author: McIlyaine, J. Okey, J.

text:
    Edwards v. McClurg.
    1. A deed containing apt words to convey an estate in fee, must be held to have that effect, in the absence of other words showing clearly and unequivocally a different intention.
    2. The granting clause in a deed was as follows: “The first party has agreed to sell and does hereby give, grant, bargain, sell and convey ” unto the second party, their heirs and assigns, “all the stone coal lying and being in, under and upon certain premises,” in consideration of thirty cents per ton on all coal when mined, and the second parly bound themselves to mine at least 3,000 tons annually. It was also stipulated that the second party “ shall have the right to abandon the contract at any time when they shall determine, in their judgment, that said coal, in quantity, quality and condition, is no longer minable with economy and profit.” Held: 1. All minable coal in place passed absolutely to the grantees. 2. After such conveyance no interest in the minable coal remained in the grantor subject to be mortgaged as land. 3. A mortgage upon the remaining interest of the grantor in the land, did not cover the purchase money due or to become due from the purchasers of the coal.
    Error to the District Court of Trumbull county.
    Ou September 28, 1867, one Adam McClurg, being then the owner in fee simple of the lands hereinafter described, entered into a written contract with Jacob Stambaugh and associates, as follows:
    “ This agreement made and concluded this 28th day of September, a. d. 1867, by and between A. McClurg, of Yienna township, Trumbull county, State of Ohio, the party of the first part, and Jacob Stambaugh and Evan Morris, of Liberty, J. II. Hnmason and Homy Eowler, of Yienna township, Trumbull county, state of Ohio, and John Tod, of Cleveland, and John Stambaugh, of Youngstown township, Mahoning county, State of Ohio, the second party.
    “ Witnesscth. That in consideration of one dollar paid by said second to said first party, and also of the covenants and agreements of'the second party, to he performed as hereinafter stipulated, the said first party has agreed to sell, and does hereby give, grant, bargain, sell and convey unto the said second party their heirs and assigns the following described stone coal, mining rights and privileges, to wit: All the stone coal lying and being in, under and upon the following lands, to wit: situate in the township of Yienna, comity of Trumbull, and state of Ohio, hounded and described as follows: on the north by land of William Squire ; on the east by land of Daniel Reeser; on the south by lands of R. L. Doming and Amos Woodford’s heirs ; on the west by lands of Lewis and Lucretia Clark; containing in the whole one hundred and four acres, more or less, together with the right and privilege to said ■ second party, their heirs and assigns freely to enter upon said lands, to search for said stone coal, and when found to mine and remove the same, and dispose thereof for their own use and benefit, and for this purpose the right to drill on said land at all suitable points in the judgment of said party of the second part, their heirs and assigns, to ascertain the location, quantity, thickness and inclination or dip of said coal, and the right to make all such shafts, slopes or entries, air holes, ditches, roads and roadways, and erect such machinery, shops, houses and structures, and use all such appliances and means as may be necessary and convenient in the judgment of said second party, their heirs and assigns, for the most economical and profitable mining, removing and marketing said coal, and also’ the right to use on or about the mouth of entries or mines for all said purposes so much of the surface of said land as may be necessary or convenient, in the judgment of said second party, to be selected by them from time to time as needed, but not to exceed in all two acres; and when selected and entered upon for use, said second party, their heirs or assigns shall so enclose the same or otherwise provide as that trespassing animals therefrom shall not damage the residue of said lands for farming purposes, and the first party also grants and conveys to the said second party, their heirs and assigns the right of way through, over or under said lands to transport coal from adjacent lands.
    “ It is mutually understood and agreed that all said rights, privileges and facilities hereby granted are to be used and con ducted in a good, careful, workmanlike manner, and so as to do no unnecessary damage or injury to said coal mine, and to said land and the surface farming privileges thereof. Audit is also understood and agreed that no mining shall be done under the substantial buildings of said first party norv on said land, nor so near thereto as to undermine or endanger the same.
    “ The said second party, in consideration of the premises, for themselves, tlieir heirs and assigns, covenants and. agrees to make reasonable search, within one year from this date, for said stone coal, and if found in location, quality, quantity and thickness sufficient to warrant economical and profitable mining and marketing thereof, then to open said mine of coal, and make full preparations for mining and removing the same within two years from this date, and thereafter to mine and remove from said land yearly, while said coal shall continue profitably min-able, not less than 3,000 tons, of (2,240) two thousand two hundred and forty pounds to the ton as mined, or pay for that quantity as though mined ; but payments made in any year in excess of coal actually mined in such year shall be applied on the excess of coal mined in after years over said stipulated quantity.

      “ Said second party, for themselves, their executors, administrators, heirs and assigns, further covenants and agrees to pay to the said first party, his executors, administrators, heirs or assigns, for all coal mined and removed from said land at the rate of (30) thirty cents per ton, of said 2,240 pounds.
    “ Settlements and payments for coal to be made yearly, on the first day of October, and in each year during the continuance of this agreement.
    “ Said second party, their heirs or assigns agree to keep accurate scales for weighing, and accurate weights and accounts of coal mined, and at all reasonable hours have the same, and said mine and works open to the free and full inspection of said first party, Iris heirs and assigns, and also to pay all taxes or public charges of every kind, national, state or municipal, that may be assessed upon said coal, or upon any of the machinery or structure of said second party.
    “It is mutually understood and agreed that said second party, their heirs and assigns, shall have the right to abandon this contract and yield up said coal mine and privileges at any time they shall determine, in their judgment, that said coal is in quantity, quality or condition no longer minable with economy and profit, and when this contract shall be ended, for any reason, said second party, their heirs or assigns, shall have the right to remove their machinery and other structures and property from said land.”
    This instrument was signed and sealed by the parties, attested, acknowledged and recorded in conformity with the statute in relation to deeds and other instruments for the conveyance of land.
    Stambaugh and associates afterwards transferred all their rights and interests under the contract to the Yienna Coal and Iron Company, a corporation, which was in possession, operating the mine, at the commencement of this suit.
    Subsequently, Adam McClurg died testate, having by his will given to his son, James L. McClurg, two undivided ninth parts of said land, and also two ninth parts of the interest of the testator under said contract of September 28, 1867.
    Afterwards, but prior to August 30, 1876, James L. McClurg parted with his interest in said land, by deed duly executed, reserving, however, his interest in the coal and his interest in the contract of September 28, 1867.
    On August 30, 1876, James L. McClurg executed two mortgage deeds, one to Darius M. McClurg, and the other to John McClurg, to secure the payment of certain notes, on his interest in said land, stating his interest to be two ninth parts, and covenanted that “ until the ensealing of these presents, I am well seized of the above-described premises as a good and indefeasible estate in fee simple and have good right to bargain and sell the same.” These mortgages were duly recorded as real estate mortgages, first the mortgage of Darius M. and subsequently that of John McClurg.
    Afterwards, on the 6th of December, 1876, James L. McClurg and his wife executed a mortgage deed to William J. Edwards and others, trustees of the Rayen school, plaintiff in error, upon two undivided ninth parts of the stone coal underlying said land in which it was stipulated as follows:

      “ Said coal is, however, conveyed subject to a certain lease made by A. McClurg to J. H. Iiumason and others (to wit, Jacob Stambaugli and associates), on the 28th day of September, 1867, which lease is now held and owned by the Yienna Coal and Iron Company, as assignee of said Iiumason and others. And the said A. McClurg’s interest in said lease to the extent of an undivided two-ninths part therein, is now owned by the grantors, and the said grantors assign to the grantees hereunder, said two-ninths part of said lease and of the right to collect and enjoy rents thereunder for the purpose of securing the payment of the promissory note hereinafter described, be the same more or less.
    Upon this state of facts, a controversy arose between Darius M. McClurg and the trustees of Rayen school as to their respective rights to receive from the Yienna Coal and Iron Company the two ninths of the money in its hands payable to James L. McClurg or his assignee. To settle this controversy the original action was brought by Darius M. McClurg. In the court of common pleas a decree was rendered for plaintiff. This decree was affirmed by the district court. This proceeding is prosecuted by the trustees of Rayen school, to reverse the judgments below.

      Sidney Strong, for plaintiffs in error:
    Coal in the land may be granted to and owned by one person, while the soil overlying it belongs to another, the ownership of each being as distinct and exclusive as if the property owned were separated by vertical planes. Bainbridge on Mines, 7, top paging; Cáldwell v. Fulton, 31 Pa. St. 475;
      Cincinnati College v. Yeatman, 30 Ohio St. 276. The instrument in question conveyed all the minable coal in place to the grantees and thereafter neither such coal nor the money to be paid for it, was subject to be mortgaged by the grantor. Manning v. Frazier, 96 Ill. 279 ; Caldwell v. Fulton, 31 Pa. St. 475; Johnstown Iron Co. v. Cambria Iron Co., 32 Pa. St. 241; Funk v. Haldeman, 53 Pa. St. 229; Grove v. Hodges, 55 Pa. St. 504; Massot v. Moses, 3 S. C. 168; Cady v. Sanford, 53 Vt. 633.

      F. F. Hutchins, also for plaintiff in error.

      C. A. Harrington and Hutchins & Campbell, for defendant in error,
    claimed that in legal effect, the instrument of September 28, 18G7, is like the instrument in Funk v. Haldeman, 53 Pa. St. 229 ; or it may be like that in Knight v. Indiana Coal Co., 47 Ind. 105. If held to be a lease, still the reversion was in J. L. McClurg when he made his mortgages, and that reversion passed by them to his brothers, and with the reversion passed the rents as incident to it. 1 Hill on Mortgages, 209, and cases cited. And in Ohio, after condition broken, the mortgagee has the legal title upon which he may recover possession and hold the land subject only to the equity of the mortgagor to redeem, the legal estate being absolute in the mortgagee. Childs v. Childs, 10 Ohio St. 344. For other cases bearing on this question, see Glonninger v. Franklin Coal Co., 55 Pa. 7; Dark v. Johnston, 55 Pa. 164; Doe v. Wood, 2 Barn. & Ald. 724; Chetham v. Williamson, 4 East, 469; Neel v. Neel, 19 Pa. St. 323 ; Mountjoy,s case; Massot v. Moses, 16 Am. Rep. 697; Grubb v. Bayard, 2 Wallace Jr. 81.
   McIlyaine, J.

