author: Summers, J.

text:
    Blake v. The Hamilton Dime Savings Bank Company.

      Certification of check by bank — Effect-—Equivalent to acceptance— Transfer is assignment of money — Drawer or indorser cannot stop payment — -Bank receives check for deposit — Bona fide holder — Although it has notice check was obtained by fraud.

    1. The certificate by a bank that a check is good is equivalent to acceptance, and raises an implication that it is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment.
    2. The transfer of a certified check is an assignment of money to meet it and the bank making the' certification is liable therefor to the holder.
    3. The object of certifying a check is to enable a holder to use it as money. The drawer or endorser of a certified check cannot, after its delivery, revoke it or stop payment upon it by notice to the drawee not to pay, and a bank that has received a *■ certified check for deposit and has credited the depositor with the amount of it, is a bona Me holder and may enforce payment of it notwithstanding it may, before payment to the depositor, have received notice that the check was fraudulently obtained by the depositor.
    (No. 10598
    Decided December 22, 1908.)
    Error to the Circuit Court of Hamilton county.
    The facts are stated in the opinion.

      Messrs. Burch & Johnson, for plaintiff in error.
    The mere credit of a check upon the books of a bank, which may be canceled at any time, does not make the bank the bona fide purchaser for value. If after such credit, and before payment for value, upon the faith thereof, the holder receives notice of the invalidity of the check, he can not become a bona fide holder by subsequent payment. Daniels on Negotiable Instruments (5 ed.), Section 1652; Thompson v. Bank, 150 U. S., 231.
    The mere discounting of paper and placing the amount thereof to the credit of a depositor, who already has a large ■ balance to his credit, does not make the bank a purchaser for value so as to protect it against infirmities in the paper. Entering the amount of the discount to the credit of the depositor simply - creates the relation between the bank and the depositor of debtor and creditor, and so long as that relation remains, and the deposit is not drawn out, the bank has simply promised to pay the depositor, has parted with no value, and is not entitled to the protection of a bona fide holder of paper. Mann v. Bank, 30 Kans., 412; Bank v. Valentine, 18 Hun, 417; Bank v. Newell, 71 Wis., 309.

      Receiving a certified check of another bank, and crediting it to the account of a depositor upon his endorsement thereof, does not make the receiving bank a purchaser for value, the relation between the depositor and bank being that of debtor and creditor, and the bank gets only such title therein as its depositor had. Blake v. Bank, 29 C. C., 465, 9 C. C. N. S., 196.
    It is also true that it was never intended, after Blake indorsed the check and delivered it to one having, in law and good morals, a right to retain it, that he, Blake, should have any further interest in it; but it has always been, and is still the law, that a vendee who has been defrauded by a vendor of anything, be it a certified check, money or merchandise, may reclaim and again obtain possession of that of which he has been defrauded, either from such vendor or from one who, having notice, has without value received same from such vendor. Refining Co. v. Fancher, 145 N. Y. 552; Bank v. Rheinstrom, 4 N. P. 20; Knatchbull v. Hallett, 13 Ch. Div., 696.

