author: Dickman, J.

text:
    Kelly & Sons v. Howell.
    1. Where there is evidence tending to prove negligence on the part of the defendant, and also evidence from which the proper inference to .be drawn as to fault on the plaintiff’s part is doubtful, it should be submitted to the jury to determine whether the plaintiff was injured by his own fault or that of the defendant.
    2. A contractor agreed with the owners of a mine to do certain work therein, the owners engaging to furnish and put up such props or supports for the roof of the mine as would render the miners secure, whenever notified by the contractor that the same were necessary.

      Held: That although such notice from the contractor may. not have been received by the owners, the owners, if they had actual knowledge that such supports were necessary, became liable in damages to an employe of the contractor, who, without negligence on his own part, had been injured while at work in the mine, through the want of such supports for the roof.
    Error to the District Court of Lawrence County.
    The original action was commenced in the court of common pleas of -Lawrence county, by the defendant in error, John A. Howell, against the plaintiffs in error, William D. Kelly, Lindsey Kelly and Ironton Kelly, co-partners doing business under the firm name of W. D. Kelly & Sons. The petition alleges that the defendants, being the owners and operators of certain mines of iron ore and limestone in the vicinity of Ironton, in said county? engaged and contracted with one David Greathouse to excavate and remove from one of the mines iron ore and limestone therein, the defendants at the same time agreeing and undertaking to do all the “ dead work ” in and about the mine for Greathouse, as a' part of the contract, which “ dead work ” consisted mainly in the protection and care of the mine, so as to protect the workmen therein against danger from the falling of ■the roof or stone covering overhead.
    That Howell, well knowing the premises, and particularly that the defendants had so engaged with and promised Greathouse to do all the “dead work” in and about the mine, and to take such care of the same as would render the miners therein secure, and relying fully upon the good faith, diligence, care and skill of the defendants, with their large experience in working mines, to keep the mine of Greathouse in a safe condition, did, on the 10th day of November, 1880, undertake to mine iron ore and limestone therein, and worked in the same as such miner for Great-house until the 14th day of January, 1881. That the defendants did not use due and proper care, diligence and skill in the protection and care of the mine, but failed and neglected to prop and protect the roof of the room of the mine in which Howell was at work, whereby a portion of the slate over the room became detached, and fell upon him, without any negligence or fault on his part, and inflicted upon him severe bodily injuries.
    The answer denies that the defendants, or either of them, were guilty of the negligence charged in the petition, and alleges that Howell himself, by his own negligence, occurring at the time, caused the injury complained of, or at least contributed to the injury. The answer also denies that by the terms of the contract entered into with Greathouse the defendants, Lindsey Kelly and Ironton Kelly, were in any way connected therewith, or had any interest therein; and alleges that the agreement was made by and between Great-house and William D. Kelly; and that by the terms of the agreement William D. Kelly was to furnish and put up props or posts to support the roof of the mine when notified by Greathouse that the same were necessary, but that no notice that such posts were needed was given to William D. Kelly prior to the injury complained of.
    The answer further denies that the defendants had any ownership or control of the mine in which Greathouse or Howell was mining iron ore or limestone, and denies that they, or either of them, are in way liable to Howell on account of-the alleged injury.
    At the trial in the court of common pleas, Howell gave evidence to the jury tending to maintain the issue on his part, and to prove, among other things, that the defendants owned a limestone and iron ore mine, near Ironton, which was operated by horizontal entries driven into' a hill-side, with rooms on both sides of such entries. That this mine was worked by Greathouse under a contract with William D. Kelly, acting in behalf of Kelly & Sons, that they would do all the “ dead work,” so called, in and about the mine, for Greathouse, as a part of the contract, and would take good care of the roof of the mine and keep it in a condition safe for miners — the said William D. Kelly to furnish and put up props to support the roof when notified by Greathouse that the same were necessary. That Howell, at the time of his injury, was an employé of Great-house, at work in the mine, where he was injured from the failure to prop and protect the roof of the mine, by a portion of the slate over the room in which he worked becoming detached and falling upon him. That the room in which Howell was injured was about 18 feet wide by 80 feet long, with fire clay roof unprotected; that in order to make such roof safe, in a room of that size, posts and caps for the support of the roof were necessary. That William D. Kelly had actual knowledge that props were needed for the support of the roof of the room in which Howell was at work; that he was in the room where Howell was hurt only three days before the occurrence, and his attention was then called to the’necessity, of propping the roof in order to make it safe, and he then promised to furnish and put up the requisite posts or supports. That for the safety of miners it had become the ordinary practice in that mining region to use props and caps for the protection of slate or clay roof. That just before Howell was injured there had been a blasting of limestone with gunpowder in the room in which he worked, and as soon as the smoke had cleared away he entered the room and resumed work, without testing or sounding the roof, to discover what might be the effect of the blasting or explosion as to loosening the slate or clay overhead. It was contended by the defendants that in thus going into the room without the precaution of first testing the roof, the plaintiff was negligent, and contributed to his own injury.
    The plaintiff having introduced all his evidence in support oí his alleged cause of action, and rested his case, the defendants, without introducing any evidence on their part, moved the court to adjudge said evidence of the plaintiff, as matter of law, insufficient to support the plaintiff’s cause of action, and to direct the jury to return a verdict for the defendants, which motion was sustained by the court, and the jury under such instruction returned their verdict in favor of the defendants. Judgment was entered on the verdict; the district court reversed the judgment of the court of common pleas and remanded the cause for a new trial, and this proceeding is now prosecuted by W. D. Kelly & Sons, to reverse the judgment of the district court.

      E. V. Dean and W A. Hutchins, for plaintiffs in error.

      Ralph Leete, for defendant in error.
   Dickman, J.

In order to maintain his action, it was incumbent on the plaintiff Howell, to prove that he was injured through the fault of the defendants; and he could-not recover for his injury, if he in any degree contributed to it- by his own negligence. But, whether negligence can be imputed to a defendant or contributory negligence to a plaintiff, is generally a mixed question of law and fact, to be submitted to the jury under proper instructions from the court. In a proper case, the court may take from the jury the evidence given by the plaintiff and render judgment for the defendant, or may attain the same end, by-submitting the case to the jury with instructions to return a verdict for the defendant. But, as said in Stockstill v. D. & M. R. R. Co., 24 Ohio St., 83, “if the evidence tends, in any degree, to prove all the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has a right to have the weight and sufficiency of the-evidence passed upon by the jury, and it is error for the court to grant the motion, and render judgment against him.” And in an action to recover for an injury, where there is evidence tending to prove negligence on the defendant’s part, and also evidence from which the proper inference to be drawn as to fault on the plaintiff’s part is doubtful, it should be left to the jury to determine, whether the plaintiff was injured by his own fault or that of the defendant. An examination of the record discloses, that evidence was given to the jury by the plaintiff tending to prove that the defendants had been negligent in not securely propping the roof of the mine, and also evidence from which it might be doubtful what inference would be drawn, as to contributory negligence on the plaintiff’s part, in not testing the roof before resuming work in the mine immediately after the blasting with gunpowder. The weight and sufficiency of this evidence, it was the right of the plaintiff, to have passed upon by the jury, and in our opinion, the court erred in withdrawing it from their consideration.

The question arises, whether, if the evidence had been allowed to go to the jury, the relation of the firm of Kelly & Sons to Howell was such, as to preclude their liability to him for the injury he received. Howell was the employé of an independent contractor Greathouse, who had agreed with that firm, through W. D. Kelly, one of its members, to excavate and remove limestone and iron ore from the mine — W. D. Kelly to take personal charge of furnishing and putting up such props, posts or supports for the roof of the mine as would render the miners secure, whenever notified by the contractor that the same were necessary. In the absence of contributory negligence on the part of the employé, Howell, the firm, we think, would be liable to him if he was injured through a neglect to put up the supports requisite for workmen in the mine. Such liability would exist, not by virtue of any privity of contract between Kelly & Sons and Howell, but independently of the contract. The mining work being done through the firm’s own procurement, for their own use and benefit, and upon their own premises over which they retained a superintendence for the miners’ protection, they owed a duty toward the contractor’s servants to keep the premises in a reasonably safe condition. Howell did not go upon the premises as a mere volunteer, but had the right to go there as an employé of the contractor. Kelly & Sons must have known, that the servants or employés of the contractor would be at work in the mine, and they retained within their own control the furnishing of the appliances that would be needed to protect the employés against a falling of the roof. They virtually stepped in between the contractor and his servants, and took the security of the servants into their own hands. As between Kelly & Sons and the contractor, the firm would be exempt from liability to him for their omission to put the necessary props in the mine, if he failed to give them due notice of the necessity of propping the roof. But, though the firm may not have received the notice from the contractor, having assumed the obligation of protecting the miners against danger, they cannot evade their duty toward the ' contractor’s emplojAs, who came upon their premises with the knowledge-and in the confidence that they were to provide adequate safeguards against injury. If Kelly & Sons received no notice from Great-house, still, they were not ignorant of the dangerous condition of the roof under which Howell was engaged in mining. There is evidence tending to show, that W. D. Kelly, the leading member of the firm, had actual knowledge of the unsafe condition of the room in which Howell was working, irrespective of any information which he might derive through Greathouse. He was in the room only three days before Howell was hurt, and personally inspected the roof, and upon being told that it was insecure, promised to have sufficient posts and caps put up. Nor did he rely solely upon the judgment of Greathouse, and the information he was to receive from him, in determining the necessity of propping the roof, for he himself was in the habit of going through the mine and sounding the roof, and relying upon his own judgment and experience, did not hesitate to give his opinion as to the safety of the room in which Howell was injured. The case of Coughtry v. Globe Woolen Co., 56 N. Y., 124, is somewhat analogous in principle to the present one, and is illustrative of the views which we have advanced. Osborne & Martin contracted to put up a new iron cornice upon the defendant’s mill, any-scaffolding required for that purpose to be erected free of cost to them. The plaintiff’s intestate, a workman in the employ of Osborne & Martin, while engaged in putting up the cornice, was killed by the fall of a scaffold erected by the defendant for the purpose of the work. In an action to recover damages, the plaintiff was non-suited, upon the ground that the defendant owed no duty to the deceased in respect to the construction of the scaffold. It was held, however, on error, that the scaffolding being erected by the defendant upon its own premises for the express purpose of accommodating the workmen, a duty was imposed upon it toward them to use proper diligence in constructing and maintaining the structure; and that this duty existed, independently of the contract.