That the stipulations contained in the mortgage of December 6, 1876, executed by James L. McClurg to the trustees of Rayen school were sufficient to transfer the interest now in controversy, is not disputed. The sole contention between the parties is as to the sufficiency of the mortgage executed by James L. McClurg to Darius M. McClurg on the 30th of August, 1876, to transfer such interest to the mortgagee. This mortgage, in form and by its terms was a real estate mortgage — nothing more.

The principal question involved in this contention is, whether or not James L. McClurg, at the date of this mortgage, was seized of an estate or interest in the land therein described. The solution of this question depends on the proper construction of the instrument of September 28,1867, between Adam McClurg and Jacob Stambaugh and his associates.

Confessedly, James L. McClurg, at the date of the mortgage to Darius, had no interest in the land therein described, unless it was an interest in the coal in place. If he had such interest, it was under the will of his father, Adam McClurg; and whether his father had any interest in -the coal as land, which could pass to his devisee, depends upon the legal effect to be given to the instrument of September 28, 1867.

That coal in place may be granted and conveyed as land, separate and apart from that which overlies or underlies it, is not disputed. This brings us to the exact question in the case — what was the intention of the parties as gathered from the whole instrument of September 28, 1867 ?

The granting clause is as follows : “That in consideration of one dollar paid by said second to said first party, and also of the covenants and agreements of the second party, to be performed as hereinafter stipulated, the said first party has agreed to sell, and does hereby give, grant, bargain, sell and convey unto the said second party their heirs and assigns the following described stone coal, mining rights and privileges, to wit: All the stone coal lying and being in, under and upon the following lands, to-wit.” That this language was sufficient to transfer a fee simple estate in the coal, is too plain to admit of discussion. The intention of the parties to transfer a fee simple estate in the coal, must be found from this language, unless we find in other parts of the instrument, a contrary intention expressed in words equally plain and unequivocal.

We do not find in the instrument any other language which, by fair and reasonable interpretation is not entirely consistent with the intention so clearly expressed by the terms above quoted, except in the last' paragraph, which reads as follows : “ It is mutually understood and agreed that said second party their heirs and assigns shall have the right to abandon this contract and yield up said coal mine and privileges at any time they shall determine in their judgment that said coal is, in quantity, quality or condition, no longer minable with economy and profit; and when this contract shall be ended, for any reason, said second party their heirs or assigns, shall have the right to remove their machinery and other structures and property from said land. ”

The exact import or legal effect of this language is not clear. The defendant in error claims that, when construed in connection with other parts of the instrument it shows the intention of the parties to have been to make a lease of the coal, or to grant a license to enter and mine. Either of which would be inconsistent with the intent to convey a fee. To this it may be answered, that the subject matter of the contract was land —coal in place. It is very clear that the parties intended that the coal should be mined by the grantees and thus converted into personalty and disposed of by them. The coal was not to revert to the grantor. Nothing was to be returned to him except the consideration to be paid for the thing granted. Such is not the nature of a contract of lease. It was a sale of the coal for a consideration. True, a license was granted to enter on the lands of the grantor to mine and remove the coal conveyed — the coal of the grantees, not of the grantor.

On the other hand, we think, effect can be given to the terms of the grant, and also to the stipulations of the contract last quoted.

With regard to these stipulations, it may be said, with much show of reason, that the parties thereby intended to save and' except from the grant, such coal as could not, with economy, be mined with profit. If this be not the true interpretation, then, we think, the right reserved to the grantees to abandon the contract, when they may determine, in their judgment, no more coal remains in the premises, which, with economy, may be mined with profit, must be construed as a condition upon the happening of which, the estate granted is determined, and tlie unminable coal reverts to the grantor, liis heirs, assigns or devisees. This right to abandon the contract, does not rest in the mere will and pleasure of the grantees, their heirs or assigns, but upon their judgment exercised in good faith. Cook v. Andrews, 36 Ohio St. 174. So that, upon either interpretation, all minable coal, or, at least, all that was min-able in the judgment of Stambaugh and his associates and their heirs and assigns, passed absolutely, as lands, from Adam McClurg to the grantees named in the deed of September 28, 1867.

This being so, it follows that no estate or interest passed by the will of Adam McClurg to James L. McClurg in the coal as land, which had been previously conveyed by the deed from Adam McClurg to Stambaugh and his associates; and, of course, the mortgage from James to Darius did not create a lien on property not owned by the mortgagor. True, at the date, of this mortgage, James had an interest in all the moneys due and to become due from the Yienna Coal and Iron Company ; but as the mortgage was upon real estate alone, it did not cover the interest of James in such moneys; and, were it true, that J ames intended to pledge'his interest in these moneys to Darius, the trustees of Rayen school are not affected thereby, for the reason that they loaned money upon the faith of this security without actual knowledge of such intention, and the mortgage was not constructive notice thereof.

This is not a case for the application of the doctrine, that a mortgagee, after condition broken, may demand the rents from a lessee of the mortgaged premises. The Yienna Coal and Iron Company is not lessee of any part of the premises mortgaged by James L. to Darius M. McClurg. The moneys due and to become due from the company under the deed, September 28,1867, are not rents, but purchase money.

The conclusion to which we have arrived is fully sustained by the case of Manning v. Frazier, 96 Ill. 279.

In Caldwell v. Fulton, 31 Pa. St. 475, the court went much further and held that by a deed in which there were no words importing a grant of the fee, but which gave absolute dominion over the stone coal in certain lands to the grantees, who agreed to pay a certain and fixed sum in sólido, a conveyance of the coal in place, passed absolutely.

Without referring to other cases, I will merely add, that I know of no case, where, upon similar facts, a different conclusion was reached.

Judgment reversed.

Okey, J.

In my opinion the district court did not err. Much depends, in the proper determination of this case, upon the instrument executed by Adam McClurg, hereinbefore set forth, in the construction of which instrument regard must be had to the words in which it is expressed, applied to the facts then known to the parties. The granting clause is quoted in the opinion of the majority, and it is said that it is sufficient “ to transfer a fee simple estate in the coal,” and that the estate so granted cannot be cut down except by words equally clear. But it is not denied that the words which follow the granting clause show that a fee simple was not intended. “It cannot properly be a fee simple, if it is either base, conditional or qualified.” 1 Wash. R. P. (4th ed.) 78, n. 1. Finding that no indefeasible estate was conveyed, the rule invoked has no application, and we must seek the meaning of the instrument by exploring all its terms. Jackson v. Myers, 3 John. L. 388.

It is not denied that if the instrument is a lease of the <3oal, the mortgagees, Darius M. McClurg and John McClurg, became entitled, on condition broken, to the rents that subsequently became due. Burden v. Thayer. 3 Met. (Mass.) 76. But they are entitled to the sums becoming due annually, even if the instrument were not a lease ; for something more than a naked possibility of reverter — something more than a mere possibility of expectancy, not coupled with an interest in, or growing out of the property — remained in Adam McClurg, and consequently in the mortgagor, who succeeded to his interests, and hence there was an interest which could be effectually mortgaged to Darius M. and John. 1 Jones on Mortg. § 136. It will be observed that by each of those mortgages, the mortgagor grants, bargains, sells and conveys to the mortgagee all his right, title and interest in the premises.

No doubt one owning land in which there is unmined coal, may convey to another a fee in the coal, if he have a fee, or he may convey a less estate; or such owner may give to another license or permission to mine such coal, and such license or permission may be made to assume the form of a lease. Leases may be at will, for years, for life, or of perpetual duration; and, whatever the term, it may be subject to conditions, whereby it may be defeated or terminated. Warner v. Tanner, 38 Ohio St. 118.

In my opinion the instrument executed by Adam McClurg is a lease; and I am led to the conclusion, by the following among other considerations — taken together and not singly— that violence is done to the intention of the parties by any other construction:

1. The consideration named is one dollar, and “ the covenants and agreements of the second party, to be performed as hereinafter stipulated,” by force of which provision and others in the instrument, a forfeiture might be decreed for violation of the covenants. "
2. The things contracted about were mining privileges— “ stone-coal mining rights and privileges, to wit, all the stone-coal lying and being in, under and upon the lands” (described) with the right to enter on the lands, search for coal, and mine and remove such coal.
3. Why reserve the light to dispose of the coal if a fee was granted ?
4. The parties of the second part agree “ to pay all taxes or public charges of every kind, national, state or municipal, that may be assessed upon said coal, or upon any of the machinery or structures of said second party.” But by the act of 1859 (4 Ourwen, 3309, § 9), then and still in force (Rev. Stats. § 2192), where the fee of the soil is in one person or corporation and the right to the coal in the land in another, the soil and the coal must be “valued and listed agreeably to such ownership in separate entries, and traced to the parties owning the same respectively.”
5. The money consideration is not a sum in solido, nor even a uniform sum each year, but nine hundred dollars “ on the first day of October, and in each year during tho continuance of this agreement,” and thirty cents in addition for each ton above 3000 mined in any year, and “ payments made in any year in excess of coal actually mined in such year shall be applied in excess of coal mined in after years over said stipulated quantity.” These provisions seem very proper, if we consider them as prescribing a mode of fixing the amount of rent to be paid; but this is not a usual or natural way of stating the consideration for a conveyance of real property.
6. The parties of the second part have the right to abandon at any time. In the opinion of the majority two theories with respect to this provision are suggested, neither of which, if established, would prove this judgment to be erroneous. In support of the latter, i. e., that the right to abandon must be exercised in good faith, Cook v. Andrews, 36 Ohio St. 174, is relied on ; but the lease construed in that case was quite different from this instrument, and lam unable to see that the decision sheds any light on this case. Here the provision is too plain to be misunderstood: “It is mutually understood and agreed” — so the instrument provides — •“ that said second party, their heirs and assigns, shall have the right to abandon this contract and yield up said coal mine and privileges, at any time they shall determine, in their judgment, that said coal is in quantity, quality or condition no longer minable with economy and profit; and when this contract shall be ended for any reason, said second party, their heirs ’ or assigns, shall have the right to remove their machinery and other structures and property from said land.” That this conferred power to abandon which was practically unlimited, I cannot doubt.
7. The parties speak of the instrument as a contract ” and an “ agreement.”
8. The wife of Adam McClurg, then and still living, is not a party to the instrument, nor does it appear that she was requested to sign it.
9. The parties of the second part caused the instrument to be recorded in the record of leases and not elsewhere. The recorder was then and still is required to keep four sets of records, in one of which deeds, and in another, leases are to be recorded. S. & C. 1278 ; S. & S. 655 ; Rev. Stats. § 1113. And in the answer of the Vienna Coal and Iron Co. it is said that it is the owner and holder of the coal lease and contract, and the coal, coal mining right, privilege and easements therein and thereby granted and conveyed by Adam McClurg:. . That the stipulated annual coal rent, therein provided, whether coal has been mined or not to meet the quantity of 3,000 tons of 2210 pounds to the ton, at 30 cents per ton, being $900 per year, has been regularly paid in advance, and sufficient coal has not yet been mined from said land to equal said advance yearly rents paid ; that there is nothing now due on said coal lease for rent or royalty from this respondent, or from the lessees in said lease, and nothing will become due thereon until October 1, 1878, when $900 more will become due on the whole lease, provided,” etc. This shows very clearly how the instrument has been regarded. “ Tell me what you have done under such a deed, and I will tell you what that deed means.” Attorney General v. Drummond, 1 Drury & Warren, 353, 368 ; aff. 2 H. of L. 837; Whart. Con. § 653.