      Messrs. Pogue & Pogue and Messrs. Murphy & Williams, for defendant in error.
    When a check is certified the fund is transferred immediately to the payee or his assigns and no one has any claim upon the fund except the owner and holder, free from any claim of the drawer.
    As heretofore stated under the previous proposition we desire to draw the court’s attention to the marked distinction between a certified check and all other classes of checks and bills of exchanges. Bank v. Bank, 77 U. S., 647.
    Our conclusions as to the legal effect are supported by authorities of great weight. Bank v. Bank, 77 U. S., 604; Willets v. Bank, 2 Duer, 121; Barnet v. Smith, 10 Foster (N. H.), 256; Meads v. Bank, 25 N. Y., 146; Bank v. Bank, 14 N. Y., 624; Bank v. Bank, 4 Duer, 219; Brown v. Leckie, 43 Ill., 497; Bank v. Bank, 39 Pa. St., 92; Bickford v. Bank, 42 Ill., 238.
    It is within the power of the bank to render itself liable to the holder and payee of the check. This it may do by a formal acceptance written upon the check, in which case it stands to the holder in the position of a drawer and acceptor of a bill of exchange. Bank v. Bank, 77 U. S., 604; Espy v. Bank, 18 Wall., 604.
    It may accomplish the same result by writing upon it the word “good” or any similar words which indicate a statement by it that the drawer has funds in a bank applicable to the payment of the check, and that it will so apply them. Cooke v. Bank, 52 N. Y., 96. And such certificate, it is said, discharges the drawer. As to him it amounts to a payment. Bank v. Leach, 52 N. Y., 350; Meads v. Bank, 25 N. Y., 143; Willets v. Bank, 2 Duer, 121; Mussey v. Bank, 9 Metc., 311.
    Whether this certificate be obtained by the drawer before the check is delivered, and is thus made an inducement to the payee to receive the same, or whether it is made upon the application of the payee for his security, is of no importance. It is a contract recognized by the law valid in its character, which essentially changes the position of the parties. The privity of contract with the drawee, which before pertained to the drawer alone, is now imparted to the payee, and the duty which before existed only to the drawer now exists to the payee. First National Bank v. Whitman, 194 U. S., 343; Daniel on Negotiable' Instruments, Section 1603.
    Blake had no right in law to stop the payment on the' check. The bank acquired the check by purchase without the slightest knowledge of any claim by Blake against Werbel. Werbel is not a party to the suit, and they never attempted to make him a party to the suit. If Blake has any claim against Werbel, let him sue Werbel, but he can not in law stop the payment on this check. Bank v. Bank, 10 Wall., 648.
   Summers, J.

The action was brought by the defendant in error, The Hamilton Dime Savings Bank Company, of Hamilton, Ohio, against the Franklin Bank, of Cincinnati, Ohio, upon a check drawn by C. G. Blake & Co. upon the Franklin Bank for two hundred and seventy-five dollars, payable to the order of C. G. Blake, and certified by the Franklin Bank to be good, and endorsed by C. G. Blake and Charles Werbel.

On Friday, October 16, 1903, Blake bought a horse from Werbel and endorsed the check to the order of Werbel and delivered it to him in payment for the horse-. The endorsement of certification was as follows: “Good for $275.00 when properly endorsed. The Franklin Bank, H. Sachteleben, Teller.” Werbel endorsed the check, and on the following'Monday, October the 20th, deposited it to his account with The Hamilton. Dime Savings Bank Company, and was given credit therefor on the books of the bank. The Hamilton Dime Savings Bank Company sent the check to the Atlas National Bank, of Cincinnati, for collection and it was protested for non-payment for the reason “Payment stopped.” Thereupon, on November 19, 1903, the defendant in error sued the Franklin Bank on the check, and the Franklin Bank, under Section 5016, Revised Statutes, filed a motion for an order of interpleader, which was granted, the amount of the check with interest was paid into court and C. G. Blake was substituted as defendant. Blake filed an answer averring that he had been induced to purchase the horse and to deliver the check in payment therefor by the false and fraudulent representations of Werbel, that Werbel is the owner of the check, that the plaintiff, The Hamilton Dime Savings Bank Company, received the check only as collecting agent for Werbel and with knowledge that Werbel had been notified that payment on the check would be stopped. A jury was waived and the court stated its findings of fact separately from its conclusions of law. Judgment was given for the bank for the amount paid into court, less costs to the date of that payment. The court found that The PTamilton Dime Savings Bank Company was the purchaser of the check for value and before notice and without knowledge of Blake’s claim. On error the circuit court affirmed the judgment, not, however, on the ground that the bank was entitled to the protection afforded to bona fide purchasers, the court stating in its opinion, as a matter of law, that the savings bank was not a purchaser for value, but that the transaction was the ordinary and usual one of a deposit by a depositor and not a purchase of the check for value by the bank.