It is contended that'Howell did not file the proper transcript with his petition in error, and that therefore the district court did not acquire jurisdiction over the subject-matter of the cause. From an examination of the record before us, we discover no satisfactory reason for holding, that the district court did not properly have before it all that was necessary to exhibit the error complained of. The jurisdiction of the district court is therefore sustained, and its judgment affirmed.

Judgment accordingly.


source: Caselaw Access Project

author: Granger, C. J.

license: Public Domain

text:
    Brown v. Bank.
    B. was pressed by bwo judgment creditors. G. loaned to bim $22,000 of stock in a corporation. Pledging this to a bank, B. borrowed upon his own notes a sum equal to both judgments, and placed it in the hands of G.’s attorneys, with authority to buy the judgments for G. This being done, B., by writing, pledged to G. sundry collaterals, and also said judgments to secure the return of the borrowed stock, or its agreed value, with interest, by a day named. In case of default G. was empowered to put the collaterals to sale. Default occurred and sales were made. G., by B.’s express consent, was a bidder. He bought sundry collaterals, and also the judgments ; and afterwards assigned the larger judgment for value to M., who had notice of the foregoing* facts. Held:

    1. G. did not hold the judgments as pledges, but as parcel of B.’s debt to him, which B. could pay by returning the stock within the stipulated time.
    2. B. is not entitled to any credit for the sums at which G. bid in said judgments; or for the proceeds of G.’s sale of the decree to M.
    3. M. cannot collect upon the judgment assigned to him, more than its proportion of B.’s unpaid debt to G„ as it was at the date of M.’s purchase, and the interest thereon.
    Ebbob to the District Court of Lucas County.
    On August 26,1876, Harriet O. Holmes, holding a decree in Lucas Common Pleas against Theophilus P. Brown for $13,605(^5-, on wliicb interest ran from October 18, 1875, was about to put the mortgaged premises to sale. The Merchants National Bank of Toledo, at the same time, was about to enforce an execution against Brown upon a judgment in its favor for over $7,000. To prevent sales thereunder, Brown borrowed of Wilson W. Griffith $22,000 (par) of the stock of the Milburn Wagon Company, and pledging said stock to the said bank as collateral to a new note for $22,000 made bjr him alone, received as discount on said note $21,538. This sum, with $222.53, proceeds of another note of Brown’s, was placed by the bank, with Brown’s consent, in the hands of Osborn & Swayne, attorneys. The following letter is their report of the application of these moneys:

      Toledo, O., Aug. 28, 1876.
    T. P. Bbown, Esq.,
    cor. Monroe and Summit St., City.
    ■ Dear Sir — We beg to advise you of the following transactions made by us, for your account this day:
    Received of Merchants National Bank of Toledo, proceeds of note for twenty-two thousand dollars,.....$21,588 00
    Received of same, proceeds of note for $225, 222 53
    $21,760 53
    Paid Merchants National Bank amount due on judgment assigned at your request to W. W. Griffith as security, . . . $7,233 33
    Paid Calvin Holmes amount due on judgment assigned to W. W. Griffith as collateral, . 13,808 65
    Paid Osborn & Swayne amount due from Merchants National Bank, for taking judgment on cognovit for $7,000, ... 25 00
    Paid Wilson W. Griffith as directed by you, 500 00
    Paid Osborn & Swayne in matter between T. P. Brown and W. W. Griffith, ... 100 00
    $21,666 98
    Cash reserved to apply on settlement, . . 93 -58
    Yours very truly,
    Osbobn & Swayne.
    The following receipt was taken byOsborn and Swayne:
    Received of Osborn & Swayne, attorneys-at-law, the following described moneys and securities paid and delivered to us for account of Harriet O. Holmes.
    First — A certified check of Wager Swayne on the Merchants National Bank of Toledo, Ohio, for $13,808.65, payable in New York Exchange.
    Second — Note of T. P. Brown to Harriet O. Holmes, or order, for five hundred dollars, dated Toledo, Ohio, August 26th, 1876, and payable sixty days after date to the order of John D. Irving, and by said Irving duly endorsed.
    Third — As collateral security, to the above, seven notes of John M. Bridenbaugh, dated Toledo, Ohio, October 28, 1875, each for the sum of one hundred and twenty-five dollars, and payable twelve, eighteen, twenty-four, thirty, thirty-six, forty-two and forty-eight months after date, to the order of T. P. Brown, which notes are by the said T. P. Brown duty endorsed.
    Also a deed and mortgage from said John M. Bridenbaugh to secure the payment of the notes last above mentioned, which deed conveys to the said T. P. Brown lot number three hundred and fifteen (315), in T. P. Brown’s Addition to the City of Toledo, Ohio, and is by the said T. P. Brown assigned and transferred to Harriet O. Holmes, by endorsement upon said mortgage.
    Also a memorandum of title to the above premises, made by Messrs. Lenderson & Lang.
    Also policy of insurance number 7816, issued November 1st, 1875, by the Phoenix Insurance Company, of Hartford, Conn., to the said John M. Bridenbaugh, insuring the dwelling on said lot for seven hundred dollars, which policy is, by endorsement thereon made, payable to the said Harriet 0. Holmes or order, in the event of loss.
    Upon payment of said note for $500, the collaterals above mentioned are to be returned to said Osborn & Swayne.
    Harriet O. Holmes,
    August 28th, 1876. By C. Holmes, Agent.

    The assignments were in the following forms:
    Harriet O. Holmes, v. Theophiltts P. Brown, et al. Lucas County Common Pleas.
    Judgment against defendant, T. P. Brown, with order of sale, $13,605.71. Interest from October 18th, 1875.
    Judgment v. defendant, T. P. Brown, also for costs. For value, I hereby assign to Wilson W. Griffith, the aforesaid judgment, and order of sale, and all my rights therein.

      The said Griffith to save me harmless and free from payment of all costs hereinbefore made, and also from any that may hereinafter accrue. The said Griffith shall have the right to enforce said judgment and order of sale in my name, but at his own costs.
    Harriet O. Holmes,
    By C. Holmes, Agent.

    Toledo, O., August 28, 1876.
    In consideration of the sum of seven thousand two hundred and thirty-three and 33-100 dollars this day, paid to the Merchants National Bank of Toledo, Ohio, by Osborn & Swayne, attorneys-at-law, said bank does hereby sell, assign and transfer to Messrs. Osborn & Swayne, attorneys-at-law, as trustees to whom it may concern, the judgment rendered in May last by Lucas County Court of Common Pleas in favor of said bank and against Theophilus P. Brown for the sum of seven thousand dollars, hereby authorizing said Osborn & Swayne or their assigns to proceed in the name of this bank to the enforcement and collection of said judgment.
    The Merchants National Bank of Toledo, Ohio, by “ Chas. C. Doolittle, Cashier.

