the case the facts excluded were proven by the testimony of Long and other witnesses called on behalf of respondents.
    The jury having returned a verdict for relators, respondents made a motion for a new trial. This was overruled, and a bill of exceptions embodying all the evidence was taken and made of record. Judgment was entered upon the verdict, and a peremptory mandamus awarded. This judgment was excepted to. Now the respondents aver that there is error in the record and proceedings in this, to wit:
    1. The court erred in ruling out the evidence of William Long, as offered by the said commissioners. ■
    2. The court erred in overruling the motion of the said commissioners for a new trial.

      Evans $ Chambers and Belford OJcey, for plaintiffs in error:
    The remedy of relators was not by mandamus but by appeal. Gerke v. Comm’rs, 26 Ohio St. 364.
    Parol evidence was admissible to explain or modify the record of the commissioners. Robinson v. Jones, 8 Mass. 536; Maley v. Shattuck, 3 Cranch, 458; Gelston v. Hoyt, 3 Wheat. 246; 1 Greenleaf on Evidence, § 527 a; 1 Phillips Ev. 453; 2 Phillips Ev. 21, etc. (note 262); 2 Parsons on Contracts (6th edition), 789, and note h; Anderson and Wife v. Comm’rs of Hamilton County, 12 Ohio St. 635; 2 Dillon on Municipal Corporations, 746, § 648.

      J. H. Collins, for defendant in error;

      Mandamus is the proper remedy, and the case of Gerke v. Comm’rs of Hamilton County, 26 Ohio St. 364, supports, and is not against, this proposition.
    That was a claim against Hamilton county for expenses incurred in legal proceedings do collect taxes, instituted by the county treasurer, and the commissioners having refused its allowance, the treasurer resorted to the writ of mandamus to compel such allowance ; and it was held that appeal and not mandamus was the proper remedy. Here, under a special statute, the commissioners contracted to issue and deliver bonds of the county, in pursuance of the statute, to the relators, monthly, as the work progressed, reserving ten per cent, to be issued at the conclusion of the work. The work was finished, the amount due relators was ascertained and liquidated by the certificates of the engineer, and the commissioners adjudicated the matter finally by entering upon their journal an order finding that the road had been completed according to contract, and ordering its acceptance as such.
    There was no other adequate remedy.
    A judgment at law for the 'amount due could not be had, because, under the contract, relators were entitled to bonds, not money, and a bill in equity to compel the specific performance of the contract would not be an adequate remedy, and, if it were, it is not a good reason for refusing this writ. The People v. The Mayor, etc., 10 Wend. 395 ; C. W. & Z. R. R. Co. v. The Comm’rs of Clinton County, 1 Ohio St. 78.
    The ease of Omaha v. Hammond, 4 Otto, 98, is directly in point, and is conclusive of this ease on its merits.
   Ashburn, J.

This proceeding in mandamus was instituted to compel the board of county commissioners of No. ble county to issue and deliver to relators a certain amount of county bonds, claimed by them to be due them from the county, for labor performed and materials furnished in constructing a road improvement ordered by the county commissioners of that county, under the statutes authorizing such improvements. The relators claimed to have performed their part under the contract, and that the improvement had been accepted by the commissioners as a completed work.

It is claimed by respondents that the work was not done and materials furnished according to contract; that the improvement was not received by them; that no bonds of the county are due relators, aud that, if relators have any claim against the county under the contract, their remedy is by appeal from the action of the board of county commissioners, and not by mandamus.

If the improvement was, in fact, accepted by the county commissioners, their duty, under the statute in relation to the issuing of bonds of the county to the contractors, was a ministerial duty.

The statute authorizing such improvements, provides, “ that for the purpose of raising the money necessary to meet the expense of said improvement, the commissioners of the county are hereby authorized to issue the bonds of the county, . . . provided that no bonds shall be delivered, or any money paid, to any contractor, except upon estimates of work done as the same progresses or is completed,” etc. (64 Ohio L. 83, § 7.) In this case, the board of commissioners contracted to deliver to relators bonds of the county, in amounts “ to be detei’mined by the estimates of the engineer ixi chax’ge of said improvement.”

The writ of mandamus may be issued to any inferior tribunal or officer, to compel the performance of any act or duty which the law specially imposes upon the office or official station. But though it may require such tribunal or officer to exercise its, or his, judgment, or to proceed to the disehax’ge of any of its, or his, functions, it can not be used to control judicial discretion. Code, § 569.

"Where, as in this case, the contract specifies that the improvement is to be paid for in bonds of the county, upon estimates rendered or the completion of the work, and it is accepted by the board of county commissioners, it is the duty of the commissioners to deliver them. This duty is ministerial, and in no way involves' judicial discretion. Plence mandamus, upon refusal, is the appropriate means to enforce the performance of the duty.

It is claimed, by respondents, that appeal to the court of common pleas would afford relators an adequate remedy. We think not.- The claim of relators was not one calling for liquidation by judicial action in the sense of finding what was due the claimant in money for which a judgment might be rendered. Their claim was to be satisfied in a specific way, by a specific thing. The court of common pleas has no jurisdiction on appeal in such a ease. If it should assume jurisdiction, it could not render a judgment for money, and if it should order the county commissioners to issue county bonds, that court has no power to enforce such an order. The claim of relators does not come within the character of claims, where one aggrieved by the action of the county commissioners, may appeal, as provided in section 18 of the commissioners’ act, S. & C. 247. Nor do these special road improvement laws provide for an appeal. Hence none exists.

It is claimed the court erred in rejecting the parol evidence offered by respondents to explain -and apply to a specific purpose, other than the acceptance of the road, the entry made by the commissioners on their journal, dated September 7, 1872.

We think there was no error in this. . The journal entry was something more than an admission, the effect of which might be explained away by parol testimony. Its creation was a judicial act — a judgment upon a question over which the commissioners had complete jurisdiction. Having a* legal right to make such an entry upon the subject-matter to which it relates, it must be treated as a record importing verity. Parol testimony was not necessary to apply the record to the appropriate subject-matter, for the bill of exceptions shows that, on the trial, “it was conceded that the road named in the foregoing entry embraced the sections contracted for in this case.” The entry was. unambiguous. It called for no construction, and the subject-matter to which it applied was unmistakable. It was not a case in which parol testimony was admissible to apply the record to its appropriate subject.