In support of the judgment of reversal in this case, two decisions are cited in the opinion of the court. One of these is Caldwell v. Fulton, 31 Pa. St. 175, which is said to hold that by a deed in which there were no words importing a grant of the fee, but which gave absolute dominion over the stone coal in certain lands to the grantee, who agreed to pay a certain and fixed sum in solido, a conveyance of the coal in place passed absolutely. But an examination of the case will show that whatever was granted was in terms granted to the grantee, his heirs and assigns, for a sum in solido. The objection was that a grant of the privilege of digging and carrying away coal, did not grant the coal; but the court overruled the objection, and properly. 3 Wash. R. P. (1th ed.) 382. The little application the decision has to this case is in favor of the view I have endeavored to maintain. See cases cited by counsel, in which that case is commented upon ; also, Union Pet. Co. v. Bliven Pet. Co., 72 Pa. St. 173 ; Scranton v. Phillips, 94 Pa. St. 15; Grubb v. Grubb, 71 Pa. St. 25.

The other case relied on in the opinion is Manning v. Fraz ier, 96 Ill. 279, in which the opinion vras delivered by Walker, J. Three judges concurred with him, and an equal number dissented. Aside from that, the case falls far short of supporting this judgment.of reversal. The instrument under consideration there, was a conveyance to one and his heirs, of all the coal-in a described lot of land. He was not obliged to mine or pay for any particular quantity in any year; he was only permitted to abandon the mine “ when the coal should be exhaustedthe instrument was recorded in the proper record of conveyances; and other grounds upon which my opinion as to the proper construction of this instrument is based, do not apply to the instrument under consideration in that case.

Additional reasons might be given in support of the judgment of the district court; but I should not devote further time or space to the subject.


source: Caselaw Access Project

author: Johnson, O. J.

license: Public Domain

text:
    Matthews v. Davis.
    The payee of two promissory notes, given in part execution of a single contract, brought separate actions thereon against the maker, who in each action interposed the same counter-claim for damages caused by payee’s alleged fraud in making the contract.
    In one of these actions, a demurrer to this counter-claim was sustained, and after final judgment on the note, and after error was pending in this court to reverse the judgment on the ground that the court erred in disallowing the counter-claim, the defendant prosecuted his suit for damages thereon in the other action and accepted an agreed amount as his damages arising on such counter-claim, which was credited on the note sued on in that action, and judgment was rendered for the plaintiff for the balance due on that note.
    These facts were by leave of this court, brought into the record in this case by answer, to which the plaintiff in error demurred. Held: 1. That facts of this nature occurring since the final judgment sought to be. reversed, which in law, operate as a release, waiver or bar of the errors assigned, may be pleaded in this court, as a defense to a proceeding in error. 2. That the foregoing facts are in legal effect, a withdrawal of the counter claim in this action and the plaintiff in error having received in the other action, the damages arising on the same, waives Ms right to reverse this judgment for error in disallowing the same claim for damages in this action.
    Error to the District Court of Erie county.
    Davis, the payee of a promissory note, brought an action thereon against Matthews, the maker. Matthews filed a counterclaim to recover damages arising out of the same transaction in which the note was given. A demurrer to this counter-claim was sustained on the ground, that the facts therein stated showred that it was a joint claim for damages in favor of the maker of the note and his partner. This judgment was affirmed by the district court, and Matthews filed this petition in error assigning for error the action of the courts below, in disallowing this counterclaim. Since the case has been pending here, the plaintiff in error, who had also interposed the same counter-claim in another action against him, brought by Davis, on a like note arising out of the same ti-ansaction pi-osecuted his claim for damages in that action against him, and on the trial, he was allowed a sum of money in satisfaction of his damages which was agreed upon by the parties, and applied in part payment of that note, whereby all claim for damages by reason of the facts stated in said counter-claim was fully paid.
    By leave of this court, these supplemental facts are made to appear by answer of defendant in error to which there is a demurrer.

      John M. Lemmon and King & Sloane, for plaintiff in error.

      H. c& L. IL. Goodwin, for defendant in error.
   Johnson, O. J.

These facts show, that since the pendency of the case in this court, the subject matter in controversy, the claim for damages arising on the counter-claim, has been settled, and that the plaintiff in error has received full satisfaction therefor. By such settlement, and the receipt of the amount of damages mutually agreed upon, his claim is satisfied and extinguished. This is a waiver of the right to further prosecute error on the ground that the court below refused to allow his counter-claim. Should this court proceed to final judgment and reverse the judgment below, it would prove a barren victory for plaintiff in error, as by the executed agreement, his counter-claim is extinguished. He commenced his action here, to reverse a judgment prejudicial to him, so that he might claim damages. After that he accepted a sum of money from defendant in error in satisfaction of his claim in another pending action. He could not prosecute his counter-claim in both actions. A satisfaction of it in one, was a withdrawal of it in the other. If both were pending at the same time, a judgment in one, would be a bar to it in the other. In the case now sought to be reversed it was disallowed by the court, and the case was pending here on error, when he insisted on the same claim in the other action and it was by mutual agreement allowed. This was in effect a withdrawal of it in this action and a waiver of all error in disallowing.

His right to costs arising on this counterclaim, were disposed of in that case, and as he withdrew the subject matter from judicial cognizance in this case by pleading it in that, he has no right to require of this court to review the record to determine the mere question of the costs made on error. Tabler v. Wiseman, 2 Ohio St. 201.

Nor can there be any objection to the manner in which these facts are brought up on the record in this court. They are set up by way of answer to which the plaintiff in error demurs. These facts which operate as a waiver, occurred since the judgment was rendered, and since this ease was pending here on error. They are of the same nature as facts constituting a release of error, or an estoppel. Such facts may be pleaded. Collins v. Davis, 32 Ohio St. 76.

This judgment is therefore affirmed. The plaintiff in error, by obtaining the relief sought on his counter-claim in another action must be held to have waived his right to reverse the judgment on the ground that it was disallowed in this.

Judgment affirmed.


author: By the Court.

text:
    Crooks v. Finney.
    Where a promissory note is given and received in payment of a mechanic’s claim for materials furnished and work done in erecting a house under a contract with the owner, the lien of the mechanic is waived.
    Error to the District Court of Franklin county.
    The Door, Sash and Lumber Co., having furnished materials and done work in putting up a partition and counters on leasehold premises, under a contract with the lessee, made in September, 1878, took the steps prescribed by the statute to secure a mechanic’s lien, November 16,1878, and in December, 1878, filed a petition in the court of common pleas of Franklin county to enforce and foreclose the lien, making Finney, the lessee, and Crooks, the lessor, who claimed to have a lien on the same property, parties defendants. The petition contains the following allegations: “That on the 7th day of November, 1878, said Finney, in payment thereof, gave his promissory note, payable to the order of plaintiff, one day after date, for $334.50, with interest at eight per cent, per annum. That said note was not paid at maturity, and on the 18th day of November, 1878, plaintiff obtained a judgment, by confession, on said note, in this court, for said $334.50 and interest from said November 7th, 1878.”
    The demurrer of Crooks was sustained and the petition was dismissed, which judgment was reversed in the district court, and the cause remanded for a new trial. On such new trial judgment was rendered in favor of the company for the amount of the lien, and error is prosecuted in this court by Crooks.

      R. B. Smith, and G. K. Nash, for plaintiff in error:
    The lien was discharged by taking the note. McCoy v. Quick, 30 Wis. 521; Phillips on Mec. Liens, § 275. .

      R. T. Clarke and C. E. Burr, for defendants in error:
    There is no statement that the company received the note in jiayment. The allegation amounts to no more than that the note was given to evidence the time and amount. Hoyt on Mec. Liens, 19; Miller v. Moore, 1 E. D. Smith, 739; Tease v. Christie, 2 E. D. Smith, 621; Althouse v. Warren, Ib.; Hall v. Pettigrove, 10 Hun, 609; Swan’s Tr. (11th ed.) 693 ; Merrick v. Boury, 4 Ohio St. 60.
   By the Court.

The rule of the common law requiring pleadings to be construed most strongly against the pleader, has been abrogated (Rev. Stats. §§ 4948, 5096); but the petition and answer are required to be in ordinary and concise language ” (Rev. Stats. §§ 5060, 5070), and no construction can be permitted which will be, in effect, a perversion of their language. Indeed, in some cases the language must be strictly construed. Rev. Stats. § 4948; Mech. etc. Association v. O'Connor, 29 Ohio St. 651. By this petition, its language being fairly construed, it is admitted that the promissory note was given and received in payment of the company’s claim ; and hence the subsequent steps in endeavoring to perfect and enforce a mechanic’s lien, based on such claim, were wholly ineffectual. Judgment reversed.


author: Doyle, J.

text:
    The State v. Commissioners.
    By statute, passed April 20, 1881 (78 Ohio L. 403), the commissioners of Hamilton county are authorized to lay out, open, grade and macadamize a road between certain points named, and to pay the cost thereof out of any unexpended balance in the road fund of the county ; provided that no part of the money appropriated shall be applied in the purchase of the right of way. The act further provides that when a petition, signed by a majority of the property holders, shall be presented to the commissioners praying for its opening, they shall cause a survey and estimate of the cost of the road to be made, and the work shall be let to the lowest bidder. Held :

    1. Before the commissioners can expend the fund appropriated, for opening, grading or macadamizing any part of the road, the entire right of way must be secured without cost to the county.