    The following agreement was made on the same day:
    This agreement, made at Toledo, Ohio, this twenty-eighth day of August, A. d. 1876, by and between Wilson W. Griffith, party of the first part, and Theophilus P. Brown, party of the second part, witnesseth:
    First — -The said Wilson W. Griffith, in consideration of the covenants hereinafter set forth, on the part of said Brown, has this day loaned said Brown twenty-two thousand dollars (par), of the stock of the Milburn Wagon Company, of Toledo, Ohio.
    Second — -.The said Brown, in consideration of the premises, hereby covenants to return the same to the said Griffith, at the expiration of sixty days, and also to pay said Griffith for the use of said stock, a sum of money equal to eight per centum per annum on the par value thereof. And if the said stock shall be returned to said Griffith by said Brown, at a day later than the expiration of sixty days, as above mentioned, then the said Brown is to pajr the said Griffith at the rate of eight per cent, per annum on the par value of said stock, for the time the same is detained by him after the expiration of the sixty days.
    Third — To secure the return of the said stock, the said Brown has deposited with Osborn & S wayne, attorneys, for the said Griffith, the following securities, to wit: An assignment to said Griffith by Harriet O. Holmes — née Hall — of the judgment and decree rendered in her .favor against said Brown, in the court of common pleas of Lucas county, Ohio, at the October term of said court, A. d. 1875; also a note and mortgage of Francis A. Brown and T. P. Brown, for five thousand dollars, dated Toledo, Ohio, July 24th, 1876, payable six months after date, to the order of John D. Irving, and endorsed by the payee thereof; also a certain note and mortgage of Marion A. and H. 0. Hahn, for five thousand dollars, accompanied by policies of insurance, and lately in the custody of the Merchants National Bank of Toledo, Ohio; also fifteen thousand dollars, more or less, par value, of the shares of the Dorr Street Railroad, in Toledo, Ohio, being the same stock which was lately in the custody of the Merchants National Bank of Toledo, Ohio; also three bonds of five hundred dollars each, issued by the Toledo Carriage and Variety Company, 'being the same bonds lately in the custody of the said Merchants Bank; also an assignment by the Merchants National Bank of a certain judgment recovered by said Bank against. said Brown, for seven thousand dollars.
    Fourth — Whereas, certain portions of the property covered by the judgment and decree first above mentioned, have been sold and contracted to be conveyed by the said T. P. Brown, to divers parties, it is hereby mutually stipulated that all contracts in writing now existing on the part of said T. P. Brown, for the sale of portions of the premises covered by said judgment may be carried out by him, and the said Osborn & Swayne, attorneys, shall release such portions of said premises from the operation of said judgment, upon receiving for account of the said Griffith such part of the consideration for such contracts as has not yet been paid, provided, that if such payments are, by the terms of said contract, payable in notes, the same shall be secured by mortgage lien not inferior to the lien of said judgment and decree.
    ■ Fifth — In case the said stock shall not be returned promptly at the expiration of said sixty days, together with all dividends which may meantime have been paid upon the shares, the said Griffith may then or at any time thereafter declare this contract to be evidence of a matured indebtedness equal to the par value of so much of said stock as shall not have been returned, with twenty per cent, premium thereon, the same being the value of said stock as mutually agreed, together with the amount due to said Griffith for the use of said stock under this agreement, and all dividends which may in the meantime have been declared upon said stock. And the said Griffith shall thereupon be at liberty to sell and dispose of, to the highest bidder, at public auction, and upon five days’ advertisement in one or more of the daily papers of the city of Toledo, any or all of the securities above described, and to apply the proceeds of said sale in satisfaction of said debt, or the said Griffith may, at his option, proceed to enforce by process of law the mortgages, judgments and decrees above set forth, or any or all of them, and to apply the proceeds thereof in satisfaction of the said debt.
    Sixth — The said Brown is to pay the reasonable charges of the attorneys above mentioned, and also their charges against the Merchants National Bank for services in the matter of the loan heretofore made by said bank to said Brown, and in default of payment by said Brown, the said Griffith is authorized to pay the same from the. proceeds of sales of the securities above mentioned.
    Witness our hands the day and year above written.
    (Signed) Wilson W. Griffith.
    T. P. Brown.

      Brown did not return the stock, and the following letters passed:
    Toledo, O., February 6,1877.
    T. P. Brown, Esq.,

      Dear Sir — Please take notice that in default of the return to me of the certificate of stock in the Milburn Wagon Company, of the par value of twenty-two thousand dollars, loaned to you by me on the twenty-eighth of August, 1876, I have this day exercised my right under our contract of that date, and hereby declare you indebted to me as follows under said contract:
    Agreed -value of said stock, at one hundred and twenty dollars per share, $22,000 at $120, . $26,400
    Eight per cent, per annum on the par value of said stock, from Aug. 28, ’76, to Feb. 6, ’77, 777.25
    $27,177.25
    Unless the amount is immediately paid, I shall find myself compelled to resort to a sale of the hypothecated securities.
    Yours very truly,
    W. W. Griffith.
    Messrs. Osborn & Swaxne,

      Gentlemen — In the matter of certain personal securities deposited with you as collateral to an agreement dated August 28, 1876, between W. W. Griffith and myself, I hereby request that if Mr. Griffith shall consent, you proceed immediately as trustees and agents for me, to sell and dispose of said securities at public sale, upon the notice specified in said contract, and apply the proceeds of such sale on my indebtedness to him, and I hereby consent that said Griffith, by himself or agent, may appear as a bidder at said sale.
    Yours very truly,
    T. P. Brown.
    Pursuant to a notice, given “ as specified in said contract,” Osborn & Swayne, on February 28, 1877, sold to Griffith the Holmes decree for $5,000; the bank judgment for $3,000 ; five mortgage notes made by one McCloud to Brown — aggregating $18,714.06, for $2,500; the $5,000 note and mortgage, made by Brown and wife to Irving, for $1,000; and three Toledo Carriage and Variety Company bonds of $500 each, for $300. They credited the total $11,800 on-Brown’s debt to Griffith. Afterwards the following paper was written on the back of the contract of August 28, 1876, and executed:
    “ The rights and liabilities of the parties under this contract, have this day been adjusted by the said Griffith returning to the said Brown, the Dorr Street Railroad stock and the Toledo Carriage and Variety bonds therein referred to, the said Brown surrendering to the said Griffith all right, title and interest whatever in the' remaining securities therein mentioned, and the said Griffith releasing said Brown from all further liability, by reason of said contract or any indebtedness thereunder arising.
    T. P. Brown.
    Toledo, O., Nov. 12, 1877. W. W. Griffith.”
    Griffith and one John Milburn had executed the following agreement:
    “ This agreement made at Toledo, Ohio, this 10th day of November, A. D. 1877, by and between Wilson W. Griffith, of the 'first part, and John Milburn, of the second part, witnesseth:
    Said Wilson W. Griffith, in consideration of the sale and transfer to him of certain shares of stock in the Milburn Wagon Company, representing thirty-two thousand five hundred dollars par value of said capital stock, has sold and transferred to said John Milburn, the following securities, to wit: Five notes of John L. McCloud^ secured by mortgage, and further described as follows:
    One promissory note of John L. McCloud to Theóphilus P. Brown, for thirty-seven hundred and twenty-eight dollars, dated at Toledo, Ohio, May 23d, 1876, and payable two years after date, with eight per cent, interest, payable annually. Said note is secured by mortgage, which mortgage is recorded in Vol. 66, page 178 and following, Lucas county Record of Mortgages.
    One promissory note of John L. McCloud to Theophilus P. Brown, for thirty-eight hundred and two and 56-100 dollars, dated at Toledo, Ohio, May 23d, 1876, and payable two years after date, with interest at eight per cent., payable annually. Said note is secured by mortgage, which mortgage is recorded in Vol. 66, page 175 and following, Lucas county Record of Mortgages.
    One promissory note of John L. McCloud to Theophilus P. Brown, for thirty-seven hundred and twenty-eight dollars, dated at Toledo, Ohio, May 23d, 1876, and payable three years after date, with interest at eight per cent., payable annually. Said note is secured by mortgage recorded in Vol. 66, page 176 and following, Lucas county Record of Mortgages.
    One promissory note of John L. McCloud to Theophilus P. Brown, for thirty-seven hundred and twenty-eight dollars, dated at Toledo, Ohio, May 23d, 1876, and payable four years after date, with interest at eight per cent, payable annually. Said note is secured by mortgage recorded in Vol. 65, page 135 and following, Lucas county Record of Mortgages.
    One promissory note of John L. McCloud to Theophilus P. Brown, for the sum of thirty-seven hundred and twenty-eight dollars, dated at Toledo, Ohio, May 23d, 1876, and payable five years after date, with interest at eight per cent., payable annually. Said note is secured by mortgage recorded in Vol. 65, page 133 and following, Lucas county Record of Mortgages.
    Also a certain judgment rendered on the 19th day of May, A. d. 1876, by the court of common pleas, Lucas county, Ohio, in Cause No. 14409, in favor of the Merchants National Bank of Toledo, and against Theophilus P. Brown.
    Also a certain judgment rendered on the 18th day of October, 1875, by the court of common pleas of Lucas county, Ohio, in favor of Harriet O. Holmes, and against Theophilus P. Brown, in Cause No. 12738.
    Also a certain deed of mortgage from Theophilus P. Brown to Harriet O. Hall, recorded June 12th, 1868, in Yol. 26 of Mortgages, pages 460 and 461, Lucas county Records of Mortgages, together with two promissory notes secured thereby, dated Toledo, Ohio, May 30th, 1868, each for the sum of six thousand six hundred and sixty-six and 67-100 dollars.
    The above notes and mortgages are the subject matter of the proceedings in which the decree last above mentioned was obtained; Said notes have, however, been transferred, and the mortgage assigned to said Griffith by Harriet O. Holmes (late Hall), and are now assigned by said Griffith to John Milburn.
    “ Also a certain note of Frances A. and Theophilus P. Brown, for five thousand dollars, to John D. Irving, dated Tpledo, Ohio, July 24th, 1876, and payable six months after date, to the order of John D. Irving; the said note being endorsed in blank, by John D. Irving, and further secured by a deed of mortgage from said Frances A. and Theophilus P. Brown to said John D. Irving, recorded September 11th, 1876, in vol. 65, page 585, of Lucas county Record of Mortgages.
    “ All of the above securities are transferred by the said Griffith to the said John Milburn, without recourse or other representation or warranty of title. Nevertheless, the said Griffith having purchased the securities above mentioned at public sale to satisfy an indebtedness of the said T. P. Brown to the said Griffith, the rights of said Griffith in regard to said indebtedness so far as the said securities were taken to satisfy the same, are hereby transferred to the said Milburn, should any contingency arise whereby the title to said securities should be possibly called in question.
    “ The judgment above mentioned in favor of the said Harriet 0. Holmes, against T. P. Brown, which now stands upon the records of Lucas county common pleas as having been assigned and transferred to Wilson W. Griffith, is to be assigned and transferred to Osborn & Swayne as trustees. The said Osborn & Swayne are to hold said judgment as trustees, first, to secure to the Merchants’ National Bank of Toledo, Ohio, the re-payment of a certain promissory note for the sum of six thousand dollars, made to the said bank by Henry J. Raffensperger and John Milburn, dated Toledo, Ohio, November 10th, 1877, and payable four months after date, to the said Merchants National Bank of Toledo, or order.
    “ After payment of said note, the said Osborn & Swayne shall transfer said judgment upon the records of said court to the said John Milburn, and in the event that said judgment is resorted to for the payment of said note, then the proceeds of said judgment, after the payment of said note and the proper charges, of said trustees for the collection thereof, are to be paid over to said John Milburn; the said John Milburn is, however, to be at liberty in the meantime to order execution upon said judgment, whenever he sees fit.
    John Milburn, 1 L „ W. W. Griffith. )
    Another mortgage creditor of Brown, to wit: The Toledo Savings Bank and Trust Company, sued in Lucas common pleas, making Brown and his wife, Milburn, Griffith, The Merchants National Bank of Toledo, and others, defendants. In this action, on January 3, 1878, Brown filed an answer and cross-petition against Milburn, Griffith, and The Merchants National Bank. He charged that the Holmes decree and the bank judgment were actually paid by him on August 28th, 1876, and that the subsequent transactions between himself and Griffith, and Griffith’s dealings with the collaterals placed in his hands, had fully paid his debt to Griffith; that said defendants were proceeding to collect said judgments without right, and he prayed an injunction against them. He also asked that the note and mortgage of himself and wife to John D. Irving, for $5,000, be ordered to be delivered up to him.
    Griffith and The Merchants National Bank filed an answer, reply and cross-petition, averring' that on the 26th day of August, A. D. 1876, Harriet 0. Holmes, with the consent and „ at the request of Brown for a valuable consideration, paid by Griffith, assigned and conveyed said judgment and her interest in said liens and property by virtue thereof, to said Wilson W. Griffith, to have and'to hold the same as security for the payment of certain indebtedness, due from said Brown to said Griffith, and for the return of certain stock of the Milburn Wagon Company, loaned by said Griffith to said Brown; and afterwards, on the 25th day of February, A. d. 1877, for a good and valuable consideration, and by the consent and at the request of said Brown, said judgment and interest were assigned’ and conveyed to said Griffith, to have and to hold the same for his own use and benefit; and he then became the absolute owner thereof, free from all trusts whatever; and after-wards, on the-day of November, 1877, for a good and valuable consideration, said Griffith assigned and conveyed said judgment and interest to John R. Osborn and Wager Swayne, to have and to hold the same in trust. First. To secure .the payment of $6,000 and interest thereon, from the 10th day of March, A. d. 1878, at eight per cent, per annum, which has since become, and now is due to said bank, upon a promissory note, a copy of which is hereto attached, executed by Henry J. Raffensperger and John Milburn, and no part of which has been paid. Second. To have and to hold said judgment and interest for the sole rise and benefit of said Milburn after the payment of said note — nothing has been paid upon said judgment, and there is due thereon, to the said Osborn & Swayne, as trustees, and said bank and Milburn, as cestui que trusts, as aforesaid, the sum of $13,722^5- and interest thereon, from the 15th day of October, 1875.
    They deny that said Brown ever - placed any property or money in the hands of said Osborn & Swayne for the payment of said judgment, and that he was ever entitled to have the same, or the mortgage upon which the same was founded, can'celled or discharged.