It is claimed the verdict is not supported by the proofs.

No question arises out of a conflict of testimony, but upon a preponderance of the evidence used on the trial. Relators do not, by testimony, deny that some inferior stone was used in the macadamizing, but claim the road is. none the worse for its use, and that, by accepting the work,, the commissioners waived any supposed defect arising' therefrom. Miller, the engineer, testifies : “ The road with good mateiial is no better, at present, than that with bad, as I can observe, for the reason that the bad stone is on the-ridge, and on better and more solid soil, it (the bad stone) being handier to work on the ridge.” Other witnesses testify that the inferior stone makes an inferior road. The proofs show that the engineer, when he made the estimates,, and the commissioners when they approved them, knew,, from actual observation,' that a portion of the road was being constructed with inferior stone; and yet, with this-knowledge, allowed each estimate made by their inspecting agent, in full, and, upon each estimate, delivered to the contractors bonds to the full amount, less ten per cent., as per contract. They were fully advised, in June, 1872, when trying to effect a settlement with relators, that inferior material had been used; and yet, with full knowledge of this fact, on the 7th day of September, 1872, closed the controversy, by declaring, on their records, that the road, “ having been completed according to contract, the same is hereby accepted as such.” This record, we think, was a potent fact in the case ; and from the effect, as a fact in the case, which we are inclined to give it, the verdict is not-against the weight of the evidence.

It is not at all clear but that, from the authority the law and the commissioners reposed in the engineer, the estimates made by him and approved by the commissioners, and paid in full, less the contract deduction, unaided by this recorded admission, was conclusive as to the relator’s right to .demand the bonds, when the last estimate was made and approved by the commissioners. See Omaha v. Hammond, 4 Otto, 98. In this case, we do not hold the acts of the engineer, under the contract, are conclusive upon the board of county commissioners. But, giving to the conduct and official acts of the engineer and county commissioners their natural and ordinary significance as evidence, the proofs sustain the verdict. Indeed, it is difficult to conceive how an intelligent jury, giving to the proofs their proper effect, could have arrived at a different conclusion.

The judgment of the district court is affirmed, and cause remanded to that court for execution.


author: Wright, J.

text:
    Combes et al. v. Chandler et al.
    1. A bona fide purchaser, for value, of a n on-negotiable chose in action, from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, when the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped from asserting title thereto.
    2. B. makes and delivers his non-negotiable promissory notes to 0., from whom they are obtained by fraud, misrepresentation, and without adequate consideration. The assignee, having thus obtained them, transfers them to W., who is a bona fide purchaser, for value, before due, without notice: Held, O. can not reclaim the notes from W.
    Error to the District Court of Summit county.
    The action, having been appealed to the district court, was there tried, and the following are the material facts: Benjamin Thompson, who is one of the defendants, made 'his four promissory notes, for $2,000 each, dated May 22, 1868, and payable March 20, 1870, 1871, 1872, and 1873. These notes were made “ to Frank A. Combes, as guardian of ITiram A. Combes and Samuel M. Combes,” and were non-negotiable. Frank A. Combes, thus having the notes, in a trade with Samuel F. and "William E. Chandler, defendants, turned over three of them to the Chandlers. It is an admitted fact that this trade was a fraud on the part ■ of the Chandlers, and that they obtained the notes by fraud and without adequate consideration. The indorsement, when the paper was transferred, was merely, “F. A. Combes, guardian.” The Chandlers, having thus obtained the notes by fraud, transferred them to Josiah B. Woods, ■ of Massachusetts, in payment of a debt they owed him.
    This action is brought by the Combes, against the Chandlers, Woods, Thompson, and others, setting up that the Chandlers had obtained the paper by fraud, and asking that Woods maybe compelled to deliver them up to the plaintiffs. ■ Thompson answers, and admits the execution ■ of the notes, and says he is ready and willing to pay them to whomsoever is the rightful owner.
    Although perhaps it is not particularly material, the •fraud spoken of was this: The Chandlers were engaged in the spectacle manufacturing business. They sold out this business to the three Combes, who had formed a company, and took in payment these Thompson notes. The property which the Chandlers sold was not what they represented it to be, and hence the fraud.
    When the Combes discovered that they had been defrauded does not exactly appear, but in April, 1871, they began an action to have the transaction set aside, in which they obtained a decree. The notes, however, had been transferred to Woods, in October, 1869, and he is now represented by his executors.
    The controversy is about the ownership of two of the notes, the others not being involved in the case. The district court refused thé claim of Combes, finding that W oods was a bona fide holder, and that his executors are entitled to? hold the paper and collect it, decreeing accordingly. To-this decree the present petition in error is filed.

      B. Sowers, for plaintiff in error :
    • 1. The assignee of a non-negotiable chose in action takes-the exact place of his assignor as to the equities of a prior owner of the chose in action so transferred. Davis v. Austin, 3 Brown Ch. Ca. 178; Cockell v. Taylor, 15 Eng. L. and. Eq. 101; Brandon v. Brandon, 39 Eng. L. and Eq. 186 ; Id.. 569; Mangels v. Dixon, 18 Eng. L. and Eq. 82; Bush v. Lathrop, 22 N. Y. 535 ; 1 Paige Ch. 131; Shafer v. Reilly, 50 N. Y. 61; 61 N. Y. 88 ; 7 Pet. S. C. 252; Judson v. Corcoran, 17 How. 612 ; Follett v. Reese, 20 Ohio, 546; Bailey v. Smith, 14 Ohio St. 396 ; Churchill v. Little, 23 Ohio St. 301; Moore v. Bank, 55 N. Y. 41; 40 N. Y. 492.
    2. Woods was not a bona fide holder, and he took the-notes under such circumstances as to affect him with notice-of the rights of prior holders. Story on Prom. Notes, §§ 128, 129; Muller v. Pondir, 55 N. Y. 325; 14 Allen,. 523; 13 Allen, 50, 407; Duncan v. Jandon, 15 Wall. 165.
    Woods’ failure to notify Thompson of the assignment of the notes to him, impairs his equitable title to them to-such an extent as to give plaintiffs the prior equity. Judson v. Corcoran, 17 How. 612.
    This was an action between a prior and a subsequent assignee, who first gave notice of the assignment to the-holder of the trust fund. And the subsequent assignee, who first gave notice,- prevailed. 2 Story Eq. Jur., § 1039; Id., § 1047; Stocks v. Dobson, 15 Eng. L. and Eq. 314; s. c., 19 Eng. L. & Eq. 96.
    We have already remarked that the indorsement in this-case is not such as to warrant the belief that the indorserintended to clothe the indorsee with the/ms disponendi. We-regard this circumstance as important in connection with the claim of estoppel.