      2. Where the road, as located, passes through land owned by minors, the right of way is not secured therein by a deed executed by the guard- • ian of such minors without authority from the probate court. A guardian has no power to make such conveyance, and as against the minors the same is void.
    3 The commissioners will be enjoined, in an action properly brought for that purpose, from expending the money so appropriated, in the construction of said road, until the right of way is legally obtained.
    Motion for temporary injunction.
    The action was commenced in the Superior Court of Cincinnati, for the purpose of restraining, by injunction, the county commissioners from letting a contract or expending any of the unexpended balance of the road fund of the county, in laying out, opening, grading and macadamizing a road authorized by the act of April 20, 1881 (78 Laws 403).
    That act is as follows :—
    “ Section 1. Be it enacted, &c., that the commissioners of Hamilton county are authorized, if in their opinion the public interest shall require it, as hereafter provided, to lay out, open, grade and macadamize a road commencing at the corporation limits of Cincinnati, where the Kirby road terminates, and running thence by the shortest and best route to the Colerain turn, pike, north of the school-house at Mount Airy, a distance not to exceed two miles, and to pay the cost of said road out of any unexpended balance in the road fund of said county, provided that no part of the money appropriated shall be applied in the purchase of the right of way.
    ‘ ‘ Sec. 2. That when a petition signed by a majority of property holders along the line of said road, shall be presented to the commissioners praying for its opening, they shall cause a survey of the same, and prepare an estimate of its cost; the work, after due notice, shall be let to the lowest responsible bidders, as provided by law.”
    A petition, signed by the requisite number of property owners, having been presented, the commissioners caused a survey of the road to. be made, and were proceeding to open and improve the same, and thus expend the fund mentioned in said act. The road, as established, passed through a tract of land owned in liis lifetime by one Byron Kirby, in respect to which the bill of exceptions contains the following admission.
    “ Upon the hearing it was admitted, that the right of way through the land of the Kirby estate, of which Byron Kirby died seized was by deed, executed by the widow of Kirby alone; as guardian, and that Byron Kirby died intestate leaving children who still survive. None of said children of Kirby signed said deed.”
    The superior court of Cincinnati having dissolved a preliminary injunction theretofore granted, a petition in error was filed in the district court by the relator. A motion was made in that court for an injunction, pending the proceeding in error, which was denied. The action coming into this court on error to the district court of Hamilton county, a like motion is now made here.

      J. J. Qlidden, for the motion. •

      Storer & Harrison, contra.
   Doyle, J.

It is clear that before the commissioners can proceed, under the authority conferred by the act of April 20, 1881 (78 Ohio L. 403), to use any part of the unexpended balance of the road fund of the county to open, grade or macadamize the road provided for by said act, the entire right of way for the whole length of the road must be secured, without the expenditure of any part of that fund for that purpose. The commissioners cannot, by constructing any part of the road, upon lands where the right of way has not been obtained, subject the county to the alternative of paying for it in the future, or being dispossessed after the improvement is made. Nor can the commissioners proceed, having obtained a part of the right of way only, to construct the road over such part, leaving it uncertain whether the balance of the right of way will ever be secured to the county free of cost, and consequently uncertain whether the entire road will ever be completed. The intention of the legislature evidently was to authorize this unexpended balance in the road fund, to be used in laying out, opening and improving this road, provided the entire right of way, between the named termini, is first secured to the county without cost.

The petition alleges, among other things, as ground fer an injunction, that the right of way has not been secured. This allegation the answer denies. The record discloses the fact that the road, as located, runs through a tract of land owned, in his lifetime, by one Byron Kirby; that he died seized of the land, intestate, leaving children; that the widow, who is the guardian of the children, made a quit-claim deed to the county for the right of way through said tract of land, none of the heirs joining therein, and that the county has no other title to that part of the right of way.

The general power of a guardian over the real estate of his ward, is to manage it for the best interest of the ward and to receive and account for the rents and profits. He may lease it, but not beyond the term of the guardianship. He cannot sell or convey any part of it. Genet v. Talmadge, 1 Johns. Ch. 561; Morrison v. Kinstra, 55 Miss. 71; Field v. Schieffelin, 7 Johns. Ch. 154; Appeal of Stoughton, 88 Pa. St. 198; Tyler on Inf. & Cov. 260. The power to sell and convey must be conferred by statute. The jurisdiction of courts of chancery to order the sale rested upon statutory provision, Rogers v. Dill, 6 Hill, 415 ; Williams’ Case, 3 Bland Ch. (Md.) 186. A guardian has no power, in this state, wdiere the subject is regulated by statute, to sell the real estate of his ward except by order of the probate court, in a proceeding properly instituted for that purpose; certainly no power to give it away even for a public use, and perfect the gift by the execution and delivery of a deed.

The numerous statutes in this state, conferring special powers upon guardians in special cases, do not authorize a sale or conveyance of the realty, or a dedication of any part of it to public use, either expressly or by necessary implication. Indeed, if any implication arises from them it is rather that such power, which would necessarily include most of the special powers granted by legislation, does not exist.

The statutes principally relied upon in argument, authorize the guardian, in certain cases, to agree with a corporation seeking to appropriate tlie land of the ward, as to the 'amount of compensation (but not to convey without order of court) Rev. Stats. § 6415 ; to represent the ward in applications for damages in the proceedings of the commissioners in laying out, constructing and improving certain roads (Rev. Stats. § 4834); to act for the ward in petitioning for or remonstrating against the laying out and establishing free turnpike roads (Rev. Stats. § 4799), and the like. Under none of these statutes, is the estate of the ward supposed to be diminished by the action of the guardian. The act of April 20, 1881, under which the commissioners are proceeding in this case, confers no power either to appropriate or pay any compensation for the land. When the guardian has done all that is authorized by sections 4834 and 4799, R. S. the county is as much required to appropriate the land to be used for the highway, as if the guardian had not exercised the power there granted. The fact that this is a grant to the public, for a highway, does not affect the question. A guardian has no power either to convey the fee, or to incumber the estate with a permanent easement; he cannot grant an easement or license in the land of his ward, beyond the term of the guardianship. Watkins v. Peak, 13 N. H. 377; Johnson v. Carter, 16 Mass. 442.

The claim that the guardian, having the management and possession of the real estate, can permit the county to enter upon the land to construct this road, and that this conveyance at least grants a license to the county, voidable only, is only another way of reaching the same difficulty. If the license could, under any circumstances, become irrevocable, during the minority of the wards, the guardian had no more power to* grant it than to grant the fee; if revocable, either'by the guardian, or the wards after arriving at full age, the county did not thereby obtain the right of way contemplated by the act, which must be a permanent right in the public to use the land for a highway.

Campbell v. Park, 32 Ohio St. 554, has been relied upon by counsel in resisting this motion, but no authority for the action of the guardian here, can be found in the report of that case.

The defendants will be enjoined from expending the moneys of the road fund, in opening or improving the proposed road, until, upon a route lawfully located under said act, the entire right of way is legally obtained.

Judgment accordingly.


text:
    Scott v. Perlee.
    1. A citizen of another state may contract in this state for a loan of money to be used in the state of his residence, and agree to pay interest therefor, lawful by the laws of the latter state, although the rate exceeds that allowed hy the laws of this state.
    2. In such case the contract is not rendered usurious hy the fact that the note is executed in Ohio, if the parties, without intending to evade our usury laws, contract with reference to the laws of the state where the debtor resides.'
    8. It is not essential to the validity of such contract as to the interest, that the note should he made payable, in express terms, in the state where the maker resides. To ascertain whether the parties intended, in good faith, to contract with reference to the laws of such state, all the circumstances surrounding the transaction will he examined.
    Error to the District Court of Hamilton county.
    John Perlee sued the plaintiffs upon the promissory note of which the following is a copy :
    “ $1,000. Fairbury, 111., Jan. 1st 1871.
    “ One year after date we promise to pay to the order of John Perlee one thousand dollars at ten per cent, from date.
    “Andrew J. Scott,
    “ Henderson W. Scott,
    “Due Jan. 1st, 1872. “Security.”
    The interest was paid for five years at the stipulated rate and $700 paid on the principal.
    The petition claims there is a balance due-of $300, with ten per cent, interest from January 1, 1876, and interest at six per cent, on two installments of interest past due.

      The defendants answered that the note was executed and delivered, and the contract upon which said note was given was made and finally completed in' Hamilton county, Ohio ; that $335 of said interest is usurious, and that said usury should be credited (so far as it is in excess of six per cent.) from the date thereof upon the principal. There is a denial that the note bears ten per cent, interest; and a denial that the two installments of interest bear six per cent, after due.
    The plaintiff replied, denying that the note was executed, or the contract made, in Hamilton county, Ohio, and avers that the note was executed and the contract to loan the money made in Fairbury, Illinois, and that by the law of Illinois parties may legally contract for ten per cent, interest.
    The court of common pleas gave judgment in favor of Perlee, the case being tried to the court without a jury.
    The defendant, Scott, filed a motion for a new trial which was overruled, and bill of exceptions was taken. The judgment was against Andrew J. Scott as principal and Henderson W. Scott as his surety.
    The motion for a new trial was upon the ground that the findings and decision were contrary to law and not sustained by sufficient evidence. The entire evidence is set forth in the bill of exceptions. The plaintiff offered the note and the statute of Illinois on the subject of interest, showing that ten per cent, per annum was a legal rate of interest in that state, at the date of said note and since, and rested. Thereupon the defendant, Andrew J. Scott, offered himself as a witness and testified as follows: “ I obtained the loan from the plaintiff through my brother, my security, residing in Ohio ; he and Perlee lived in Ohio ; I lived in Illinois; I sent the note to my brother, my security on it; my brother then signed the note here in Ohio, and handed it to the plaintiff; I made the payments of interest myself; I sent the interest to plaintiff in Ohio; I paid him twice by draft; the loan was procured by Henderson W. Scott in Ohio.”
    Upon cross examination, witness said: “The payments were all made here to plaintiff; I moved here in January, 1872 ; .....the contract for the loan was not made in lilinois; I wrote to my brother hereto procure the loan; the matter was not talked over in 1870 in Illinois about the loan ; Per-lee and I are brothers-in-law ; . . . I did not obligate my surety to sign this note when plaintiff was in Illinois, or arrange for him to become security.” Which was all the testimony offered by the defendant.
    Perlee in his own behalf testified : “ I and my wife were in Illinois in 1870 to see defendant, A. J. Scott; he was building and wanted money ; I said I did not have any; I said I had bonds; he offered me ten per cent, interest in summer of 1870, I said I had my money in bonds; I agreed to loan him the money at ten per cent.; Henderson W. Scott to go on note; I was willing to let him have it on the terms named; this took place at Fairbury, Illinois, while I was visiting A. J. Scott, in the summer of 1870, and this note was sent without any other or further conversation or arrangement between us; I got the note from Henderson W. Scott in Ohio, and gave him the money to send to Andrew J. Scott; the interest was paid by A. J. Scott, when due, by draft on New York; I credited $100 on interest and $700 on the principal.
    The judgment of the court of common pleas being affirmed by the district court, this proceeding is prosecuted for the purpose of reversing such judgment of affirmance.