At- the time the bank received notice of the claim of Blake it had on deposit to the credit of Werbel a. sum in excess of the amount of the check

No question is made as to the authority of the teller of the bank to bind the bank by the certi-i fication of the check.

The circuit court affirmed the judgment on the ground that “Werbel became the absolute owner of the check free from the claim of Blake to the same extent as if it had been money. 2 Daniel on Negotiable Instruments, Section 1601; Morse on Banks and Banking, Section 414.”

The circuit court was right in its opinion that the Hamilton Bank was not a purchaser of the check.

In the absence of special agreement the deposit in bank to his credit of an uncertified check by the holder, whether drawn on that bank or another, is deemed to be for collection and not for payment, and if there be no funds to meet it or if it be returned dishonored the deposit bank may return it to the depositor and cancel the credit. Daniel on Negotiable Instruments, Section 1623; Morse on Banks and Banking, 320 and 321; National Gold Bank & Trust Co. v. McDonald, 51 Cal., 64. And in such case if the bank receives notice of the invaliditv of the check it cannot become a bona fide holder by subsequent payment. “The mere discounting of paper and placing the amount thereof to the credit of a <Je“ positor, who already has a large balance to his credit, does not make the bank a purchaser for value so as to protect it against infirmities in the paper. Entering the amount of the discount to the credit of the depositor simply creates the relation between the bank and the depositor of debtor and creditor, and so long as that relation remains, and the deposit is not drawn out, the bank has simply promised to pay the depositor, has parted with no value, and is not entitled to the protection of a bona fide holder of paper.” Mann v. National Bank, 30 Kans., 412. “The mere credit of a check upon the books of a bank, which may be canceled at any time, does not make the bank the bona fide purchaser for value. If after such credit, and before payment for value, upon the faith thereof, the holder receives notice of the invalidity of the check, he can not become a bona fide holder by subsequent payment.” Daniel, Negotiable Instruments (5th ed.), Section 1652 Central National Bank v. Valentine, 18 Hun, 417; Manufacturers’ National Bank v. Newell. 71 Wis., 309.

The Hamilton Bank, therefore, upon the evidence, was not a purchaser of the check, or entitled to the protection of a bona fide holder of the paper, unless it is so entitled by reason of the fact that the check was certified.

In this state a bank check for part of the sum due the drawer, does not, before acceptance by the drawee, constitute an equitable assignment of the amount for which it is drawn, (Covert v. Rhodes, 48 Ohio St., 66) and the holder can not maintain an action against the bank for the amount of the check, although it has funds to the credit of the drawer sufficient to meet it, (C. H. & D. R. R. Co. v. Bank, 54 Ohio St., 60.).

This is now made the law by statute. Section 3177v, Revised Statutes, provides: “A check is a -bill of exchange drawn on a bank payable on demand.” And Section 3177.2 is as follows : “A check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder unless and until it accepts or certifies the check.”

But this is a certified check. Mr. Daniel says (Section 1602) that the certification of checks is an expedient and outgrowth of modern commerce quite recent in its origin, but now of daily and extensive occurrence. And in Merchants’ National Bank of Boston v. State National Bank of Boston, 10 Wall., 604, decided in 1871, Mr. Justice Swayne says in the opinion that “it is computed by a competent authority that the average daily amount of such checks in use in the city of New York, throughout the year, is not less than $100,000,000,” and that “we could hardly inflict a severer blow upon the commerce and business of the country than by throwing a doubt upon their validity.”

And speaking of their legal effect he says:

“By the law merchant of this country, the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is good then and shall continue good, and this agreement is as binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the depositor, or any other obligation it can assume. The object of certifying a check, as regards both parties, is to enable the holder to use it as money. The transferee takes it with the same readiness and sense of security that he would take the notes of the bank. It is available also to him for all the purposes of money. Thus it continues to perform its important functions until in the course of business it goes back to the bank for redemption and is extinguished by payment.