      Prentiss $ Vorce, for defendants in error :
    A pre-existing debt is a good consideration. Butters v. Houghnout, 42 Ill. 18 ; 2 Wheat. 66 ; 11 Ohio, 172 ; 10 Ohio St. 448.
    As to transfer of the notes, see Shanklin v. Commissioners, 21 Ohio St. 581.
    Whether Woods took the notes subject to the defenses arising between Chandlers and the Combes, see Hayward & Co. v. Stearns, 39 Cal. 58 ; Vinton v. Crowe, 4 Cal. 309 ; Blair v. Mathiott, 10 Wright, 262; 22 Wend. 358 ; 46 N. Y. 325 ; 55 N. Y. 41 ; 11 Ohio St. 616.
   Wright, J.

Whether or not Woods was a bona fide •holder, we will not discuss at any length. Erom the evidence, it seems he resided in Massachusetts, and had loaned the Chandlers a considerable amount of money, for which he had their chattel mortgage. They offered to transfer him the Thompson notes, if he would cancel the mortgage, which was done. The Chandlers state that Woods knew nothing of the circumstances of the fraud.

Upon the evidence, the district court found that Woods was such bona fide holder. This was a question of fact, and we must regard the finding of the court below in the nature of the verdict of a jury, uot to be set aside, unless clearly against the evidence, and Ave do not see that any ■such inconsistency exists.

In order to consider the propositions of law involved, the case may be thus stated: Thompson makes and delivers to ■Combes, as guardian, non-negotiable notes ; by fraud, misrepresentation, and without adequate consideration, the ■Chandlers obtain these notes from Combes, and transfer ■them to Woods, a bona fide purchaser, for value, without notice. The question to be decided is, can Woods hold the paper as against Combes, the original assignor. It is clear that the Chandlers could not. Having obtained the property fraudulently, and in the manner stated, if they had the notes, they could not retain them. Is Woods, assignee -of the Chandlers, in any better position? It is claimed that he is not, because the assignee of a non-negotiable' chose in action, must stand in the shoes of his assignor, and be affected with all infirmities of title in him.

To sustain this proposition authorities are cited to this effect. ,

“ A purchaser of a chose in action takes it subject to all. equities.” Cockell v. Taylor, 15 Eng. L. and Eq. 101.

“ The purchasers of a chose in action can not be in a better position, than the person from whom he purchased.” Brandon v. Brandon, 39 Eng. L. and Eq. 186.

“ The assignee of a chose in action, or security of any kind, stands in exactly the same situation as the assignor,, as to the equities arising upon it. He must be taken to be cognizant of them.” Mangles v. Dixon, 18 Eng. L. and Eq. 82.

Where it is said that a purchaser takes subject to equities, the first thing to be determined, is, what equities are-spoken of? It is not meant that equities of every kind,, arising in favor of every person, are the ones to be considered.

Story says this: “ If the transfer is after the maturity of the note, the holder takes it as a dishonored note, and it is affected by all the equities between the original parties,, whether he has any notice thereof or not. But when we speak of equities between the parties, it is not to be understood, by this expression, that all sort of equities existing between the parties, from their independent transactions between them, are intended; but only such equities as attach in the particular note, and as between these-parties.” Prom. Notes, § .178.

Pomeroy on Remedies, says : “ The general doctrine is-elementary, that the purchaser of a thing in actiou, not negotiable, takes the interest pui’chased subject to all the defenses, legal and equitable, of the debtor who issued the obligation.” § 157.

In Hayward v. Stearns, 39 Cal. 58, it is held: “ The assignee of a promissory note, overdue, takes it subject to all the equities subsisting between the maker and payee,. but free from ¡ill equities subsisting between the maker and any intermediate holder.” Kyle v. Thompson, 11 Ohio St. 616, recognizes the same doctrine. Woods’ ownership of these notes, therefore, can not be disputed by the general statement that he takes non-negotiable paper subject to' equities, inasmuch as that expression relates to the original parties, and refers to some equity that the maker has against the payee. No such equity is claimed to exist. Thompson, the maker of the notes, does not pretend to-impeach them, but says he is ready and willing to pay whenever it is determined who is the proper party to receive.

There being then no infirmity in the paper itself, which would render it valueless in the hands of a remote assignee, it is urged that Woods takes the same title the Chandlers did ; and, as by reason of their fraud, they could not hold it, therefore Woods can not.

It has been stated that the Chandlers sold their spectacle manufactory to Combes fraudulently, misrepresenting its value, and took these notes in payment. It seems that Combes did not discover this fraud until long after the transaction, and some eighteen months after Chandlers had sold the notes to Woods.

As a general proposition, it is true that the assignee of a chose in action can take no better title than that of his assignor. One can not sell more than he has. But this doctrine must be taken in connection with another, which is that the original owner may so act as to estop himself from asserting his rights. If one sells me a horse which he has stolen, as a general thing, I may not be able to hold it as against the true owner; but if that owner happened to be standing by at the sale, and saw me pay my money, without objection from him, he might find it difficult to reclaim his property.

The questions here proposed have been much discussed in New York, where there has been somewhat of a conflict of views, as is not unusual in that state. Bush v. Lathup, 22 N. Y. 585 ; McNeil v. Tenth Nat. Bank, 46 N. Y. 325 ; Moore v. Met. Nat. Bank, 55 N. Y. 41. These cases give such an extended view of the whole subject that further investigation would be superfluous. An able discussion of these questions is also found in Pomeroy’s Legal Remedies, §§ 156 to 163, inclusive. The syllabus of the last case cited announces a proposition, which we think is applicable to the one before us.

“A bona fide purchaser for value of a non-negotiable chose in action from one upon whom the owner has, by assignment, conferred the apparent absolute ownership, when the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped from asserting a title in hostility thereto.”