      Thomas Millikin and O. J. Smith, for plaintiff in error.

      Alex. Buckingham and A. O. Jenkins, for defendant in error.
   Doyle, J.

The findings and judgment of the court, where a case is tried without the intervention of a jury, will not be disturbed by this court, unless such findings and judgment are clearly against the weight of the evidence In the present case, the testimony, beyond what appears upon the face of the note, consists solely of that given by the two parties, Scott and Perlee. Which of them was to be believed, was a matter properly to be determined by the court trying the case, and if the judgment can fairly be sustained upon the testimony of either, it ought not to be reversed. Landis v. Kelly, 27 Ohio St. 571.

The court might well find from this testimony, if the plaintiff was believed,that in the summer of 1870, the plaintiff Avas in Fairbury, Illinois, where the defendant, Andrew J. Scott, resided ; that the latter, desiring money to carry on some building enterprises in which he Avas engaged, in Illinois, applied to the plaintiff, who Avas his brotlier-in law and visiting him at the time, for a loan, agreeing to pay him therefor ten per cent, interest; that the plaintiff agreed to make the loan upon the terms named, upon defendant’s note, with Henderson W. Scott, who lived in Ohio, as surety, and that without any further arrangement Scott wrote the note at Fairbury, at which place he dated and signed it; that it was then sent to Ohio to the surety, who signed it and delivered it to the payee, receiving the money in this state and forwarding it to the principal, and that the parties intended in good faith, to contract with reference to the law of Illinois, as to the rate of interest to be paid for the use of the money.

The question presented for our consideration therefore is, whether such a contract, thus made, is usurious? That this contract Avas executed in Ohio may be conceded; although signed in Illinois by the principal debtor and there dated, it was delivered in Ohio and was not a completed contract until delivery. The fact that the loan was negotiated for in Illinois in accordance with the written terms of the note, is not insignificant, however, in determining the intention of the parties to contract with reference to Illinois law. Findlay v. Hall, 12 Ohio St. 612. It is then, the case of a citizen of Illinois, executing his note in Ohio, in pursuance of an arrangement previously made in Illinois, for money borrowed to be used in the latter state, with an agreement to pay interest according to her laws, not intending or attempting thereby to evade our usury laws, but in good faith. Is such a contract tainted with usury?

Since the cases of Finlay v. Hall, 12 Ohio St. 610, and Kilgore v. Henypsey, 25 Ohio St. 413, it is undoubtedly the law of this state, and indeed it is noAV well established almost universally, that where a contract is entered into in one state, to be performed in another, between citizens of each, and the rate of interest is different in the two, the parties may, in good faith, stipulate for the rate of either, and thus expressly determine with reference to the law of which place that part of the contract shall be decided. Where such a contract, in express terms, provides for a rate of interest lawful in one but unlawful in the other state, the parties will be presumed to contract with reference to the laws of the state where the stipulated rate is lawful, and such presumption will prevail until overcome by proof that the stipulation was a shift to impart validity to a contract for a rate of interest, in fact usurious. Fisher v. Otis, 3 Chandler, 102; Butters v. Old, 11 Iowa, 1; Arnold v. Potter, 22 Iowa, 198; Newman v. Kershaw, 10 Wis. 340; Horsford v. Nichols, 1 Paige Ch. 225 ; Townsend v. Riley, 46 N. H. 300; Depau v. Humphreys, 20 Martin (La.) 1; Fanning v. Consequa, 17 Johns. 511; Pratt v. Adams, 7 Paige, 615 ; Chapman v. Robertson, 6 Paige, 627; Richards v. Globe Rank, 12 Wis. 696.

If the parties to the note in question had expressly stipulated in the note, that it was payable in Illinois, the contract to pay ten per cent, interest would be perfectly valid, although the note was executed in Ohio. Is it rendered invalid by reason of the omission to make that express stipulation ? It is not entirely settled, by the authorities, where this note, as a matter of interpretation, is payable, there being no place expressly stipulated; but the weight of authority and the sounder reason, we think, sustain the proposition, that a note dated and signed at the place of residence of the" debtor, and containing stipulations, lawful under the laws of such place, but forbidden by the law of the residence of the creditor, or where the note was completed by delivery and no other place of payment is named, will be presumed to be payable at the former place, assuming of course that no attempted evasion of the usury law of the latter is proved. In other words, in the absence of any proof the presumption of law is that the note in question is an Illinois contract, and is valid both as to principal and interest. To overcome this presumption the actual facts may be shown. It is shown that the contract was delivered in Ohio; but, taken in -connection with the other facts proved, that does not overcome the presumption that it is paj^able in Illinois, where the debtor resides, where lie dated and signed bis contract, and where alone it is legal according to all of its terms. 2 Parsons on Contracts, 584, and cases cited ; Daniels’ Neg. Inst. §. 90; Arnold v. Potter, 22 Iowa, 198; Tillottson v. Tillottson, 34 Conn. 336; Jewell v. Wright, 30 N. Y. 264. Where such express stipulation 'would uphold the contract, if the same thing can fairly be inferred from what is stipulated, it will likewise be upheld.

But, while we believe that this contract can be thus sustained, it is not necessary to place the decision upon that ground. There is no reason why a citizen of Illinois, or any other state, may not come into Ohio and borrow money to be used in the state of his residence, and in good faith contract with reference to the laws of the latter state, independently of where his note is executed or where it is legally presumed to be payable. In such case the only question is one of good faith. Did he honestly contract with reference to the law of his allegiance, the law of the state or country where he lives?

In Arnold v. Potter, 22 Iowa, 194, the note was made by a citizen of Iowa, in Massachusetts, payable in New York, and the court instructed the jury that “ If defendant went to Boston and urged the loan and promised ten per cent, under the laws of Iowa, and all the arrangements and contracts were made as to the laws of Iowa, in good faith, then the defense fails and plaintiff can recover. If the parties in good faith loaned and borrowed the money sued for with a full understanding that the law of Iowa was to govern as to the interest, then the laws of New York and Massachusetts can have no influence, but the understanding of the parties must prevail.” The supreme court in affirming this charge say : “ The form of the transaction is nothing, the cardinal inquiry being when the contract specifying the amount reserved is express, did the parties resort to it as a means of disguising the usury in violation of the laws of the state where the contract was made or to be executed, and in arriving at this intention all of the facts are to be taken into consideration.”

It is true that in • this case, like Chapman v. Robertson, supra, security was given by mortgage upon lands in the state of the debtor’s residence, but the fact that security is given for a note does not alter the terms of the note. But such fact has significance in determining what the intention of the parties was, as to the laws of which state their contract had reference, or by which it was to be construed. Newman v. Kershaw, 10 Wis. 341; Fisher v. Otis, 3 Chandler, 83; Horsford v. Nichols, 1 Paige Ch. 225 ; 2 Kent Comm. 12 Ed. 460, bottom p. 623.- It is a fact of no greater significance than is found in this case, where the borrower actually negotiated for the loan in the state of his residence, dated his note there, and stipulated for interest allowed by her laws. See Horsford v. Nichols, supra; 10 Wis. 340.

In a recent case, Kellogg v. Miller, 13 Federal Reporter, 198, decided by McCrary, O. J., in the circuit court of Nebraska, he held, upon a state of facts very like those recited in this case. except that there was a mortgage security, that the contract was valid upon both grounds assumed in this opinion, first, because the contract was to be performed in Nebraska, and second, the ground we are now considering, “ A citizen of one state may loan money to a citizen of another state, and contract for the rate of interest allowed by the laws of the latter state, although the legal rate of interest allowed is greater in such state than in the state where the contract is made, and in which it is to be performed.” See also Tilden v. Blair, 21 Wall. 241, and comments thereon of Folger, J., in 77 N. Y. 580, that the ruling consideration of that case was the intention of the parties, that the draft should be used in Illinois, as a contract of that state, although accepted' and payable in New York. Wayne Co. Savings Bk. v. low, 6 Abb. N. C. 76, 95, affi’d 81 N. Y. 569 ; 2 Kent Com. 12 Ed. bottom p. 622-625, and note ; Vliet v. Gamp, 13 Wis. 208. Indeed these cases are but applications of the rule as given by Lord Mansfield. “ The law of the place can never be the rule, where the transaction is entered into with an express view to the law of another country, as the rule by which it is to be governed.” Robinson v. Bland, 2 Barr, 1078. The place of making the contract is not to be so exclusively regarded, but that when the contracting parties had reference to another place that may be regarded; that is, the intention of the parties shall govern when it is made manifest. Fisher v. Otis, supra. That the parties here entered into this contract in good faith with reference to the laws of Illinois, there can be no doubt. The law of Ohio never entered into the transaction so far as the intention of the parties can be ascertained. There was no intention to make an illegal contract; and to hold it illegal, we must be able to say that the mere fact that Scott forwarded this note to his surety for his signature, and that it was signed and delivered by the surety in Ohio, and the money there paid (more than probably as a mere matter of convenience), has the effect of defeating the intention of the parties. It is difficult to perceive upon what principle we should so find.