“It can not be doubted that the certifying bank intended these consequences, and it is liable accordingly. To hold otherwise would render these important securities only a snare and delusion.

“A bank incurs no greater risk in certifying a check than in giving a certificate of deposit. In well-regulated banks the practice is at once to charge the check to the account 'of the drawer, to credit it in ‘certified check account/ and when the check is paid, to debit that account with the amount. Nothing can be simpler or safer than this process.

“The practice of certifying checks has grown out of the business needs of the country. They enable the holder to keep or convey the amount specified with safety. They enable persons not well acquainted to deal promptly with each'other, and they avoid the delay and risks of receiving, counting and passing from hand to hand large sums of money.”

Daniel, Section 1603, says that when the check is certified the bank becomes at once the principal debtor, and that when the holder procures the bank to certify the check “in contemplation and by operation of law, it is the same as if the funds had been actually paid out by the bank to the holder, by him redeposited to his own credit, and a certificate of deposit issued to him therefor. In other words, a certified check is a short-hand certificate of deposit in favor of the holder, and payable to him, or to him or order, or to bearer, according to- its terms.” Again he says: “It will be too late after the bank has certified' the check for the drawer to revoke it, and the bank will be bound to pay it though notified by the drawer not to do so.” And again he says, in Section 1605, that “the check when certified circulates as the representative of so much cash in bank, payable whenever demanded, to the holder. It is then like cash, but still it is not the same as cash, for ‘nullus simile est idem.’ ”

The drawer by delivery of a certified check, in the absence of special agreement, is not discharged from liability^-, the only effect of the certification being to add the credit of the bank to that of the drawer (Daniel on Negotiable Instruments, Section 1626; Oyster & Fish Co. v. Bank, 51 Ohio St., 106), and the same is true as to a holder who procures the check to be certified before delivery. He is a new drawer and will be held liable as well as the bank. If, after delivery, the holder procures a check to be certified, the drawers and endorsers are thereby discharged. Daniel on Negotiable Instruments, Section 1601a; Revised Statutes, Section 3177y. In this case the payee, Blake, procured the certification of the check after delivery to him and before delivery by him to Werbel, thereby discharging Blake & Company, the drawers, and making himself as well as the bank liable on the check. Section 3177 x, Revised Statutes, provides that where a' check is certified by the bank on which it is drawn the certification is equivalent to an acceptance, and under Section 3177z, Revised Statutes, by necessary implication, the certification operates as an assignment of the funds to meet the check and makes the bank liable to the holder.

What then are the rights of the parties? If Blake had given Werbel money instead of the check, and Werbel had deposited the money to his credit in the Hamilton Bank the relation of debtor and creditor between the bank and Werbel would thereby have been created. In C. H. & D. R. R. Co. v. Bank, 54 Ohio St., 60, 71, supra, it is .said by Spear, J.: “The relation of bank and general depositor is simply the ordinary one of debtor and creditor, not of agent and principal, or trustee and cestui que trust.” And again: “The deposits become the absolute property of the bank, impressed with no trust, and the bank’s right to use the money for its own benefit is immediate and continuous.” The money would belong to the bank and Blake could not acquire any interest in it or impose any liability on the bank merely by notifying it that Werbel had obtained the money from him by defrauding him in a horse trade. If, instead of money, Blake had traded a piano to Werbel for the horse, it may be that Blake could repudiate the trade on the ground of fraud and that after tender back of the horse the title to the piano would reinvest in him and that he could then recover it from any one excepting a bona fide purchaser. But money loses its identity, arid if the relation of debtor and creditor between the bank and Werbel would arise upon the deposit of the money, then the bank would necessarily be treated as a bona fide purchaser and title to the money would not be restored to Blake even by a repudiation of the trade and a tender back of the horse. Now, while it is true, as has been pointed out, that the delivery of the check was not payment for the horse and that Blake was liable on the check, still if certified checks are to circulate as money and to perform the tiseful purpose in trade they have heretofore, the deposit of them in bank to the credit of the holder must be, so far as the rights of the endorser are concerned, treated as a deposit of money. The transaction- under consideration may serve in some slight measure to illustrate their use. Blake may have supposed that Werbel would want cash for the horse and would not accept his check, and, not wishing to carry the money from Cincinnati to Hamilton, he procured the certification of the check, and Blake accepted it as readily as he would have accepted cash. But, if he could not accept it with the same security that he could cash, then, under such circumstances, a certified check could not be used at all, or the endorsee of such a check, if he wishes to avoid embarrassment and delays, such as have resulted in this case, must at once present the check for payment and then deposit the money instead of the check in bank. This being so, then the obligation of the Franklin Bank to pay the check was not affected by the notice to it by Blake not to pay, and the right of the Hamilton Bank to enforce payment was not affected by notice of Blake's claim.