The reasoning given by the court in its opinion seems to apply to the case we are considering, and we adopt it as our own.

“ One reason why an owner of corporate shares or of goods and chattels, who has conferred upon another the apparent ownership, without transferring to him a valid title, was held precluded from asserting his title against a bona fide purchaser from such apparent owner, is that such purchase was made upon the faith of the title -which he had apparently given, and that it would be contrary to justice and good conscience to permit him to assert his real title against an innocent purchaser from one clothed by him with all the indicia of ownership and power of disposition. Another reason was, that were - the rule otherwise, it would afford opportunities for the perpetration of frauds upon the purchasers from such apparent owners. When one known to be the owner of shares or chattels delivers to another the script or possession of the chattels, together with an absolute written transfer of all his title thereto, he thereby enables him to hold himself out as the owner, and, as such, obtain credit upon and make sales of the pi’operty; and if, after he has so done, the owner was permitted to come in and assert his title against those dealing upon the faith of these appearances, the dishonest might combine and practice the grossest frauds. Another reason is that it presents a proper ease for the application •of the legal maxim that, where one of two innocent persons must sustain a loss from the fraud of a third, such loss must fall upon the one, if either, whose act has enabled such fraud to be committed.” (p. 46.)

Pomeroy states the doctrine thus : “ The owner of certain kinds of things in action not technically negotiable, but which, in the course of business customs, have acquired ■a semi-negotiable character as a matter of fact, may assign -or part with them for a special purpose, and at the same time may clothe the assignee or person to whom they have been delivered with such apparent indicia of title, and instruments of complete ownership over them, and power to dispose of them, as to estop himself from setting up against a second assignee to whom the securities have been transferred in good faith for value, tbo fact that the title of the first holder was not absolute and perfect.” Legal Rem. 160. Nor does the doctrine of estoppel, thus applied, have the 'effect of making non-negotiable choses negotiable as was claimed in argument of cases above cited. The purchaser, .at all times, takes the chose subject to equities or defenses, valid as between the original parties, and this distinction must be borne in mind.in reference to other equities and other defenses between other parties. The rule that the •chose is open to defenses growing out of the original trans.action, in the hands of any assignee, however remote, is not .altered by the application of the principle of estoppel as -against other defenses. Trustees of Union College v. Wheeler, 61 N. Y. 114.

It is only when the owner, by his own affirmative act, has conferred the apparent title and absolute ownership upon another, upon the faith of which the chose in action has been purchased for value, that he is precluded from asserting his real title. Davis v. Bechstein, 69 N. Y. 442. There are no equities attaching to the notes in this ease, in the proper sense of the phrase. The maker still asserts their validity and his willingness to pay them. He sets up nothing as against the payee or any one else. "When they came into the hands of Combes he transferred them to Chandlers, giving them all the indicia of ownership, with full powers to sell, transfer, or do with them whatever they would. It was Combes’ intention to part with the paper; he did it voluntarily, intending that Chandlers should take full title and full ownership. After this was done, after the paper had come into the hands of Wo<5ds, Combes discovers that he was swindled in the original transaction, and now attempts to right himself, not at the expense of Chandler, the wrong-doer, but of Woods, the innocent party. There is nothing to prevent Combes from suing Chandler and making him repair the loss. This remedy and right of action is complete, and it would certainly be unseemly that Combes should have this, and also be permitted to reclaim the paper itself.

It does not seem to us other than the ordinary case of one who has been cheated in the sale of personal property.. If the consideration has failed he can recover of the wrongdoer, but not relake the property from, the one who has-innocently bought and honestly holds it.

Judgment affirmed.


author: Scott, J.

text:
    Truesdell v. Combs.
    1. Justices of the peace, while acting within the scope of their authority,. are not answerable in a private action for the erroneous exercise of the judicial functions with which they are invested by law.
    2. But such justices, and other inferior tribunals, which are invested only with special jurisdiction, and clothed with limited authority, must, at their peril, keep within their prescribed jurisdiction; and if they transcend the limits of their authority, they are answerable to any one-whose rights are thereby invaded.
    3. And, in such a case, honesty of purpose, while it may mitigate damages, can not justify a clear usurpation of power.
    4. Therefore, where a justice of the peace, without authority of law, issues-a warrant of arrest, both he and the person at whose instance he so acts are liable in an action for false imprisonment at the suit of the party illegally arrested by virtue of such warrant.

      Error to the District Court of Trumbull county.
    The original action in this case was brought by defendant in error, in the Court of Common Pleas of Trumbull county, against the plaintiffs in error and two-other parties, to wit, one ITarry C. Dailey and one James Clark. In bis petition, he charged that the defendants below, unlawfully and without just cause, maliciously arrested and imprisoned him from the 11th till the 18th day of July, 1874, on a pretended charge of larceny; and that,, to obtain his discharge from such imprisonment, he had been compelled to pay the sum of eleven dollars by the pretended judgment of the said James Clark, who was a justice of the peace of said county. For this illegal arrest and imprisonment, he asked a judgment for damages in the-sum of $1,000.
    The defendants below, Truesdell, Griffis, and Dailey, answered, denying the allegations of the petition, and alleging that the plaintiff had, as was believed by the defendant, Abel Truesdell, stolen milk from him, by entering upon his premises and milking one of the said defendant’s cows,, and thereupon, in good faith, and without malice, the said, defendant went before the defendant Griffis, who was and is a justice of the peace within and for the county of Trumbull, and made an affidavit charging, as he supposed and believed, the said plaintiff with so entering upon his said premises and stealing milk. And, thereupon, the said Griffis, as-justice of the peace aforesaid, issued a warrant for the arrest of plaintiff, and placed the same in the hands of defendant Harry C. Dailey, who was then, and now is, a constable of said county, who, in obedience of said warrant.,, arrested plaintiff and took him before defendant Clark, who-was also a justice of the peace, and before whom plaintiff was tried, and found guilty of the charge made: that said warrant was issued, and said arrest made, in good faith, and without malice, and with and for a good and legal purpose, and with no intent to maliciously injure the plaintiff,. and they deny that he was injured or damaged in the sum of $1,000, or any other sum whatever.
    To this answer plaintiff'below replied, denying all the allegations of defendants’ answer, except that said defendants , were officers as stated; that said Truesdell made an affidaj vit before said Griffis, who issued said warrant, and that ' said constable arrested plaintiff thereon, and took him before James Clark, said justice, who illegally pretended to try and sentence him to the payment of money.
    Upon the issues joined, the case was tried to a jury, who returned a verdict in favor of the plaintiff' below, against •all the defendants, for the sum of $150. Defendants below thereupon moved for a new trial, for the following reasons:
    1. That the damages given by the jury in this case are excessive.
    2. That the verdict given in this case is against,'and contrary to, the weight of evidence and the law of the case.
    3. The court erred, on the trial of this cause, in refusing to charge the jury as requested by defendants.
    4. The court erred in the charge given to the jury.
    The court sustained this motion as to the defendants Clark and Dailey, but as to defendants Truesdell and Griffis the motion was overruled, and judgment was entered against them on the verdict, to which they excepted.
    Upon the trial of the ease, a bill of exceptions was taken by defendants below, embodying all the evidence in the' •case. Erora this evidence it appears, that on the 11th day of July, 1874, Truesdell, one of the plaintiff's in error, went before Griffis, the other plaintiff in error, who was a justice of the peace for said county of Trumbull, and made the following complaint, in writing, under oath:
    “ The State of Ohio, Trumbull County, ss.