      They asked to be allowed to sell said lots and lands for the payment of said judgments.
    Brown’s reply stated:
    That the said promissory note referred to in said answer and cross-petition for $6,000, and of which a copy is alleged to be attached to said answer and cross-petition, and on which-it is therein alleged there is due to said Merchants National Bank, from said Henry J. Raffensperger and John Milburn, the said sum of $6,000, and interest thereon, at the rate of eight per cent, per annum, from the 15th day of March, A. d. 1878, was so executed and delivered by said makers thereof to said bank, wholly and solely for a loan or discount, on said 10th day of November, A. d. 1877, made to them by said bank.
    And that said alleged judgment and decree against this defendant so recovered by said Holmes, and alleged to have been transferred to said Griffith, together with the alleged lien of the same on the real estate in said answer and cross-petition set forth, were so transferred by said Griffith, at the instance of said Milburn, to said Osborn & Swayne, cotemporaneously with the making of said loan to and discount for said Raffensperger and Milburn, for the purpose of devoting and appropriating the real estate alleged to be embraced in and covered by said judgment, decree and mortgage, to the securing to said bank of said debt of $6,000, at the same time the same accrued to said bank; and said trustees and said bank have ever since been, and now are, claiming their lien on said real estate, to secure to said hank said debt of $6,000 and interest, as aforesaid, wholly under and by virtue of said alleged transfer on said 10th day of November, 1877.
    That said taking and holding, through said trustees by said bank of said judgment and decree, or mortgage, or the lien, the same as any of them might be upon said real estate, or any of it, was then, has ever since been, and now is, unlawful; and the said trustee and the said bank have no right, legal or equitable, to hold or enforce said judgment, decree or mortgage, against this defendant or said real estate.
    The common pleas dismissed Brown’s cross-petition. He appealed to the district court. That court found and decreed as follows:
    “ That ths said Brown has no equities as alleged in his said answer and cross-petition. That the answer and cross-petition of said Griffith and The Merchants’ National Bank, and the allegations therein contained, are true, and that the judgment in said pleadings mentioned in favor of said Holmes, formerly Hall, against the said Theophilus P. Brown is unpaid, and in full force and effect to and for the amount of $6,000, and interest thereon, from the 10th day of November, A. D. 1877, according to the terms thereof.
    “ It is therefore considered by the court that the injunction heretofore granted in this case be, and the same hereby is, vacated and dissolved, and that the said Griffith and said Merchants National Bank go hence without day and recover their costs in this case taxed at-, and execution issue therefor.”
    His motion for a new trial having been overruled, Brown took a bill of exceptions presenting all the evidence, and here asks a reversal of the action of the district court.

      John H. Doyle, for plaintiff in error.

      Dodge & Raymond, for defendant in error.
   Granger, C. J.

In so far as the finding of the trial court negatived Brown’s charges of fraud, deceit, or bad faith, it is supported by the evidence. But a serious question remains touching the nature and extent of Griffith’s interest in the Holmes decree, in the bank judgment, and in the Irving mortgage.

Prior to the payments made on August 28, 1876, by the hands of Osborn & Swayne, Brown sustained no relation to the Holmes decree, or to the judgment in favor of the bank, except that of the debtor whose property could be sold under them. Mrs. Holmes could sell her decree at her own pleasure; her vendee taking all of her rights therein. Griffith could have paid her off, and, taking her assignment, would thereby have become Brown’s judgment creditor. But the judgment would, in such case, be the debt itself, and not a collateral security. Griffith did not have the money to so buy. He loaned stock to Brown upon the latter’s promise to return it in sixty days, etc. For the time being the stock was Brown’s. He pledged it to secure his own note to the bank; but as part of the arrangement the bank was directed to place the proceeds of his notes in the hands of Osborn & Swayne to be paid to his judgment creditors, and he authorized these attorneys to accept a transfer of the decree to Griffith, and of the judgment to themselves as trustees, instead of receipts in full cancelling both. If Griffith had pledged his stock and raised the money on his own note, the sums paid upon the decree and the judgment would have been his money, and the transfer of the decree would have made him its absolute owner. The papers then executed by Brown and Griffith, taken literally, treat the money*as Brown’s, treat Brown as having, by the payment, become the owner of judgment and decree; and state that he had deposited with Osborn & Swayne, for Griffith, assignments of both as collateral security for the fulfilment of his contract with Griffith. If such were indeed the fact, what did Griffith take by such deposit ? A pledgor transfers to his pledgee the pledgor’s rights in the thing pledged as a security. The right of a judgment debtor (who has paid the judgment against himself in full) in the judgment so paid is simply a right to have it cancelled, or released, or entered satisfied. Such a right cannot be pledged. It is not a thing capable of transfer to another. Its purchaser cannot take anything. If an attempt be made to pledge it to a party having notice that it has been paid, and the pledgee, after default, puts the supposed pledge to sale, and by consent of the pledgor buys it in himself, what does he buy and hold? Simply the right of the pledgor in the pledge, released from the lien of the pledgee ; not a right to collect the judgment (for the judgment debtor — the pledgor — had no right to collect anything on the judgment), but only the right to treat it as a paid, judgment.

Hence, if the money that was paid to Mrs. Holmes was Brown’s money, the payment took all life and force from her decree; she had nothing that she could transfer to any one. Brown’s request that she assign it to Griffith, and her compliance, had precisely the same effect (no more) as Brown’s own assignment of the decree, made after the payment, would have had. Brown’s pledge of the decree to Griffith, who knew of the payment, was valueless, because it placed in Griffith’s attorney’s hands a thing that had no value. The fact that that thing was, with Brown’s consent, bid in by Griffith, and that Brown thereafter released to Griffith all Brown’s rights in it, could not give it any value. All contracts to pledge, sell, buy and release, rights in “nothing,” where both parties know the facts that make it “ nothing,” are powerless to create value in the “ nothing.”

So, if the trial court had held Griffith to the letter of the contract, Brown was entitled to an injunction forbidding the collection of any money on the decree. But Brown was asking equity to aid him, and therefore he must do equity.' Equity looks through form and deals with substance, whenever settled construction, or statutory enactment, has not made “ form ” matter of substance;

The transactions of August, 1876, were parcels of one whole. Brown could not obtain the money without Griffith’s help. The loan of the stock was made upon the condition that the money to be obtained from the bank should be placed in the hands of Griffith’s lawyers, and used by .them to get from Mrs. Holmes an assignment of the decree to Griffith. All parties intended that Griffith should have a valuable interest in a live decree; a decree capable of being enforced as such. Equitj', therefore, must and will give effect to that intent. This can only be done by treating the money paid' to Mrs. Plolmes as Griffith’s money, and treating Griffith as a purchaser of her rights in the decree. As Brown could not pledge Mrs. Holmes’ rights, the language of the paper of August 28th, 1876, cannot apply to this transfer from Mrs. Holmes, either as making it a pledge, or as affecting Griffith’s right to sell the decree. The trial court seems to have perceived this equity of Griffith; but it failed to see its effect upon the so called sale of the judgment as a pledge. It is true that a purchaser at such sale, without notice, would have taken Brown’s rights (which as we have seen were “ nothing ”) and also Griffith’s; he would have owned the decree as Mrs. Holmes owned it. But that would not result from Brown’s consent, however evidenced, but from Griffith’s actual ownership of the decree, and his consent to the sale, which would estop him from thereafter setting up any title to the decree.