Some question is made as to the right to an order of interpleader in such a case as this, but in view of the conclusion reached it is not necessary to consider it. And it may be added, that even if the certified check were not treated as money but as property Blake had given Werbel for the horse, Blake cpuld neither recover it nor defend against payment of it in a suit upon it, in the absence of a showing that he had repudiated the trade and had tendered the horse to Werbel, which was not done in this case, nor was Werbel made a party to the action. Morrison v. Eaton, Tappan, 173; Manhattan Life Ins. Co. v. Burke, 69 Ohio St., 294; Archer v. Bamford, 3 Stark., 175; Lewis v. Cosgrave, 2 Taunt., 2; Heaton v. Knowlton et al., Admrs., 53 Ind., 357; Grubbs et al v. Barber, 102 Ind., 131.

The judgment is

Affirmed.

Price, C. J., Shauck, Crew' and Spear, JJ., concur.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    McGill v. The Cleveland & South-Western Traction Company.

      Rule that where master directs servant — To continue use of defective tool — Relieves servant of risk — Does not apply to tool of simple construction, when — Law. of respondeat superior— Servant injured by defective step-ladder.

    1. The rule that a direction by the master to continue the use of a defective instrument or tool, coupled with a promise to replace it with one not defective, relieves the servant from the doctrine of assumed risk if injured during such continued use and because of the defect, does not apply to cases of ordinary labor with a tool of simple construction with which the servant is entirely familiar, and which he understands and comprehends as fully as the master.
    2. Where an employe whose duties require him to use an ordinary step-ladder, discovers and appreciates that the step-ladder has become and is defective, dangerous and “unfit for him to use in connection with his said work,” and he notifies the master, who promises to furnish another, but before doing so the employe in using such defective step-ladder is injured, the master under such circumstances is not liable
    (No. 11088
    Decided December 22, 1908.)
    Error to the Circuit Court of Lorain county.
    On January 31, 1907, the plaintiff in error, David B. McGill, commenced an action in the Court of Common Pleas of Lorain county, Ohio, against the defendant in error, The Cleveland & South-Western Traction Company, to recover damages for personal injuries received by him on October 23, 1906, while in the employ of said defendant company. The petition filed by him, omitting caption and verification, was in the words and figures following:
    “Now comes the plaintiff, David B. McGill, and says that the defendant, The Cleveland & SouthWestern Traction Company, is now and was on the 23d day of October, 1906, a corporation duly organized under the laws of the State of Ohio, and as such corporation owned, operated and controlled a line of electric railway extending from the City of Cleveland, in the County of Cuyahoga, to the Village of Wellington, County of Lorain, and elsewhere.
    “That in said Village of Wellington at said time, near the Public Square, defendant maintained a certain side-track and other equipment used by the defendant in the operation and maintenance of its said line of railway.
    “Avers that on and prior to the 23d day of October, 1906, plaintiff was in the employ of the defendant company in the capacity of helper to one Mike Gibbons, who was then in the employ of the defendant company in Wellington, Ohio, as car inspector.
    “Plaintiff avers that he controlled no person and was subject to the orders, direction and control of his said foreman or boss, Mike Gibbons.
    “Avers that at said time, defendant maintained as aforesaid, a certain side-track along the main street in said Village of Wellington, where the defendant placed certain of its cars from time to time to be inspected, repaired and cleaned. Avers that it was plaintiffs duty among other things, at said time, to assist, under the direction of said boss, or foreman, in cleaning, washing and repairing the cars of defendant company. That it became and was necessary in cleaning and washing said cars of defendant company, and particularly the windows and window-frames on the outside of said cars, for this plaintiff to use a certain stepladder about seven feet high, said ladder being furnished by defendant company for that purpose in the performance of his work.