    “Before me, ¥m. D. Griffis, one of the justices of the peace for said county, personally came Abel Truesdell, who, being duly sworn according to law, deposeth and saith, that on or about the 10th day of July, a. d. 1874, at the county of Trumbull, one Alfred Combs did enter upon the premises of the said' Abel Truesdell, and? while there, did unlawfully attempt to take and drive away one red cow, it being the property of the said Abel Truesdell; aud on or about the 11th day of July, 1874, the said Alfred Combs-did enter upon the premises of the said Abel Truesdell, and, while there, did unlawfully take and convey away, without right or permission, a quantity of milk, the same being the-property of the said Abel Truesdell. And further this deponent saith not. Abel Truesdell.
    “ Sworn to and subscribed before me, at the county aforesaid, this 11th day of July, a. d. 1874.
    “¥m. D. Grieeis, Justice of the Peace.”

    Thereupon the said Griffis, as such justice, issued a states warrant, directed to any constable of said county, reciting said complaint, and commanding the arrest of said Combs,, and the bringing of him forthwith before the said justice,, to answer said complaint. This warrant was delivered by the justice to Truesdell, the complainant, who carried it to-the constable, Daily, and placed it in his hands for execution. Daily, in pursuance of the command of the warrant, on the same day, being Saturday, arrested Combs, and took him before Griffis, who, having another trial on hand-, that day, directed the constable to take him before Clark,, another justice of the peace for the same county. The constable, directing Combs to consider himself under arrest,, took him on the following Monday before Clark, who, after-hearing two witnesses on behalf of the state, overruled a motion for his discharge, and found him guilty as charged,, and sentenced him to pay a fine of $5 and the costs of prosecution, amounting in the aggregate to $12, which Combs-having paid, was released from custody.
    The evidence offered on the trial further showed that Truesdell, on whose complaint the warrant issued, and Combs, lived on adjoining lots, and that Truesdell had purchased a milk cow with her young calf, paying $40 therefor, at the request and for the benefit of Combs, who agreed1 to repay him said purchase-money as fast as he could earn-the money from his wages arising from labor in a coal-bank. Truesdell admitted in his testimony that Oombs was to have the right to milk the cow for the benefit of his family. Combs sold the calf for $4, without objection from Truesdell, and paid Truesdell $5, .which he claimed was to apply in part payment for the cow. Truesdell, however, claimed a right to apply this payment otherwise. From the time of the purchase of the cow, she was pastured in Trnesdell’s field, Oombs being chargeable therefor. Trues-dell testified that a few days befoi’e he made complaint a controversy arose between him and Combs as to the own•ersliip of the cow, Combs claiming that the cow was his, ;and that he had a right to get her pastured elsewhere, which he proposed to do. But Truesdell objected to the removal of the cow from his premises until she should be ■fully paid for, and told Oombs that if that was the way he talked, he would not allow him to milk her any longer until he paid for her. On the next day, he testifies, that •Oombs went to the pasture, and undertook to drive the •cow away, for the purpose of having her pastured by a neighbor. Truesdell stopped him, denying his right to take her away till he paid for her. On the next morning, perhaps a half hour before sunrise, Oombs milked the • cow, and Truesdell soon afterward, finding her milked, went over to Combs’ house, and told him he had milked his •cow. Combs said nothing, but his wife, who was present, admitted the fact and claimed he had a right to do so. Truesdell thereupon went to the defendant, Griffis, a justice of the peace, fully stated to him the facts of the case, .and demanded a warrant for the arrest of Combs. Both Truesdell and Griffis believed, as they severally testified on the trial, that the facts stated in Truesdell’s complaint constituted a charge of stealing; and Griffis thereupon re-duced the complaint to writing, and Truesdell having made -oath to its truth, the justice thereupon issued and delivered *to Truesdell a states warrant, which he carried to and put an the hauds of Dailey, the constable.
    The evidence having been closed, counsel for defendants Below, in their argument of the case, asked the court to instruct the jury as follows:
    “ If you find from the evidence that the plaintiff, at the time stated in the affidavit, had actually stolen milk from the defendant, Truesdell, the plaintiff can not recover in this action, although the allegations in the affidavit and warrant did not in law constitute a crime; that while the -statements in the affidavit do not set forth any criminal .■act, yet if it was the intent to charge in said affidavit that the plaintiff had actually stolen milk, by milking the defendant Truesdell’s cow, and in fact you find he had stolen milk in such manner, the defendants are entitled to a verdict.
    “Also that the charges made in the affidavit upon which the warrant was issued do not constitute a crime known to the laws of this state. But if the defendant, Griffis, at the •time he issued the warrant, was an acting justice of the peace for Trumbull county, and in the issuing of such warrant he was endeavoring in good faith to perform his duties as such justice, and actually believed that the charge ¡set forth in the affidavit did constitute a crime under the laws of this state, and was in law stealing, and thereupon in good faith, and in the belief that it was his duty so to_ do, issued the warrant upon which the plaintiff' was arrested, the plaintiff can not recover in this action against .said Griffis. Which instruction the court refused to give.
    “ To which refusal to charge as requested, the defend.ants excepted.”
    Plaintiff's in error took the case to the district court, by petition in error, and assigned the following errors in the judgment of the court of common pleas :
    1. The said court erred in refusing to give the instructions which these plaintiffs prayed the court to give.
    2. The court erred in overruling plaintiff’s motion for a new trial.
    8. That the said judgment was given for the said Alfred 'Combs, when it ought to have been given for these plaintiffs, according to the law of the land.