As essential to such holding as to Griffith’s equity, it follows, that the account between him and Brown, at the close of the transaction of August 28, 1876, stood thus: Griffith had loaned to Brown $22,000 of stock; Brown had advanced to Griffith in money, $21,760.53. Of this $600 was paid to Griffith and his attorneys, and $25 to the lawyers of the bank. Waiving and not deciding the question of usury, Brown was, on the morning of August 29, 1876, indebted to Griffith as follows :

On the Holmes decree, $13,808.65

On the bank judgment, 7,233.33

For balance on said stock, 958.02

Total, $22,000.00

Brown had a right to pay both judgments and the balance of $958.02, by returning the stock within the time stated in their agreement. If he failed to do so he had agreed to pay Griffith interest on the whole debt at 8 per cent, and count the stock as worth 20 per cent, premium.

Another necessary result of the recognition of Griffith’s equity, was that he held the decree and judgment as owner; and not as collateral security. They werepareel of Brown’s debt to him, and not pledges securing that debt.

This follows inevitably the holding that the money paid to Mrs. Holmes and to the bank, was Griffith’s money, and not Brown’s.

The trial courts, in effect, found that, on August 29, 1876, Brown owed

To the bank on his notes, .... $22,225.00

To Griffith for the stock, .... 22,000.00

On the decree and judgment, . . . 21,041,98

Total, $65,266.98

Brown in fact then owed

To the bank on his notes, $22,225.00

To Griffith on decree and judgment, 21,041.98

To Griffith balance on stock, 958.02

Total, . . $44,225.00

As before stated this debt to Griffith could be paid in stock before default, and bore no interest until default.

Another necessary result of the recognition of Griffith’s equity, is that Brown is not entitled to credit for the $5,000 bid, on February 28,1877, by Griffith for the decree; nor for the $3,000 bid for the bank judgment. Under the holding as to his equity, Griffith owned both decree and judgment before, at the time of and after said so-called sale. The sale was a nullity so far as concerned the judgment and decree.

Brown’s release of all Ms rights in the judgment and decree made on November 12, 1877, as already stated, passed nothing: He had no rights as to decree and judgment except to pay the balances due upon them.

What effect had Griffith’s release (in the same paper) of Brown “ from all further liability by reason of said contract, or any indebtedness thereunder arising ? ”

This must be construed in the light of the facts and circumstances. These plainly show that the words “ all further liability” did not apply to either decree or judgment. The indebtedness referred to by said paper of November 12, 1877, is the indebtedness described in Griffith's letter of February 6, 1877. That letter, and Brown’s reply, show that both parties supposed that Brown then owed Griffith $27,177.25, besides owing the decree, the judgment, and the other collaterals. The credits reported to Brown, after the sale of February 28, 1877, were expressly stated to be credits on indebtedness other than the decree and judgment. And the “all further liability” released by the paper of November 12, 1877, was, (all of it,) other than the decree and judgment.

In short, the credit of the $8,000 was nothing but imaginary proceeds of the sale of two “ nothings; ” Griffith’s release of November 12, 1877, was the surrender of an imaginary “further liability;” and Brown’s surrender of his rights in the judgment and decree was a surrender of imaginary rights.

A recognition of Griffith’s equitable right to be treated as purchaser of the rights of Mrs. Holmes, and of the bank, necessarily involves a recognition of the imaginary value— the nothingness of all of said subsequent transactions touching the judgment and decree, as between Brown and Griffith. Thus the credits of $5,000 and $3,000 to Brown should be cancelled; Griffith’s rights in judgment and decree must remain unaffected by the sale of February 28, 1877, or by the release of November 12, 1877, and Brown’s surrender of his rights in judgment and decree should be treated as a transfer of nothing.

If good faith was observed, and the facts as to the. sale of February 28, 1877, Brown’s antecedent consent and subsequent ratification of that sale, -were as found by the trial courts, Brown is entitled to credit on his indebtedness to Griffith, as we have stated it, for the proceeds of sales made that day of all so-called collaterals, that were, in fact and law, the subject of pledge; — and Griffith, from and after such sale, was absolute owner of such collaterals. He is not bound to account to Brown for profits thereafter made by him out of such collaterals so bought by him ; nor for the proceeds of any sale of either judgment or decree. As soon as Griffith sold either of them to a third party Brown ceased to owe him a sum equal to the actual amoúnt then due upon the judgment or decree, so sold, and became indebted in that sum to the purchaser from Griffith. Brown is not entitled to any credit for any part of the consideration received by Griffith for his sale of the decree to Milburn. As owner of the decree Griffith could sell it at his own pleasure, and Brown has no right to inquire into that consideration.

The note and mortgage of Francis A. Brown and T. P. Brown to John D. Irving, for $5,000, bore date July 24, 1876. The note was payable six months after date to the order of Irving, and was indorsed in blank by him. Both were in possession of T. P. Brown on August 28, 1876, and were by him delivered to Griffith’s attorney as his pledge to secure his debt to Griffith.

Under these facts the law presumes that the signatures of Mrs. Brown and of Irving were for T. P. Brown’s accommodation. See Erwin v. Shaffer, 9 Ohio St., 48. Griffith was bound to take notice of this presumption. Unless the sale of February 1877 passed to the purchaser of this note and mortgage the indebtedness of Brown to Griffith secured by it, such purchaser took only Brown’s rights in the note and mortgage. But Brown could not call upon his accommodation co-maker, or indorser, to pay to him anything on the note or mortgage. The purchaser at the sale of February 1877, if he then bought only this note and mortgage, could not collect anything on them because Brown could not. Such a pledge must lose vitality or value, so soon as it becomes separated from the indebtedness it was pledged to secure. As it happened — Griffith, the nominal purchaser, owned that indebtedness, and when he assigned to Milburn he expressly assigned to him a share of that indebtedness. Thus, in fact, the pledge was not separated from the debt secured by it. Without repeating the reasoning touching the judgment, it is sufficient to here say that neither Mil-burn, nor Griffith, can treat this mortgage, or note, as an independent debt; it does not add a single cent to Brown’s liabilities. So soon as his indebtedness to Griffith shall have been paid Brown will be entitled to a surrender of the Irving mortgage and note. The credit of $1,00.0 proceeds of sale of this mortgage and note, as of February 28, 1877, should be cancelled for the reasons stated while treating of the $8,000 supposed proceeds of the sale of the decree and judgment.

Milburn stands in Griffith’s shoes. He can enforce collection on decree, or mortgage, or both of whatever balance is actually due from Brown upon it, under the views herein before stated. If that sum exceeds the amount of the interest of the bank in said judgment, the excess will belong to Milburn. An account should be taken to ascertain what sum, if any, is due and unpaid upon each of said judgments; whether there was anything due to Griffith from Brown besides said judgments; and a decree should be made securing to each party his rights upon the principles hereinbefore stated.

Judgment reversed.

Martin and Macaitley, JJ. dissent.


author: McCauley, J.

text:
    CIRCLEVILLE v. NEUDING.
    Where a city contracted for the construction of a cistern, eighteen feet wide and twenty feet deep, in a street, and before the cistern was completed a horse fell into it and was killed, for want of sufficient protection around and over the excavation, to guard animals in the proper use of the street from danger,

      Held: That the city was liable for the loss of the horse, although it did not reserve or exercise any control or direction over the manner of doing the work, except to see that it was done according to specifications which were a part of the contract.
    Error to the District Court of Pickaway County.

      The city of Circleville on the 20th day of December, 1881, made a contract with one Peter Barndt to construct a public cistern for the city in one of its streets, according to plans and specifications adopted by the city council. Barndt agreed to furnish all materials and do all the labor in the construction of the cistern for a given price agreed upon by him and the city council. The cistern was eighteen feet in diameter and twenty feet deep. After the excavation for the cistern had been made and the wall built up about ten feet, and while the work was temporarily suspended, a mare, the property of the defendant in error, who lived within a few rods of the cistern, being at large accidentally on the street, fell into the cistern and was so injured that she died soon afterwards. The cistern was left by the workmen without a fence around it, but it was covered partly with three inch plank and partly with one inch pine boards. The covering of the excavation was not much raised above the level of the street, and at the'time of the accident there was about eight inches of snow upon this covering. *A trial in the common pleas resulted in a verdict and judgment for the plaintiff. This judgment was affirmed in the district court, and the defendant below files his petition in error to reverse this judgment.