We do not in thus holding encourage two citizens of Ohio to attempt to contract here, for money to be used here, and make their notes payable in another state; nor, in any way, relax the strictness of the rules which prevent any form of evasion of the law against usury; but we hold that it is not repugnant to such law for a person to contract with reference to the law of his domicil, for money to be used there, where no such evasion is sought or intended. Judgment affirmed,.


author: Upson, J.

text:
    Warner v. Railroad Company.
    1. Where the owner of land granted to a railroad company, the right to select a strip thereof for its right of way, and from the terms of the grant, and the circumstances under which it was made, it is clear that both parties understood that the right granted was to be exercised at the time of the final location and construction of the railroad, and not afterwards, a court of equity will, by injunction, restrain such railroad company from taking possession of any additional part of said land, after its railroad has been located and completed.
    2. Where the terms of a grant of a right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been fully described by the terms of the grant.
    Error to the District Court of Licking county.
    In February 1847, Presley N. O’Bannon executed, and delivered to the Columbus and Lake Erie Railroad Company, the following instrument:

      “ The state of Ohio, Licking county.
    “In consideration of one dollar to me paid by the Columbus & Lake Erie Railroad Co., I, P. N. O’Bannon, of said county, do hereby grant and release to said company the right to enter upon any land I own which lies on the line of said company’s road, surveyed and accepted by them, and the right to run in curves and around the line in the final construction of said railroad over said land, and to hold and use a strip thereof to be selected by the engineer, not exceeding 100 feet in width, for the purpose of a railroad, as long as may be necessary, and use the materials standing or being on said strip in the construction and repair of said road, and also the right of crossing other parts of my land to get to said roadway in the construction and repair of said road, doing me no unnecessary damage. Witness my hand and seal this 2d day of February 1847.
    “ In the presence of P. N. O’Bannon. [Seal] ”
    J. D. Rogers.
    Joseph Elder.”
    O’Bannon in fact received no consideration for the rights thus granted. lie then owned the piece of land described in the plaintiffs’ petition, and also another piece north of the land now owned by the plaintiffs, and in the same township.
    In 1848 the Columbus and Lake Erie Railroad Company located and constructed its road through the piece of land last mentioned, a strip about forty-four rods in length being used for its right of way. No part of the track was placed on the land now owned by the plaintiffs, nor was any part of that land then occupied by the railroad company excepting for the purpose of taking a quantity of earth therefrom, and driving teams over a small part thereof. This occupation continued only a few months, and no notice was given of an intention on the part of the railroad company to occupy permanently any part of this piece of land. Several years afterwards however, probably in 1864, the railroad company took possession of a strip of •this land, about eight or ten feet in width and more than fifty feet in length, by placing thereon a part of an embankment.
    The acts of the railroad company above stated were acquiesced in by O’Bannon and his grantees. In March, 1874, •the Baltimore and Ohio Railroad Company attempted to take possession of another strip of the plaintiffs’ land, adjoining the railroad, thirty-six feet in width and one hundred rods in length, under the grant made by O’Bannon ; claiming the right to do so as lessee of the defendant the Sandusky, Mansfield and Newark Railroad Company, the latter company claiming as assignee of the Columbus and Lake Erie Railroad Company.
    The plaintiffs thereupon filed, in the court of common pleas of Licking county, a petition to quiet their title, and to prevent the defendants, by injunction, from interfering with their possession. The case was taken by appeal to the district court, which court dissolved the injunction which had been granted, and dismissed the petition. This proceeding is prosecuted to reverse the judgment of the district court.

      II. D. Sprague, for plaintiff in error.

      Charles H. Kibler, for defendant in error.
   Upson, J.

The instrument under which the defendants claim the right to take possession of the strip of land in controversy in this action, was executed by O’Bannon for the purpose of giving the right of way through his lands, to the Columbus and Lake Erie Railroad Company. From the language used, and the circumstances undér which the grant was made we are satisfied that both parties understood that the rights granted were to be exercised at the time of the final location and construction of the railroad; that the quantity of land required by the railroad company was then to be determined, and the selection made by the engineer. O’Bannon did not intend to create an uncertain and indefinite incumbrance on all of the lands which he owned on the line of the railroad, the limits of which could only be fixed at the will of the railroad company. On this ground, therefore, we hold that the district court erred in dismissing the plaintiffs’ petition. But we place the decision of the case also upon another ground. It is a general principle that when a right of way, or other easement, is granted by deed, without fixed and defined limits, the practical location and use of such way, or easement, by the grantee, acquiesced in by tbe grantor, will have tbe same legal effect as if it bad been fully described by tbe terms of tbe grant. Bannon v. Angin, 2 Allen, 128.

In tbis case tbe terms of tbe grant are general and indefinite, applicable to any, or all, of tbe lands owned by O’B&n-non on tbe line of tbe railroad; giving to the company tbe right to locate its road on any part of those lands, and giving to the engineer tbe right to select a strip of land not exeeding one hundred feet in width, for the purposes of tbe railroad.

Tbe testimony shows that tbe railroad was constructed through one jfiece of O’Bannon’s land, a strip about forty-four rods in length being used for tbe right of way, and that several years afterwards, probably about 1861, a strip of tbe land now owned by tbe plaintiffs was occupied by tbe railroad company, for tbe purpose of placing thereon a part of an embankment. Tbe use of these strips of land has been acquiesced in by O’Ban-non and tbe plaintiffs, and we bold that having thus exercised tbe rights granted by O’Bannon, tbe Columbus and Lake Erie Railroad Company cannot, nor can any of tbe defendants, as successor or assignee of that company, take possession of any other part of the plaintiffs’ land under tbis grant.

Judgment reversed and cause remanded for further proceedings.


author: Okey, J.

text:
    Dickson v. The State.
    1. While the court is vested with discretion to refuse or permit the examination of a witness who has remained in court, by procurement or connivance of the party calling him, in violation of an order for the separation of witnesses, it is vested with no such discretion to prevent such examination where there has been no such procurement or connivance ; but the order is to be enforced by the officers in attendance, and disobedience of it punished by the court as for contempt.
    2. On a trial for homicide caused by a deadly weapon in the hands of either the accused or his brother, both of whom were engaged in an affray with the deceased, in which affray the latter first attacked the brother, there was a conflict in the evidence as to which struck the fatal blow :
      Held, that threats of the deceased, which may have referred to the brother, made to a third person present 'immediately preceding the attack, though not communicated to the defendant or his brother, are competent as part of the res gestee.

    3. On the trial of one charged with homicide, a witness on behalf of the state gave evidence tending to show that the defendant struck the blow which caused the death ; and the witness having been cross-examined with a view to his contradiction, admitted that he had held a conversation on the subject of the homicide with another person, at a time and place stated, but denied that he had said to such person that it was not the defendant who struck the blow. Held: That the counsel for the state could not, on re-examination of the witness, show what he said in such conversation, until testimony was offered to contradict such witness.
    Error to the Court of Common Pleas of Hamilton county.
    William Dickson was indicted for murder in the second degree. The charge was that he killed Walter Greaves purposely and maliciously, and the indictment embraced the crime of manslaughter. On the first trial the defendant was convicted of manslaughter, but the verdict was set aside on the ground of newly discovered evidence. On the second trial he was again convicted of manslaughter, and he was sentenced to the penitentiary.
    The homicide occurred in a saloon in Cincinnati between 7 and 8 o’clock, on the evening of Sunday, September 26, 188Í. Death resulted from a blow in the temple with some sharp instrument, and there was conflict in the testimony whether the blow was given by the defendant or his brother George. The questions to be determined relate to the separation of witnesses, the admissibility of declarations of the injured party as part of the res gestee, and the practice as to the impeachment of witnesses by proof of inconsistent statements.

      O. II. Blaelcburn, W. T. Logan and Rich Ermsten, for plaintiff in error:
    The fact that witness, in disregard of the order of the court, remains in the court-room while another witness is testidoes thereby, disqualify him as a witness.' Rose. Grim. Ev. 134, 135, and notes; Ruby v. State, 9 Tex. App. 353; People v. Boscovitch, 20 Cal. 436; State v. Brookshire, 2 Ala. 303 ; 2 Phil. Ev. 5 Am. ed. 744; 1 Greenl, 482, § 432, note 1; Wharton Crim. Ev. § 446, notes 3, 4; 1 Bish. Crim. Pro. §§ 1188, 1193 ; Harris Crim. law, 354, note ; Laughlin v. State, 18 0hio, 99.
    As to admissibility of nncommunicated threats, — Whar. Or. Pl. and Pr. § 948; Little v. State, Tenn. Sup. Ct. Hor and T. 487; State v. Goodrich, 19 Ct. 116; State v. Sloan, 47 Mo. 604; Keener v. State, 18 Ga. 194; H. & T. 550; Zeller v. State, 2 Halst. 220; Riddle v. Brown, 20 Ala. 412 ; Dupree v. State, 33 Ala. 380; State v. Keene, 50 Mo. 357; Burns v. State, 49 Ala. 379; Pitman, v. State, 22 Ark. 354 ; Campbell v. People, 16 Ill. 17; H. & T. 282; State v. Dodson, 4 Oregon, 64; Holler v. State, 37 Ind. 57; Cluck v. State, 40 Ind. 263; People v. Arnold, 15 Cal. 476; Commonwealth v. Wilson, 1 Gray, 337; Turpin v. State, 2 Crim. Law Mag. 540 ; People v. Alivtre, 55 Cal. 263; Chandler v. Home, 2 M. & Rob. 423; Bell v. State, 44 Ala. 393 ; R. v. Wylde, 6 C. & P. 38 ; Whar. on Horn. 2 Ed. §§ 694, 695 ; Stokes v. People, 53 N. Y. 164; Collins v. State, 32 Iowa, 36; Cornelius v. Commonwealth, 15 B. Monr. 539 ; Papp v. Commonwealth, 14 Id. 615; Dupree v. State, 2 Ala. 380; Monroe v. State, 5 Georgia, 85; Howe v. State, Id. 48; Scoggins v. People, 37 Cal. 677:
    When a part of the transaction has been given in evidence by one party, the other may call out in cross examination, or show by witnesses of his own, the whole or any part of the rest. Starkie, Ev. P. 89 ; 1 Crim. Law Rep. 1241, 52, 625, 1248 : 1 Bish. Crim. Pro. 1083,1087; 2 Bouv. Law Diet. 467; Whar. Crim. Ev. 262, 269 ; 1 Green. Ev. § 108.
    Our claim here is, that if the threats made by the deceased against the defendant, just previous to the quarrel, were inadmissible, and therefore incompetent testimony, because such threats were not communicated to the defendant they are competent as a part of res gestee. Whart. Horn. § 695.