      The district court, on hearing of this petition, found there was no error, and affirmed the judgment.
    And thereupon, by leave of court, they presented their petition in error in the Supreme Court, claiming that the-district court erred in sustaining the judgment of the court' of common pleas.

      II. II. Moses, for plaintiff in error :
    A magistrate is not liable for injuries resulting from his. errors of judgment, while in the discharge of his duties. Wickman v. Bryan, 11 Wend. 545 ; 7 Wend. 200; Pratt v. Gardner, 2 Cush. 63 ; Yates v. Lansing, Jr., 9 Johns. 396 ; Gregory v. Brown, 4 Bibb (Ky.), 28 ; Randall v. Brigham, 7 Wall. 523 ; Mills v. Callet, 6 Bing. 85 ; Stewart v. Hanley, 21 Wend. 551; 7 How. (N. Y.) Pr. 399 ; Bradley v. Fisher,. 7 Wall. 335 ; Davis v. State, 19 Ohio St. 270. Pure intentions and honest endeavor to perform his official duty protects him. Yates v. Lansing, 9 Johns. 452 ; 19 Barb. 283..

      George M. Tuttle, for defendant in error :
    As to the liability of the justice, see Harmon v. Gould, Wright, 710; Pickard v. Bills, Wright, 344; 2 Hilliard on Torts, 168, 172, 173; Kelly v. Burns, 4 Gray, 83 ; Addison on Torts, §§ 966, 969, 972.
   Scott, J.

By section 14 of the bill of rights, embodied in the constitution of this state, it is declared that “ the right of the people to be secure in their persons against unreasonable . . seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation,” etc.

This safeguard against unreasonable seizures the legislature has undertaken to carry into effect, by prescribing the-conditions under which the power to issue process for the apprehension of alleged criminals maybe exercised by justices of the peace.

The power is conferred and the conditions of its exercise are prescribed by sections 23 and 24 of the code of criminal procedure (66 Ohio L. 291), which are as follows :

“ Sec. 23. The magistrates enumerated in the first sec-lion of this code shall have power to issue process for the apprehension of any person charged with a criminal offense, and to execute the powers and duties conferred in this title.

“ Sec. 24. "Whenever a complaiut in writing and upon oath, signed by the complainant, shall be filed with the-magistrate, charging any person with the commission of an offense, it shall be the duty of such magistrate to issue a warrant for the arrest of the person accused, if he shall have reasonable grounds to believe that the offeuse has been committed.”

In this case the written complaint made by Truesdell, and recited in the warrant issued by the justice, very clearly contained no charge of the commission of a criminal offense by any one. The acts charged to have been committed by Combs would, if truly stated, show him guilty of a bare trespass. If we suppose both the plaintiffs in error to have been honestly mistaken, yet their mistake was. one of law, not of fact. They were ignorant of the distinction between a mere trespass committed under a claim of right and larceny. By their testimony on the trial below, they both show that the acts complained of by Trues-dell w’ere fully stated by him to the justice before the complaint was drawn up by the latter, and they are correctly stated in the complaint. On such a state of facts, the justice had no authority to issue a warrant. His mistaken belief that the statute gave him power to issue a states warrant on such a complaint could not confer jurisdiction, nor legalize his usurpation of authority.

It is true, that justices of the peace, while acting within the scope of their authority, as well as the judges of the higher courts, are not answerable in a private action for the erroneous exercise of the judicial functions with which they are invested by law. Such protection is essential to. the honest and independent administration of justice. Pratt v. Gardner, 2 Cush. 68; Yates v. Lansing, 5 Johns. 282 ; 9 Johns. 895 ; and authorities there cited.

But, on the other hand, it would seem to be well settled that inferior tribunals, invested with special jurisdiction only, and persons clothed with limited authority, such as justices of the peace, must, at their peril, keep within their prescribed jurisdiction; and if they transcend the limits of their authority, they are answerable to any one whose rights are thereby invaded. And honesty of purpose, in such a case, while it may mitigate, damages, can not justify .a clear usurpation of powér. Clark v. May, 2 Cray, 410 ; Knowles v. Davis, 2 Allen, 61; Cohoon v. Speed, 2 Jones (Law), 133 ; Lawrenson v. Hill, 10 Tr. C. L. 177.

If this view of the law be correct, it is clear that the second instruction asked to be given to the jury was properly refused. The question was as to the authority of the justice to issue the warrant for the arrest of Combs, under the oircumstances stated. The limits of his authority were defined by the statute, and could not be affected, either by his ignorance or his honesty.

Whether the first instruction asked for was given or refused by the court below, does not very clearly appear from, the record. But, assuming it to have been refused, as is claimed by plaintiffs in error, we think such refusal was not error. Counsel thought by that instruction to have the jury pass upon a question of fact, not put in issue by the pleadings ; that is to say, whether Combs had in fact been guilty of stealing milk from Truesdell; and to have them instructed that if they found him guilty of such stealing, .-and if it was the intent to charge him with such stealing in the complaint, then the defendants would be entitled to .a verdict. We find no evidence, offered on the trial, tending to prove, a felonious intent on the part of Combs in .milking the cow, the ownership of which was in dispute between himself and Truesdell. There was no evidence tending to prove anything more culpable than was alleged in the complaint; and certainly none which would have warranted the finding contemplated by the instruction asked. The answer of defendants below had not alleged that Combs had in fact been guilty of stealing, but only that Truesdell when he made the complaint believed him to be thus guilty. Under these circumstances, the instruction asked could only .have misled the jury.

Another ground of the motion for a new trial was error in the charge of the court. But as no part of the charge is found in the record, we must presume that it was in all •respects unexceptionable.

A further ground of the motion for a new trial is that the verdict was against the weight of the evidence and the ’law of the case. We do not think this ground is sustained 'by the record, and conceive it to be unnecessary, on this .subject, to add anything to what has been already said.