      Adolph Goldfredrick and I. N. Abernethy, for plaintiff in error.
    1. The city is not liable, 1st, because the construction of the cistern was let by an independent contract, in which the city retained no control over the mode and manner of its performance. City of Cincinnati v. Stone, 5 Ohio St., 38; Carman v. S. & I. R'y Co., 4 Id., 399, 414; Clark v. Fry, 8 Id., 358 ; Veigel v. Lukenheime, 10 C. L. Bull, 293 ; Dayton v. Pease, 4 Ohio St., 80 ; Samyn v. McClosky, 2 Id., 536 ; Hughes v. R'y. Co., 39 Id., 461.
    That this principle is supported by the decided preponderance of modern authorities elsewhere, we refer to the following cases : Painter v. Mayor of Pittsburgh, 46 Penn. St., 213; Barry v. St. Louis, 17 Mo., 121; Allen v. Wil

      lard, 57 Penn. St., 374, 382; James v. San Francisco, 6 Cal., 528 ; O'Hale v. Sacramento, 48 Id., 212 ; Scammon v. Chicago, 25 Ill., 424; Hale v. Johnson, 80 Id., 185 ; Ryan v. Curran, 64 Ind., 346 ; Erie v. Caulkins, 85 Penn. St., 247 ; McCafferty v. R. R. Co., 61 N. Y., 178; Blake v. Ferris, 1 Seld., 48; 5 N. Y.; Pack v. Mayor, etc., 4 Id., 222; Kelly v. Mayor, etc., 1 Kernan, 432; 11 N. Y.; Van Wert v. Brooklyn, 28 How. Pr., 451; Hilliard v. Richardson, 3 Gray, 349; Wray v. Evans, 5 Am. L. Rec., 319; Conners v. Hennesy, 112 Mass., 96 ; DeForest v. Wright, 2 Mich., 368; Westchester v. Apple, 11 Casey, 284.
    The principle we contend for is supported and sustained by all the principal text writers. Shearman & Redfield on Negligence, 91 and 92, and note on 92, also p. 171; Cooley on Torts, 548,549; Wood on Masters and Servants, 601, 603, 605; Addison on Torts, 197, 395 ; 2 Hilliard on Torts, 451, 460.
    2nd. The city was not guilty of negligence.
    The right of the city to temporarily or partially obstruct streets, in the construction of cisterns, sewers and other improvements, can not be questioned; and the use of the public highway is subject to such obstruction. Such temporary obstruction is not a nuisance. Clark v. Fry, 8 Ohio St., 358.
    A municipal corporation is not an insurer against accidents upon the streets. It is bound to keep its streets in a reasonably safe condition, but not absolutely so. 2 Dillon on Municipal Corporations, 1039; Rockford v. Hildebrant, 61 Ill., 155; Smith v. St. Joseph, 45 Mo., 449; Seward v. Milford, 21 Wis., 485; Williams v. Clinton, 28 Conn., 264.
    Nor is a municipal corporation bound to keep all of its streets in good repair under all circumstances, but only such streets and parts of streets as are necessary for the convenience of the travelling public. Craig v. Sedalia, 63 Mo., 417.
    The duty of the city is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution. Chicago v. McGiven, 78 Ill., 347.

      Wherever it is held that municipal corporations must keep streets in repair, such duty is modified to extend only to the roadway proper and not to the whole width as originally laid. out.
    The duty to keep in repair the streets of municipal corporations extends to the road actually used for travel, provided it was wide enough to be safe. 2 Dillon, 1024. Brown v. Glasgow, 57 Mo., 156; Titus v. Northbridge, 97 Mass., 258; Howard v. North Bridgewater, 16 Pick., 189 ; Moss v. Burlington, 15 N. W. Rep., 267; s. c. 46 Am. Rep., 82; 4 Allen, 557; 4 Gray, 395; 105 Mass., 344; 98 Mass., 578.
    • Samuel W. Oourtright and Festus Walters, for defendant i,n error.
    The obligation of a city to keep its streets in a safe condition for the passage of persons and property, is a primary one, and the city cannot divest itself of it. The improvement was in its nature dangerous, and the city was bound to protect the excavation. Mayor, etc. of Baltimore v. O'Donnell, 53 Md., 110; City of Logansport v. Dick, 70 Ind., 65; City of Chicago v. Robbins, 2 Black, 418; Robbins v. Chicago City, 4 Wallace, 657; City of Buffalo v. Holloway, 3 Selden, 497 ; Homan v. Stanley, 66 Pa. St., 464; Ironton v. Kelly, 38 Ohio St., 52; Tiffin v. McCormack, 34 Id., 643; Grant v. Brooklyn, 41 Barb., 381; Storrs v. Utica, 17 N. Y., 104; Prentiss v. Boston, 112 Mass., 43; Myers v. Springfield, Id., 489; Currier v. Lowell, 16 Pick., 170 ; Willard v. Newbury, 22 Vt., 458 ; Carman v. Ry. Co., 4 Ohio St., 399; Dillon on Mun. Corp., § 793; Nashville v. Brown, 9 Heisk, 1; s. c. 24 Am. Rep., 289; Wilson v. Wheeling, 19 W. Va., 323; s. c. 42 Am. Rep., 781; 74 Mo., 480; 73 Id., 71; 78 Ind., 308; 57 Id., 192; 45 Id., 429; 43 Vt., 45; 71 Mo., 52; 19 Fla., 106 ; 53 Md., 110; 49 Id., 257.
   McCauley, J.

It is contended- on behalf of the city that it is not liable for the loss of the horse-, because the cistern was in process of construction by an independent contractor when the injury occurred. The relation between the city and Barndt was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But this liability is limited to those injuries which are collateral to the work to be performed, and which arise from the negligence or wrongful act of the contractor or his agents or servants. Where, however, the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition the rule has no application. This distinction has been taken in this state in a number of eases. Carman v. Railroad Co., 4 Ohio St., 399; Tiffin v. McCormack, 34 Id., 638; Hughes v. Railway Co., 39 Id., 461, and elsewhere, in McCafferty v. Railroad Co., 61 N. Y., 178; Prentiss v. Boston, 112 Mass., 43; Baltimore v. O’Donnell, 53 Md., 110; Logansport v. Dick, 70 Ind., 65; Crawfordsville v. Smith, 79 Id., 308; Robbins v. Chicago, 4 Wall., 657.

In this case, the cistern contracted for, was to be built ih a street, and to be eighteen feet wide and twenty feet deep. Such an excavation in a street unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to keep its streets open, in repair, and free from nuisance, and it could not cast this duty upon a contractor, so as to relieve itself from liability to one who should receive an injury. It is primarily liable for an injury resulting from such dangerous place in a street. If it has required the contractor to assume the risk of such damage, it may have a remedy against him. But the public in the use of the streets may rely upon the legal obligation of the city to keep them free from dangerous places, or if such places become necessary to be made in the course of an improvement or work necessary or proper for the city to do, that it shall so guard them that no injury shall result in the ordinary use of the street.

Judgment affirmed.


author: Martin, J.

text:
    Crouse v. Wagner.
    ■Renick, tke principal maker of a promissory note, desiring to kave the same renewed, applied to the sureties thereon, who claimed to have a defense to the note, and who declined to renew, except as sureties for Crouse, if he would go on the paper. Afterwards Renick obtained the signature of Crouse, a new surety, on the representation upon which he relied that it was a renewal, and that the former sureties would sign as his co-sureties.
    Thereupon Renick handed the note to the former sureties who signed, ■ stipulating as sureties for Crouse without his knowledge, and without any inquiry or information as to the circumstances under which he .signed.

      Held, the stipulation is ineffective, and the sureties are co-sureties.
    Error to the District Court of Pickaway county.
    The original action was brought in the common pleas of Pickaway county by Wagner and Smith against one Olds, the judgment creditor, and Crouse to enjoin the collection óf a judgment taken in that court against Nancy M. Renick, D. J. Crouse, D. B. Wagner and P. C. Smith, on the ground that it had been paid by Crouse, and was rendered on a promissory note made by the judgment debtor on which AVagner and Smith were sureties for Crouse. In his answer Crouse admitted that he had paid the judgment on an execution which Wagner and Smith had induced the creditor to send to Ross county and levy on his property. He denied that they were his sureties on the note, and claimed that he and they were co-sureties for Renick, and that he having taken an assignment of the judgment, was entitled to enforce contribution from them. It was admitted that Renick had no property out of which the judgment could be satisfied.
    In the district court, on appeal, a trial resulted in judgment for Wagner and Smith, perpetually enjoining the collection of the judgment as against them.
    A motion for a new trial was overruled, and a bill of exceptions containing all the testimony was duly taken.

      The object of this proceeding in error is to reverse the judgment of the district court.
    The following is a copy of the note on which the judgment was rendered.
    $1,046.98.
    “One year after this first day of February, 1877, we jointly and severally promise to pay Eveline Evarts or order, One Thousand Forty-six and Dollars, with interest from maturity until paid at the rate of Eight (8) per cent, per annum. Yalue received.
    “Nancy M. Renick.
    D. J. Crouse.
    P. C. Smith, ) Security for D. J. Crouse.
    ’ D. B. Wagner, j do.
    “Circleville, O., Feb. 1st, 1877.”
    The only question in the case is, were Wagner and Smith sureties for Crouse on the above note? In other words, was their stipulation to that effect valid ? Smith, Wagner and Crouse were the principal witnesses at the trial. Mrs. Reniek was not called. The material facts disclosed in the testimony are these. Wagner and Smith were sureties for Mrs. Renick on a promissory note. Crouse’s name was not on the paper. He had no interest in or connection with it. After its maturity she applied to the sureties to renew it. They declined, and claimed that there had been an extension of time that discharged them. She told them that Crouse was indebted to her, and he would go security on the note. They each then told her they would go security for Crouse. Subsequently she handed Crouse a note filled up and signed by her alone, and requested him to sign as surety, telling him that it was a renewal of a note on which Wagner and Smith were her sureties, and they would go on as sureties if he would. He replied that he would go on if they would. She said nothing about their offer to go on as his sureties. Thereupon Crouse signed and handed her the note. There had been no conversation between him and Wagner and Smith on the subject. Afterwards she took the note to Smith, who signed his name, adding the words, “ Security for D. J. Crouse.” The testimony does not show that anything was said by either of the parties on this occasion. She then took the note to Wagner, who likewise, subscribed his name, adding the same words, “ Security for D. J. Crouse.” At this time nothing appears from the testimony to have been said by either party. She then delivered the note to the creditor. It was simply a renewal, and was received in payment of the former note. The testimony shows that Mrs. Renick’s statement to Wagner and Smith that Crouse was indebted to her was not correct.
    Crouse knew nothing of the alleged stipulation by Wagner and Smith until after' the note was put in suit, when he saw the note for the first time’after he signed it.