      George K. Hash, Attorney General, and Miller Outcalt, for the state:
    It was discretionary with the court to receive or exclude the testimony of defendant’s sister, who remained in court in disobedience of the order for the separation of witnesses. laughlin v. State, 18 Ohio, 99 ; .Wliart. Or. Ev. § 446; 30 Mo. 230 ; 4 Texas App. 645 ; 8 Ib. 427; 95 Ill. 394; 24 Miss. 602; 52 Ala. 296; 40 Ala. 684. Where defendant is to blame for disobedience, testimony excluded. 4 Mo. 214; 50 Ga. 585; 2 Phil. Ev. (5 Am. ed.) 742, n. 571. The declaration of Greaves was not admissible. Whart. Cr. Ev. § 757; 64 Mo. 358; 77 N. C. 473; 93 N. S. 365 ; 19 Ohio, 302, s. c., 1 Ohio St. 66.
   Okey, J.

Three questions are presented.

At the commencement of the trial, the court, on motion of the defendant, made a general order that the witnesses, as well for the defendant as the state, should be separated, and all the witnesses were directed to retire from the court room. The prosecuting attorney furnished to the sheriff a list of the witnesses for the state, but the counsel for the prisoner said none of his witnesses were then present. At that time a sister of the prisoner was sitting at his side in court, but no subpoena had been issued for her. After several witnesses had been examined in such sister’s presence, the state called as a witness Malvina Wagnej, • and the sister then retired from the court room and remained absent therefrom until called to testify, as hereinafter stated. Malvina testified that the defendant was present in a house adjoining the saloon in which the homicide was committed, at nine o’clock in the morning of the same Sunday, and then made a threat that he would kill Greaves that night. She had testified in the same way on the first trial. After the state had rested, the defendant called his father as a witness, who testified that the defendant was at the house of witness, several squares from the saloon and adjoining house, from early on that Sunday morning until five o’clock in the evening, and consequently could not have made such threat as stated by Malvina Wagner. The defendant then called his sister, above referred to, and stated That they had not expected to call her until, contrary to their expectation, Malvina Wagner was called; that they only desired to prove by her the same fact to which the defendant’s father had testified. The state objected to the testimony of such sister, on the ground that she had disobeyed the order as to the separation of witnesses, the court sustained the objection, and the defendant excepted. Subsequently, the mother and another sister of the defendant, and the defendant himself, testified to the same fact to which his father testified.

It is said, on behalf of the state, that Malvina Wagner was not believed, otherwise the defendant would have been convicted of murder, and hence the testimony of the excluded witness was immaterial and the fact that she was not permitted to testify affords no ground of reversal. But we do not take that view of the testimony of Malvina Wagner. While it tended to show malice and even deliberation, it also tended to show that the fatal blow was given by the defendant and not» by his brother, which was the principal contention on the trial. It does not necessarily follow because the conviction was of manslaughter, that the jury wholly disregarded the testimony of Malvina Wagner. Testimony, therefore, tending to show that her statement was untrue, tended to the acquittal of the defendant ; and notwithstanding four witnesses, the defendant included, testified to the same fact to which the excluded sister was called to testify, we are not prepared to say, under the-circumstances, that the testimony of the excluded sister should be regarded as merely cumulative, in the sense that the error in excluding her, if it was an error, afforded no ground for reversal; for the state endeavored to show, by cross examination as to character and otherwise, that the statements of the four witnesses were wholly unworthy of belief.

We are of opinion that the testimony of the excluded witness was important, in the sense that it was error to exclude it if she was competent, and that she was competent unless the court, in view of what is claimed to be disobedience of the order for the separation of witnesses, was vested with power to prevent her examination. But we think the court was vested with no discretion to exclude the witness on the facts disclosed in the 'record. We do not think it appears she remained in court by collusion with or encouragement of the defendant or bis counsel, or that she supposed she was in contempt of an order of court. Moreover, the important fact was whether she heard the testimony of her father, and we must say from the record she did not. Laughlin v. State, 18 Ohio, 99, is relied on as showing that the court is vested with discretion, in all eases where the order is not obeyed, to exclude the witness. There the witness was permitted to testify. The principal cases are cited by counsel and will appear in this report. Without attempting to reconcile them — that would be impossible — or to discuss them at length, I state as the result of our examination that this is the law : While the court is vested with discretion to refuse or permit the examination of a witness who has remained in court, by procurement or connivance of the party calling him, in violation of an order for the ■ separation of witnesses, it is vested with no such discretion to prevent such examination where there has been no such procurement or connivance; but the order is to be enforced by the officers in attendance, and disobedience of it punished as a contempt.

It is doubtful whether such concert was shown as would have justified the conviction of the defendant, unless he struck the fatal blow'; and hence it was important to determine the real matter in disptite, that is, whether such blow was given by the defendant or his brother George. It is not disputed that on the Sunday evening named, Greaves, between 7 and 8 o’clock, approached George Dickson, brother of defendant, and asked him why he had made a pass at him in the alley. After angry words, Greaves struck him, and instantly afterward the defendant struck Greaves and a fight ensued between them. During this difficulty Greaves received a wound in the temple inflicted with a knife or similar implement, which wound caused his death at three o’clock next morning. There was plain and irreconcilable conflict in the evidence upon the question whether this wound was inflicted by the defendant or his brother George. The defendant offered to show that a few seconds before approaching George Dickson, Greaves said to Tom Collins that he was about to have a difficulty with a fellow,” and he wanted Collins to stand by him. Objection being made, the court excluded the evidence, and the defendant excepted. We think the evidence was clearly competent. It was part of. the res gestee, and it tended to support the theory of the defense.

Sheridan having given .evidence tending to show that the defendant struck the blow which caused the death of Greaves, the counsel for defendant asked him, with a view to the contradiction of the witness, whether, at a time and place stated, he had not said to Stevens and Imwalle that it was George Dickson who had given the fatal blow. The witness admitted that he had a conversation with the persons named, at the time and place stated, but testified that he did not say to them that it was George Dickson who had given such blow. ■ The prosecuting attorney was then permitted, on reexamination of the witness, to show what he did say to those persons — that he said to them “ it was one of the Dixons.” As the exception of the defendant is rather to the form than the substance of the inquiry, we might be unwilling to reverse for the reason that such testimony was permitted to go to the jury; but the evidence was clearly incompetent. If the defendant had called Stevens and Imwalle to contradict Sheridan, then Sheridan might have been recalled to state what he said ; but until that was done the state could not prove such declarations. Judgment reversed.


author: MoIlvaine, J.

text:
    Miller v. Sullivan.
    Wliere an agent enters into a contract without disclosing his principal or agency, the principal, if he takes advantage of the contract, must do so subject to all the rights and equities, of which the other contracting party, who had no knowledge of the agency, might avail himself as against the agent, assuming the latter to be a principal.
    Error to the District Court of Hamilton county.
    The original action was brought by Milton II. Miller, in his lifetime, against J. L. Sullivan & Co., in the superior court of Cincinnati, to recover the value of 11 hogsheads of leaf tobacco, alleged by the plaintiff to have been his property, which defendants had sold and converted to their own use.
    The facts as found by the trial court are too voluminous to be transcribed here, but the following will be sufficient to an understanding of the opinion of this court.
    For a long time previous to September, 1868, one Robbins, who was a manufacturer of leaf tobacco, had been a heavy customer of J. L. Sullivan & Co., who were tobacco warehousemen and dealers in and auctioneers of leaf tobacco, at Covington, Kentucky. The mode of dealing was thus : All the.tobacco
    bid off by Robbins at the auction sales, was knocked down to him, by the auctioneer, as bought by Robbins, but by request of Robbins, made by him to the book-keeper of defendants, who kept the account of sales in the auction room, the tobacco was not all so entered in the books, some of it being entered in the name of Robbins, some in the name of Selfridge & May, some in the name of Saunders, and some in the name of Henry Queen, who was the book-keeper.
    In the summer of 1868, Robbins became embarrassed and got to be slow pay, and becoming .largely indebted to defendants, they refused to sell him any more tobacco unless satisfactory arrangements were made for payment. Thereupon it was agreed between Robbins and the defendants, that Robbins should continue to buy, and give his acceptances for his purchases, and that the defendants should retain the tobacco .in their possession, in their warehouse, as security for payment, until payment was made.
    This arrangement was made about the month of August, 1868, and, at the time it was made, Robbins was indebted to the defendants to the extent of six or seven thousand dollars for purchases previously made, and the defendants still had, of those purchases, a large amount of tobacco in their warehouse, which, under the agreement, was to remain in their possession, as well as subsequent purchases, as security for payment by Robbins, of his indebtedness then existing and thereafter to arise.
    It was the practice, both before and after the agreement last above mentioned, to enter tlie sales made to Eobbins upon the books of defendant in the name suggested by Eobbins to the book-keeper, for the reason, as stated by Eobbins, that lie did not want other deal el’s to know how much tobacco he was buying ■
    This request of Eobbins to have his purchases so entered in the sales-book, and the compliance therewith by their bookkeeper, were unknown to the defendants until after the tobacco here in controversy had been purchased, when it was discovered by the defendants, and immediately stopped, as will be hereinafter shown.
    The bills and tickets for the tobacco, bought by Eobbins, were made out from and according to the entries made in the auction sales-book, and therefore in the different names shown by that book to have been purchasers, but all these tickets and bills were given to Eobbins.
    About September 1, 1868, while this state of affairs was existing, and this course of dealing was going on, between Eobbins and the defendants, the plaintiff in this case, being acquainted with Eobbins, asked his advice as to the investment he desired to make, and Eobbins advised him to invest his money in leaf tobacco. Miller had no knowledge of or experience.in the tobacco business, but, having confidence in Eobbins, accepted his advice, and, thereupon they agreed that Eobbins should buy leaf tobacco for Miller, on speculation, Miller furnishing the money and keeping control of the tobacco. The tobacco was to be held until they should think it profitable to sell. Eobbins was to have no right to sell without Miller’s consent, and Miller was to rely on Bobbins’ judgment and experience in buying and selling. The profits were to be equally divided. Nothing was said about losses, but it was agreed that in case they should not be able to sell for what they paid, Eobbins was to work up the tobacco in his factory, and allow Miller the cost, so that he should not suffer any loss.
    Miller bad no knowledge of the condition of affairs existing between Eobbins and the defendants, and knew nothing about the entry of names, other than Eobbins, as purchasers of tobacco bought by him in the books of defendants, and the making out in pursuance thereof of tickets and bills in accordance therewith.
    Subsequent to this agreement with Miller, Robbins bid off at defendant’s auction sales at different times, forty-three hogsheads of tobacco in the aggregate, and had them entered in defendants’ books in the name of Miller, took bills of sale and unsigned tickets for delivery in Miller’s name, gave his own acceptances for the purchase money and had the bills marked “paid,” left the tobacco in defendant’s warehouse as security for his indebtedness to defendants as per agreement, and delivered the bills and tickets to Miller.
    The bills and tickets for all the tobacco, except seventeen hogsheads, were afterwards returned by Miller to Robbins, who, upon payment of all his acceptances given on account of the forty-three hogsheads, removed from the warehouse all the tobacco except the seventeen bogheads, which were left in defendants’ possession as security for other indebtedness, in accordance with the previous agreement.
    Miller, upon receipt of the bills and tickets from Robbins, paid the amount thereof to him, and upon the return of the bills and tickets charged Robbins with the amount of the same. No part, however, of the money paid by Miller to Robbins was used in payment of Robbins’ indebtedness to defendants.
    After Robbins’ purchases had been entered in the name of Miller, it first came to the actual knowledge of the defendants, that Robbins had procured any purchase made by him to be entered upon their books in any other name than his own. Thereupon, J. L. Sullivan, a member of the firm, called upon Robbins for an explanation, and was informed by him that the names so entered as purchasers were merely “ men of straw ” and that his only purpose in having such names entered on the books as purchasers, was to mislead other dealers as to the amount of his purchases. The defendants, thereupon, immediately stopped the practice and caused the entries upon the books to be changed so as to show the purchaser to have been Robbins, in accordance with the understanding of the book-keeper at the time the entries were made.
    Neither, any member of the firm of J. L. Sullivan & Co., nor any of their clerks ever knew, or heard of M. H. Miller,' outside of these transactions, until subsequently, when the defendants notified Robbins, that in default of payment, they would sell the tobacco ; he then told them, who M. II. Miller was, and that he held the bills and tickets for part of the tobacco.
    Defendants sold the seventeen hogsheads of tobacco, but the proceeds were insufficient to satisfy their claim against Robbins, who then was, and ever since has remained, insolvent.
    The foregoing facts control the case. The superior court rendered judgment for defendants and the judgment of that court was affirmed by the district court.