The only remaining ground of the motion is that the damages awarded by the jury were excessive.

The case was not without circumstances of aggravation. The plaintiff below was kept under arrest for'some threp days ; procured his x-elease by the payment of twelve dollars ; was subjected among his neighbors to the humiliating charge of pettit lax-ceny ; and this chax’ge the plaintiffs in error, through their counsel, seem to have pei’sisted in xxxaking upon the trial in the coxxx’t below.

If the jury fouixd this charge to be wholly unsupported 'by the evidence, as we think they well might, we can not say that their verdict for $150 was the result of anything •else than the exex’cise of their cool, dispassionate judgments.

We find no exror in the overruling of the motion for a xxew tidal, and think the jxxdgmeixt of the common pleas was pi’operly affirmed by the district court.

Judgment of the district court affirmed.


author: Day, J.

text:
    Pittsburgh, Fort Wayne and Chicago Railway Company v. Arteman F. Lewis.
    1. A master, whether an individual or a corporation, is responsible to his • servants for his own negligence ; but, as a general rule, not for that of their fellow servants,
    2. Where, however, a master places one servant in a position of subordination to another servant, and the subordinate servant, without fault, is injured through the negligence of the superior servant, while both are acting in the common service, the master is liable therefor.
    3. Whether or not one servant is placed by a common master under the control of another servant, thereby creating the relation of superior and subordinate between them, must be determined from the evidence in each particular case-

      4. Where an engineer and brakeman were employed by a railroad company in operating the same train, and there was no evidence to prove that the brakeman was placed in a position of subordination to the engineer, other than what may be implied from the rules of the company, requiring the engineer to give certain specified signals as “ a notice” to apply or loose the brakes, and requiring the brakeman to manage the brakes “ according to circumstances and the signals of the engineman,” and placing the brakeman, while on the train, in subordination to the conductor : Held, That the engineer and brakeman were servants of the company engaged in a common service; that the relation of superior' and subordinate did not exist between them; and that, therefore, the companj'' was not responsible to the brakeman for an injury occasioned by the negligence of the engineer.
    5. Where in an action, brought in this state against a master by a servant, for an injury sustained in another state through the negligence of a superior servant while engaged in the same service, and the answer merely stated that, by the law of that state, the servant has no action against the master for the negligence of his fellow servant: Held, That the answer fails to meet the case, in not stating what the law of that state was, when the negligence complained of is that of a superior servant, and that a demurrer to the answer may, for that reason, be sustained.
    Error to the District Court of Crawford county.
    The original action was brought in the Court of Common Pleas, of Crawford county, by Artemau F. Lewis, against the Pittsburgh, Fort Wayne, and Chicago Railway Com,-pany, to recover damages for an injury which he sustained, while in the discharge of his duties as brakeman on a train of the company, by reason of the negligence of the conductor .and engineer of the same train.
    He alleges, in his petition, that he was employed by the company, at Alliance, in the State of Ohio, as brakeman; that the railroad of the company extended from Chicago through the States of Illinois, Indiana, and Ohio, to Pittsburgh in the State of Pennsylvania; that he was placed as brakeman on a local freight train running from Alliance to Pittsburgh and return on alternate days; that while engaged in shifting cars from the. side track to the main track, at Rochester, in the State of Pennsylvania, he was thrown from the cars and his left arm cut off by the wheels of the cars; that he was thrown off' b}7 the cars starting suddenly forward, and his arm injured by their being then started suddenly backward over him; that no signal was given for starting the train either forward or backward, whereby he sustained the injury; that the requisite signals ought to have been given by the conductor and engineer; and that, without fault on his part, his injury was occasioned by the negligence of the conductor and engineer ■ employed by the company.
    The company answered, setting up two defenses: 1. A •denial of the allegations relating to the injury. 2. That under the laws of the State of Pennsylvania, where the injury occurred, “an employe has no action against his principal or employer, for the negligence of a fellow employe engaged in the same employment.”
    The plaintiff demurred to the second defense, and the court sustained the demurrer.
    The case was tried to a jury, and a verdict rendered •against the company for $5,741. The company moved for .a new trial on the ground that the verdict was against the law' and the evidence. The motion was overruled, and the company filed a bill of exceptions, embodying all the evidence. Judgment was rendered against the company. The ..district court, on error, affirmed the judgment. To reverse these judgments the company prosecuted its petition in error in the Supreme Court.

      R. McKelly, for plaintiff in error.
    (No brief for plaintiff in error, came to the hands of the-Reporter.)

      Thomas Emery, and Nathan Jones, for defendant in error:-
    As to the rule of respondeat superior, see Railroad v. Devinney, 17 Ohio St. 197; Railroad v. Stevens, 20 Ohio, 415; Railroad v. Keary, 3 Ohio St. 201; Railroad v. Collins, 2 Duvall (Ky.), 114.
    If the law of Pennsylvania forms a part of the case, was that law so pleaded as that the demurrer should have been* overruled, and the defendant below permitted to prove differences, if any existing, between that law and the lex fori?

    This subject is fully considered in Roots v. Merriwether,. 8 Bush (Ky.), 397 ; and see Jones v. Bank, 8 B. Mon. 122; Collett v. Keith, 2 East. 260; Hawes v. Braughton, 10 Wend. 75.
   Day, J.

Two questions are presented: 1. Did the-court érr in sustaining the demurrer of the plaintiff to the-second defense in the answer of the company? 2. Did the-court err in overruling the motion of the company for a new trial?

It is merely averred in the second defense that, by the law of Pennsylvania, where the injury occurred, “ an employe has no action against his principal or employer for the negligence of a fellow employe engaged in the same common employment.” This is nothing more thau a statement of what is recognized as a general principle in the law of this state. Had the action-been founded merely on the negligence of a fellow servant engaged in the same-employment, the demurrer, to the answer, ought to have been sustained to the petition, as the first defective pleading, for it would not have shown a cause of action. But-the case made in the petition does not rest alone on that averment. It is alleged that the injured servant was subordinate to the negligent servant, thereby bringing the ease-within an exception to the general rule. That allegation was the gist of the action, and the second defense does not meet it. It is not averred what the law of Pennsylvania is-in such cases. The court, therefore, well might sustain the-demurrer to that defense.