      Page, Abernethy f Folsom, attorneys for plaintiff in error.

      Smith & Morris, attorneys for defendants in error.
   Martin, J.

Crouse’s claim to contribution from the other sureties rests on the assumption that they were co-sureties with him. The right 'to contribution as between co-sureties is well established. It is founded, not on contract duty, but on the equitable principle that the discharge of the obligation by which they were equally bound, being for their equal benefit, should be obtained at their equal expense. Craythorne v. Swinburne, 14 Ves., 160.

In the case under consideration Crouse, Wagner and Smith were each and all sureties for Renick on the same note. Crouse having paid the obligation is entitled, prima facie, to contribution to the extent that the burden may be equalized. But this prima facie case may be overcome. Sureties for the same person and the same engagement are not always co-sureties. It is claimed that Wagner and Smith were not his co-sureties, because they stipulated to the contrary at the time they signed the note. It is admitted that they then stipulated by adding to their respective names the words, “ Security for D. J. Crouse.”

The question as to the validity of this stipulation depends on the circumstances under which it was made. It is well settled that where a surety signs a note and delivers it to his principal without any limit on his authority to use it for the purpose intended, a subsequent surety signing the same may stipulate with his principal as surety for the prior surety. Oldham v. Brown, 28 Ohio St., 41.

Such a stipulation does not enlarge or qualify the liability of the prior surety. He remains bound precisely as he agreed to be in the first instance. And no legal or equitable considerations intervene to affect the validity of the stipulation. The second surety, as well as the first, is a mere accommodation maker, and having no pecuniary interest to be subserved by the undertaking, he may well fix for himself, with the assent of the principal, the relation he assumes to his co-makers. Both are directly bound to the creditor, and as between themselves the fact as to whether they are co-sureties or not may be shown by parol. Such testimony affects only the relation between themselves, and does not contradict or impair the obligation to the creditor.

It is true the stipulation was in writing, but that was a matter of convenience only. A verbal stipulation would have been equally effective. It is not a contract between the creditor and the party, nor between the sureties, but it is an arrangement between the stipulating surety and the principal in the nature of a condition. And if it interfere with no right or equity of the prior surety it is valid. But it would be anomalous to hold that a prior surety is concluded by a stipulation simply because it is in the form of a subscript. That would be to hold him bound to terms to which he may never have assented even by implication.

The fact that the note was a renewal of one upon which Wagner and Smith alone were sureties is a circumstance of great weight. True, the sureties disputed their liability. And they were told by Mrs. Reniek that Crouse was largely indebted to her, and would sign as surety. And it is also true that they declined to renew except as sureties for Crouse. These circumstances fully vindicate their good faith in making the stipulation, and relieve them from any suspicion of endeavoring by indirection to cast their burden on a stranger. But the record does not show the existence of any defense to the note; and the testimony is undisputed that Crouse was not indebted to Renick, and that his relation to the renewal was that of a mere surety. We must assume, therefore, that Wagner and Smith were liable on the original note, and that Crouse signed the renewal, as such, on the assurance then given him by Renick that it was a renewal, and that the former sureties would unite with him as his co-sureties. At that time the first note was past due and Renick was unable to pay it, and the sureties were concerned on account of their liability. Then the subject of Crouse’s becoming surety on a renewal became a topic of conversation between them and Mrs. Renick. They expressed their willingness to renew, but sent him no word or request. Renick, probably through a misapprehension of their language, failed to tell Crouse of their proposed stipulation. He signed under the representation that they would also sign as his co-sureties. He thus voluntarily assumed, or offered to assume, with them the burden that was previously theirs exclusively. In doing so he virtually limited the authority of Renick in the use to be made of his name, and required that she should obtain the names of the former sureties as co-sureties with him. By delivering the paper he reposed a confidence which could have been betrayed. She could have negotiated it without- the additional names. The former sureties could have obtained immunity by withdrawing their offer or entering into a collateral engagement with the creditor. But they signed as co-makers with a stipulation which is open to explanation.

Crouse’s limitation conflicts with their stipulation in consequence of Mrs. Renick’s blunder or fault in procuring his signature. In that particular she was acting as the agent of neither party, and neither is responsible for her misrepresentation. Hence the parties were equally in error. But were they equally innocent? Crouse, knowing that the renewal would lighten their burden, could have no reasonable suspicion of the representations made by Mrs. Renick; and in relying on them he was not at all negligent.

There was nothing to interfere with his right to limit her authority over his name, and nothing to suggest the slightest impropriety in his so doing. "Wagner and Smith indicated to Mrs. Renick their willingness to have Crouse substituted in their place. He was solvent. Their proposed suretyship for him was nominal. So far as the record informs us their proposal consisted solely in the curt phrase, “I will go security for D. J. Crouse.” Would it be surprising if an unskilled woman failed to appreciate the full significance of this offer ? On her return with Crouse’s name they added theirs with the subscript without inquiry, and without information as to the circumstances of his signing. Considering the personal benefit they had in view, we think there was some slight negligence, enough if need be to turn the scale, in the attempt made to stipulate without inquiry.

It remains to add that the issue between these parties involves their relation to each other at the time the note was delivered to the creditor. In determining this issue in favor of Crouse, who seeks contribution and is the real plaintiff in this controversy, we have not taken into account the preference sometimes accorded to the position of defendant in cases of equal right. The judgment was taken in Pickaway county, and an execution to the sheriff of that county would have been satisfied by Wagner and Smith. The record shows that they induced the creditor to depart from the common course, and through an execution to Ross county to coerce full payment from Crouse. Their equitable right to do so rested on the assumption that they were his sureties. We are not disposed in this contest between sureties to hold that a position thus secured, though with honest intent, draws to it an exceptional preference.

In short, we find that Wagner and Smith have failed to maintain their stipulation ; and further, conceding the onus to be on Crouse, we find a superior equity in his favor.

Judgment reversed.


author: Nash, J.

text:
    Bronson v. Oberlin.
    1. The act of March 29, 1882 (79 Ohio Laws, 59), authorizing incorporated villages having within their limits a college or university, to provide against the evils resulting from the sale of intoxicating liquors therein, is not repugnant to the provisions of the constitution.
    2. A village council acting under the authority conferred by this law, exceeds its power when it makes an ordinance which prohibits the sale of intoxicating liquors to all persons and for all purposes except mechanical and medicinal, and the sections of the ordinance so providing are void.
    Error. Reserved in the District Court of Lorain county.
    On the 29th of March, 1882, the General Assembly passed the following act (79 Ohio Laws, 59) :
    “AN ACT
    “ Authorizing Certain Incorporated Villages to Regulate the Sale of Intoxicating Liquors Therein.

    “ Section 1. Be it Unacted hy the Greneral Assembly of the State of Ohio. That the following section be enacted as supplementary to chapter 3, division 3, title 12, sec. 1692 of the Revised Statutes of Ohio, with sectional numbering as follows:
    “ Sec. 1692 b. That all incorporated villages within this State, having within their limits a college or university, shall have the power to provide by ordinance against the evils resulting from the sale of intoxicating liquors within the limits of the corporation.
    “ Sec. 2. This act shall take effect and be in force from and after its passage.”
    Attempting to act under the authority conferred by this statute, the council of the village of Oberlin, a village in which a college has been located for many years, on the 6th of September, 1882, passed the ordinance which follows:

      “ AN ORDINANCE.
    “ To Provide Against the Evils Resulting from the Sale of Intoxicating Liquors.