      Hagans & Broad/well, for plaintiff in error :
    1. The claim of defendants that they supposed Miller was only a “ man of straw,” that Robbins was the real purchaser, as Robbins had been in the habit of purchasing of them in fictitious names, amounts, we think, to no defense at all. The giving of the name of Miller to the defendants as purchaser was, if not actual notice, sufficient to put them, on inquiry; and they violated the law if the real nature of the transaction had been as they say they supposed or believed it to have been, and subjected themselves to heavy penalties for so doing. 15 U. S. Stat. at Large, 151-158.
    The case presents the plain question of an estoppel in pais, 26 Ohio St. 639; Story on Agency § 433; Dalzell v. Odell, 3 Hill, 219 ; Wank v. Jenkins, 52 Ohio St. 567 ; Packard v. Sears, 6 A. & E. 469; Hack v. Kemball, 16 Me. 146; Stroble v. Smith, 8 Watts, 280 ; Smith v. Warder, 7 Harris, 424; Procter v. Keith, 12 B. Mon. 252; Pickering v. Bast, 15 East, 38; Dyer v. Pearson, 3 B. & C. 38; Am. Law Reg. May, 1870, 315, 316; Brown v. Bank, 30 Md. 39; Wyatt v. Marquis of Hertford, 3 East, 147; Muldon v. Whitlock, 1 Cow. 290; Heald v. Kenworthy, 10 Ex. 739; Beardsley v. Foot, 14 Ohio St. 414; Nye v. Denny, 18 Ohio St. 247.
    3. On the findings of fact by the court, the defendants had actual notice of Miller’s prineipalship and Robbins’ agency. 2 Bouv. L. Die. 236; 1 Story’s Eq. Jur. § 399; Wade on Notice, §§ 3, 5, eb seq.

    4. There was sufficient circumstantial evidence to put defendants on inquiry. Whitbread v. Jordan, 1 Y. & C. Ex. 303 ; Hankinson v. Barbour, 29 Ills. 80; Lewes v. Bradford, 10 Watts, 67; Williamson v. Brown, 15 N. Y. 354; Fiske v. Porter, 39 N. Y. 70; Wade on Notice, 88 et seq.

    Dealing with Robbins as they did, and putting it in his power to induce Miller to part with his money on the faith of the receipted invoices and delivery tickets, they are chargeable with notice of Robbins’ agency, and must abide the consequences of their carelessness or negligence. They must be held to have been advised that these purchases in’ the name of Miller were bona fide purchases for Miller. They did this deliberately and purposely, and they are now estopped from claiming that Miller must bear the loss.

      H. G. Whitman, for defendants in error:
    I. If the relation of principal and agent existed between Miller and Robbins, Miller was an undisclosed principal, and as such, was bound by the agent Robbins. Rabone v. Williams, 7 T. R. 360; Story on Agency, 8th edition, §§ 390, 404, 420; 1 Parsons, 62, 63, and cases cited, note A; George v. Claggett, 7 Durnford & East (T. R.) 359; Locke v. Lewis, 124 Mass. 7; Warren v. McKay, 1 Meeson & Welby, 591; Harrison v. Roscoe, 15 Meeson & Welby, 231; Violet v. Powell, 10 Ben Monroe, 349; Huntington v. Knox, 7 Cushing, 371 ; Miller v. Sullivan, 26 Ohio St. 641.
    2. There was no estoppel in pais. 6 Hill N. Y. 534; 7 Ohio St. 105 ; 10 Penn. 531; 14 Ohio St. 119; 18 Ohio St. 42; Id. 254 ; 2 Parsons on Contracts, 793-801.
    3. But it is claimed by plaintiff that the defendants are estopped by the tickets and the receipted bills for the purchases of September 1 and 16, given to Robbins, and by him to Miller, and that Miller had a right to rely on them, in bar ,of defendant’s claim on Robbins. But this is not so. There is no estoppel from them to prevent the defendants from explaining them. All the cases show they (the bills) are such papers as may be explained. 4 Ohio, 341, 347; 6 Ohio, 248; 19 Ohio St. 419; 2 Parsons Cont. 555; 4 Harris & J. 355; 5 Johns. (N. Y.) 309 ; 7 Id. 311; 9 Id. 309 ; Ohio Code, § 3G; as amended, § 1, 75 Ohio L. 605.
   MoIlvaine, J.

We think the judgments of the courts below were right.

The transactions upon which the plaintiff bases his claim against defendants were conducted exclusively by Robbins as agent for plaintiff. If the relation between plaintiff and Robbins was not disclosed to defendants, the law is, that the plaintiff must take the contract subject to all the rights and equities of which the defendants might avail themselves against Robbins if ho were in fact principal. If Robbins had been a principal in the transactions, the right of defendants to sell the tobacco to satisfy their claim against him would not be questioned.

Robbins at the time of making the purchases assumed the character of a principal, an attitude wholly inconsistent with that of agent for either a known or an unknown principal. His purchases were made subject to a condition previously agreed upon by and between the parties, that the tobacco purchased should remain in possession of the vendors as security for acceptances given for the purchase-money and other indebtedness from the purchaser to the vendors. True, the sales were entered in defendant’s books as made to M. II. Miller. So procured to be made by Robbins upon representations to the bookkeeper that the names of purchasers to be substituted for his own were illusory. Such had been the previous practice, unknown indeed, to defendants, but corrected as soon as discovered. To the minds of defendants, charging them with the knowledge of their bookkeeper, these names represented “men of straw.” For this state of things plaintiff’s agent was responsible. Neither the defendants nor any of their clerks had ever heard of plaintiff as a reality. No laches can be attributed to them, sis they acted upon the best information which under the circumstances could be supposed to exist.

It is contended, however, that by dealing with Robbins as they did, by placing in his hands bills of sale in Miller’s name indorsed “ paid,” whereby Miller was induced to part with his money, the defendants are estopped from denying the agency of Robbins and that Miller was his principal.

When this case was before this court, as reported in 26 Ohio St. 639, it was held that a vendor of property to a known agent by receipting the purchase money, whereby the principal was induced to pay the amount to the agent, is estopped from denying the truth of the receipt, as against such principal, but it was also intimated that no estoppel would arise where the fact of agency was unknown to the vendor. And we now think that the delivery to Robbins of the bills in the name of Miller marked “paid” does not, under the circumstances amount to any proof of knowledge on the part of the defendants of the relation of principal and agent between the plaintiff and Robbins.

It is also contended that jAiintiffs’ case is strengthened by the fact that the internal revenue 'laws, in force at the time, required all sales of tobacco under like circumstances, to be entered in the books of the vendor in the real name of the purchaser, under penalties. The claim is that Miller had a right to assume from the form of the bills of sale that he was known to the defendants as the purchaser in fact.

It may be that defendants were technically guilty of a violation of the act of Congress, but whether they rvere or not the act of Congress does not constitute’a muniment of plaintiff’s title to the tobacco. His title, as against the defendants, must rest on the fact that Robbins was his agent and that defendant knew that fact, or had knowledge of such facts as put them upon inquiry, and were guilty of negligence in not making such inquiry. Upon these questions the court below found against the plaintiff.

The evidence is not set forth in the record, but a statement of primary facts as found by the superior court is set forth, and we think the ultimate fact which was in issue between the parties was properly deduced from the statement in the record. namely, that the relation of principal and agent as between the plaintiff and Robbins was not disclosed to the defendants.

Judgment affirmed.