The motion for a new trial raises the question whether,, upon the whole evidence, the plaintiff below was, in law, entitled to recover.

lie rested the case upon his own evidence alone. All the other employes on the train but the engineer, who had died, contradicted him upon every material point. But, conceding that the jury were warranted in believing his testimony against that of four other witnesses, was he entitled to recover on the most favorable view of the evidence ?

The action was founded upon the alleged negligence of the conductor and engineer. There was, however, no evidence implicating the conductor. Nor, indeed, did it implicate the deceased engineer in the negligence charged, for the plaintiff below testified that the engineer -was absent from the engine when the accident occurred, and that it was, at that time, under the sole control of the fireman.

The case, then, rests wholly upon the supposed negligence of the fireman in failing to give the signals required by the rules of the company for the starting of trains.

But, regarding the fireman as engineer pro hac vice, the question then is, whether the company is liable to a brakeman for an injury occasioned by the negligence of an engineer, where both were employes of the company on the same train.

Both were employes of one master, and were engaged in carrying out a common object;they were therefore, fellow-servants. Manoille v. C. § T. R. R., 11 Ohio St. 417.

A master, whether an individual or a corporation, is responsible to his servants for his own negligence, but not for that of their fellow-servants. This is the general rule, subject, however, to the modification recognized in the jurisprudence of this state, that where one servant is placed in a position of subordination to, and subject to, the orders and control of another servant of a common master, and tb e subordinate servant, without his fault, is injured tin ough the negligence of the superior servant while both are acting in the common service, the master is liable therefore. P., Ft. W. & C. R. W. Co. v. Devinney, 17 Ohio St. 197; Berea Stone Co. v. Kraft, 31 Ohio St. 287.

Nor, indeed, is this modification inconsistent with the general rule; it proceeds upon the idea that the superior servant, quoad his subordinate, is the representative, or alter ego, of the master; therefore the negligence of such •superior servant is regarded as the negligence of the master.

Whether regarded' as a modification of, or an exception to, the general rule, it has ever been strictly confined to •cases where the superior servant represents the power or authority of the master over the subordinate servant, and is one to whom he must look and obey as one having the authority of the master over him. Such an agency must not be confounded with the position of one charged with special duties to be performed under general or special instructions from the master, who retains the general supervision of the business, or had committed it to a servant - to whom and to whose direction all the others are subject.

The rule, then, as modified, rests upon the idea that one who enters the service of another takes the ordinary risks of the employment in which he engages, including the negligent acts of his fellow-servants in the course of the employment, but does not take the risk arising from the negligence of the master himself, nor of a servant whom the master has placed in his own position of authority over him.

Whether one servant is placed by a common master under the authority or government of another servant, thereby creating the relation of superior and subordinate between them, is a question to be determined from the evidence in each particular case.

The only evidence relied on in the present ease to estab'list that relation between a brakeman and an engineer, was tke rules of the company requiring a brakeman to apply and loosen brakes upon certain specified signals of tke engine whistle, when given by tke engineer in accordance with tke rules.

No special authority was proved. Tke rules of tke company, which all its employes agree to obey, carefully specify, as to each of tke numerous classes of its employes, to whom they shall respectively be subordinate. They place tke fireman under tke control of tke engineer, but they do not place a brakeman under tke control of, or subordinate to, an engineer. They provide that brakemen shall receive their instructions from tke division superintendent, and that, “ while on tke train, they shall be under tke immedi,ate orders of tke conductor, whose orders they shall obey.”

Among tke signals to be given under tke rules by an engineer, only two relate to tke duties of brakemen, viz.: “ One blast of tke whistle when running, is a danger signal, and a notice to apply tke brakes; two blasts of tke whistle is a notice to loose tke brakes.” Many other signals are required to be given by engineers as notices, but not as notices to brakemen more than to others as to whom there is no pretense of subordination to tke engineer created thereby.

By tke company’s rules, freight brakemen “ are charged with tke management of tke brakes according to circumstances and the signals of tke engineman.” "When tke op•eratiou of tke train requires tke brakes to be applied or loosed, tke engineer is required by tke company to give a ■“ notice ” (not an order) by a specified signal, and tke brakeman is required, by tke rules of tke company (not the command of tke engineer), to manage tke brakes in accordance with the notice. Each one acts under tke special command of the company, and neither is responsible to tke other; but both perform their respective duties under tke control of, and subordinate to, tke conductor. Tke rules clo not •subject a brakeman, while on tke train, to tke authority of two superiors — they commit that to one servant only. There is nothing in the duties required of brakemen which requires that they should be subordinate to the authority of an engineer; therefore no such authority is given him.. He is merely required to give “ notice ” of what aid is needed in the working of the train, and the company supply the needed aid through the brakemen, whom it has expressly required to perform their duties under the control of the conductor, and not of the engineer.

To secure the safe management and transit of trains, and' the safety of passengers, employes, and others, from the-nature of the business, many signals, and of various kinds,, are required. They are required, by the rules, to be given hy all classes of employes, conductors, engineers, brakemen,. switchmen, stationmen, flagmen, trackmen. A corresponding duty of heeding signals is required of all employes, without reference to their grade of employment; and yet it was never supposed that thereby any relation of superior and subordinate was created or necessarily existed. The-system of giving notice by signals is a mere mode of doing-the business of the company, arising from the necessity of the case. They are to be given and heeded by both superiors and subordinates, in accordance with the nature of the thing to be done, or as circumstances may require. It is-as much 'the duty of an engineer to be controlled by the-signals of brakemen, given under the rules of the company, as it is the duty of brakemen to be governed by'the-signals of an engineer, given under the same rules, and neither one, more than the other, is thereby made subordinate to the other. That relation can be created only by the-act of the master conferring his authority upon one over the other ; when that is done, then one represents the authority of the master, and therefore may control the other, who, for that reason, becomes his subordinate. No such relation of superior and subordinate is shown to have existed between the engineer and brakeman'in this case; therefore they were fellow-servants, within the general rule, which gives no right of action against the company for an injury sustained by one through the negligence of the other.

It follows that the court erred in overruling the motion for a new trial, and that the judgment of the court of common pleas and that of the district court must be reversed

Scott and Ashburn, JJ., dissented.