    “Be it ordained by the incorporated village of Oberlin—
    “Section 1. It shall be unlawful for any person, by himself or agent, to sell or furnish within the limits of said village any intoxicating liquors whatever, to or for any student or students in any of the departments of Oberlin College or of the Telegraph School or of the Business and Writing Schools, located in said village, except on the written order of the President or one of the Professors of said Oberlin College, presented by or in behalf of any student of said Oberlin College, or except upon the written order of the principal Manager of said Telegraph School, or the principal Manager of said Business and Writing School presented by or in behalf of any student of their respective schools, or except on the written order of the parent or parents of any such students.
    “ Sec. 2. It shall be unlawful for any person by himself or agent to sell or furnish, or keep for sale or furnishing to any person or persons who are not students in the College, or the Schools named in Section One of this Ordinance, within the corporate limits of said village, any intoxicating liquors whatever, except for medicinal or mechanical purposes under the conditions hereinafter provided.
    “ Sec. 8. It shall be, and is hereby made the duty of every person selling or furnishing intoxicating liquors within said village, to keep and preserve a record of every sale or furnishing in a book kept for that purpose, wherein he shall enter at the time said liquor is sold or furnished, the amount and kind of liquor sold or furnished, and to whom sold or furnished, and said record shall be subject at all times to the inspection of such person as the mayor, with the approval of the council, may appoint.
    “ Sec. 4. It shall be unlawful for any person to sell or furnish to any other person or persons within said village any intoxicating liquors whatever, except upon reasonable and satisfactory evidence that such liquors are needed and will be used for medicinal or mechanical purposes aforesaid.
    “ Sec. 5. It shall be unlawful for any person to buy or receive from any other person or persons within said village any intoxicating liquors to be used for other than medicinal or mechanical purposes.
    “ Sec. 6. Any person who shall violate any of the provisions of this ordinance, shall upon conviction thereof, be fined in any sum not exceeding fifty dollars, or be imprisoned for a period not exceeding thirty days, or both, at the discretion of the mayor.
    “ Sec. 7. If any person called to testify on behalf of the prosecution before the mayor of said corporation upon any complaint or information for any offense defined in sections one to five inclusive of this ordinance, disclose any fact tending to criminate himself in any matter made punishable by said sections, he shall thereafter, and by reason thereof, be discharged from all liability to prosecution or punishment for such matter of offense.
    “ Sec. 8. The ordinance entitled ‘ An ordinance to provide against the evils resulting from' the sale of intoxicating liquors,’ passed April 17th, 1882, and all ordinances amendatory thereof, and July 5th, 1882, are hereby repealed.
    “Sec. 9. This ordinance shall take effect upon its passage and legal publication.”
    On the 25th day of September, 1882, a complaint was filed with the mayor of Oberlin charging that the plaintiff in error, Frank E. Bronson, on or about the 22d day of September, A. D., 1882, at the village of Oberlin, did unlawfully sell intoxicating liquors to one Nathan B. Doane, he not being a student in any of the departments of Oberlin College, or of the Telegraph School located in the village, or of any Business or Writing School located in the village, and the intoxicating liquors were not sold by Bronson to Doane for either medicinal or mechanical purposes. Bronson knew that the intoxicating liquors so sold by him were not intended by Doane to be used for either medicinal or mechanical purposes.
    On this complaint Bronson was convicted. The court of common pleas affirmed the judgment of the mayor’s court. A petition in error was then filed in the district court of Lorain county, and that court, upon motion of the village of Oberlin, reserved the case for the decision of the supreme court. It was partially presented to this court by oral argument on the 31st day of October, 1884; but the last printed brief of counsel for the village was filed November 29th, and the reply of opposing counsel upon the 29th day of December.

      E. G. Johnson and S. M. Eddy, for plaintiff.
    Sections 2 and 4 of the ordinance are invalid for the inequality of the privileges conferred and burdens imposed. McGill v. State, 34 Ohio St., 247.
    The ordinance is in conflict with the settled policy of the State, and sect. 1, art. 13 of the constitution and hence void. City of Canton v. Nist, 9 Ohio St., 439; Thompson v. Mt. Vernon, 11 Ohio St., 688; State v. Sinks, 42 Ohio St., 345.

      W. W. Boynton, I. A. Webster and C. A. Metcalf, for defendant in error.
    1. The presumption is in favor of the constitutionality. Lehman v. McBride, 15 Ohio St., 591; McGill v. State, 34 Ohio St., 245; Ogden v. Saunders, 12 Wheat., 270. The act is within the meaning of the constitution, State v. Brewster, 39 Ohio St., 653; State v. Powers, 38 Ohio St., 63; State v. Parsons, 40 N. J. L., 123; 77 Pa. St., 338; 70 Ill., 388; 31 Ohio St., 592; State ex rel. v. Hammer, 42 N. J. L. 439; 39 Iowa, 112; 94 U. S., 155; 70 N. Y., 350; 92 Id, 4; 85 Pa. St., 401; 20 Kansas, 619.
    2. Whether the legislature can itself, or by delegated power authorize a municipal corporation, to prohibit the sale of intoxicating liquors as a beverage, see Bliss v. Kraus, 16 Ohio St., 54; 1 Dillon Mun. Corp ch. 12; 70 Ill., 191; 97 U. S., 25-33; 18 Wall, 129; 13 N. Y., 378; 32 Ohio St., 158; Cooley Const. Lim., 581; 12 Cush., 414; 5 Gray, 97; 25 Conn., 290; 8 Iowa, 396; 4 Rich., 244; 26 Conn., 179; 59 Wis., 591; 92 Ill., 559; 58 Iowa, 496; 18 Ga. 586; 36 N. J. L., 72; 44 Id., 605; 36 Conn., 215; 38 N. H., 426; 43 Wis., 488; 4 Denio, 345; 34 N. Y. 666; 74 Id., 520 ; 86 Ill., 33; 11 Ohio St., 542; 15 Id., 591; 21 Id., 207; 39 Id., 410; 14 Id., 590; 16 Id., 54; 20 Id., 308; 39 Id., 651.
   Nash, J.

1. Does the act of March 29, 1882 (79 Ohio Laws, 59), authorizing incorporated villages having within their limits 'a college or university to provide against the evils resulting from the sale of intoxicating liquors therein, contravene the limitations imposed by the constitution upon legislative power?

In considering this question it must be borne in mind that it is well settled that the presumption is always in favor of the validity of the law; and it is only when manifest assumption of authority, and a clear incompatibility between the constitution and the law appear that the courts will refuse to execute it. Railroad Co. v. Commissioners, 1 Ohio St., 77; Goshorn v. Purcell, 11 Id., 641; Lehman v. McBride, 15 Id., 573.

It is contended that a classification of incorporated villages such as is sought to be made in this act, and the clothing of the councils of such villages with powers not possessed by the councils of other villages, are prohibited by the constitution.

The Revised Statutes divide cities into grades and make provisions for each grade so established. Municipal corporations are divided into three classes — cities, villages and hamlets. Cities are divided into two classes — first and second. Cities of the first class are divided into three grades — first, second and third. Cities of the second class are divided into four grades — first, second, third and fourth. This classification depends upon the number of inhabitants within a city. In The State v. Brewster, 39 Ohio St., 653, it was held that sections 1546-1550, of the Revised Statutes, which make the classification referred to are authorized by the constitution. Judge Okey, in the opinion of the court, says: “ The validity of that classification has been repeatedly recognized in this court and the reasons for adhering to that construction of the constitution are cogent and satisfactory.”

The principle seems to be that a law which relates to certain municipal corporations as a class, and having a like effect upon all within the class is general, but one' that relates to a particular municipality of a class is special. Judge Okey, in the case of McGill v. The State, 34 Ohio St., 228, said: “Under the power to organize cities and villages (Const, article 13, section 6), the general assembly is authorized to classify municipal corporations, and an act relating to any such class may be one of a general nature.” Judge Mcllvaine, in the ease of The State v. Powers, 38 Ohio St., 54, said that “judicious classification and discrimination between classes will not destroy the uniformity required by the constitution.” In the case of The State v. Parsons et al., 40 N. J. Law, 123, the principle is well stated as follows:

“ A law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects, which, having regard to the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, is not a special or local law, but a general law.”

The classification must be just and reasonable, and not arbitrary. In the act under consideration the classification is just and reasonable. It groups in a class all incorporated villages in the state having within them a college or university. There are many of these, and they are located in all sections. Large numbers of boys and young men are congregated in them for the purpose of acquiring an education. Many of them are away from home and parental restraints, and at a time when they are acquiring habits which will make them useful men, or will destroy all hopeful prospects for the future. Such villages are small, and do not have the police restraints of the larger cities. They require regulations which are unnecessary in other villages and in larger cities. The value of their property, and their greater value as suitable resorts for the education of youth, depend upon such villages being kept free from the unrestrained traffic in intoxicating liquors. These considerations and many others which could be enumerated, show the just and substantial character of the classification made in this law, and the wisdom of the general assembly in making it.

It is also claimed that the legislature cannot delegate the power to regulate the sale of intoxicating liquors to the councils of incorporated villages. This is a settled question in Ohio-. Several years ago the council of the village of McConnellsville provided by ordinance that it should be unlawful for any person to keep in its midst a house, shop, room, booth, arbor or place where ale, porter or beer is habitually sold, or furnished, to be drank in, upon, or about the house,' shop, room, booth, arbor, cellar or place where so sold or furnished. This it did under an authority conferred upon municipalities by statute “to regulate, restrain and prohibit ale, beer and porter-houses or shops, and houses and places of notorious or habitual resort for tippling and intemperance.” This act was a delegation of power by the general assembly. In Burckholter v. McConnellsville, 20 Ohio St., 309, the supreme court held the ordinance to be valid, and in so doing of necessity concluded that the legislature could confer a power possessed by itself upon municipal corporations.

2. The plaintiff in error was found guilty of violation of the second and fourth sections of the Oberlin ordinance. These sections prohibited the sale or furnishing of any intoxicating liquors whatever, or in any quanta, to any person, except for two purposes — mechanical and medicinal. In making these sections did the council exceed the power-conferred by the act of March 29, 1882 ? Whether the legislature. could confer the power to prohibit the sale of intoxicating liquors, or whether the council by ordinance could prohibit with this power conferred, are questions not involved in this case. The question simply is, “What power did this act confer? ” We are of the opinion that it did not give authority to prohibit. As expressed in the body of the law it was a power to provide against the evils resulting from the sale of intoxicating liquors. Section 16, article 2 of the constitution, provides that the subject of a bill pending before the general assembly shall be clearly expressed in its title. In trying to determine what the object of the words of a statute are, we are authorized to loot at its title. The title of the law under consideration is “An act authorizing certain incorporated villages to regulate the sale of intoxicating liquors therein.” Considering the words of this act, together with its title, we conclude thatthe power conferred was to regulate the sale of intoxicating liquors, and to provide against evils resulting therefrom, but not to prohibit. We are confirmed in this conclusion from the fact that in previous legislation the word “prohibit” has been used when that was the object sought, and not alone the words “to regulate” and “to provide against evils.” It follows that sections 2 and 4 of this ordinance are void.

A part of an ordinance may be void and the remainder valid, but the other sections of this ordinance are not involved in this case, and therefore we express no opinion in regard to them.

Judgment reversed.