    “Avers that some days prior to the 23d day of October, 1906, plaintiff discovered that said ladder which defendant had furnished him to be used while performing his duties, as aforesaid, had become old, worn and defective to such an extent that the same was unfit for plaintiff to use in connection with his said work, in that the steps, of said ladder were loose and worn and the iron braces holding said steps to the side pieces of said ladder were loose, broken and defective. .
    “Avers that a few days prior to the 23d day of October, 1906, this plaintiff complained to his said foreman, Mike Gibbons, of the defective and dangerous condition of said ladder, and plaintiff avers that said defendant through its foreman assured and promised plaintiff that he would have said ladder repaired with a new, proper and sufficient ■one, so that plaintiff could safely perform his work.
    “Plaintiff avers that about a week or ten days prior to the 23d day of October, 1906, he further complained to the master mechanic of defendant company, Fred Strail, of the defective and dangerous condition of said ladder, and that said master mechanic then and there promised and assured plaintiff that he would be furnished with a new, sufficient and proper ladder with which to perform his work as soon as the same could be made, and that he should u«e said ladder until a new ladder was furnished. • That plaintiff relied upon defendant’s fulfilling its said promises and assurance, and he continued to perform his labor as directed by said foreman, Mike Gibbons, until the 23d day of October, 1906, when plaintiff was injured in the direct line of his duty and without fault or negligence upon his part, as hereinafter set forth.
    “Plaintiff avers that on said 23d day of October; 1906, he was ordered by defendant’s foreman, Mike Gibbons, to clean the windows on the outside of the vestibule on the west end of one of defendant’s cars placed on said side-track in said village, and in order to properly perform his work it became and was necessary for plaintiff to use said ladder furnished by the defendant company, and that while attempting so to do, the steps of said ladder and braces thereof gave way, by reason of its old, defective and dangerous condition, and plaintiff was thrown upon and across the bumper on the west end of said car, and was precipitated to the fender of said car, bruising plaintiff and inflicting serious and permanent injuries as hereinafter set forth.
    “Plaintiff avers that the defendant was guilty of negligence and carelessness in permitting and allowing said ladder to be and remain in said defective, worn out and dangerous condition, and in ordering said plaintiff to work with the same at said time. That the defendant was guilty of carelessness and negligence in not furnishing plaintiff with a new, proper and sufficient ladder, in accordance with the promises and assurance of defendant.
    “Plaintiff avers that his injuries were caused solely by reason of the fault and negligence of the defendant, as aforesaid, and without any fault or negligence upon his part. That by reason of the negligence of the defendant aforesaid, plaintiff was thrown upon the iron bumper of said car, thereby suffering a fracture of two ribs on his right side; that his right arm and shoulder were severely sprained and bruised; that he is unable to use said right arm and shoulder as he formerly did and he believes he never will have the proper use of said arm and shoulder. Avers that the same gives him constant pain; that he sustained a severe injury to his head and neck; that his head causes him constant pain and that he suffers from dizziness; that he received a >severe bruise to his right hip; that he further received a severe injury and shock to his entire nervous system; that he suffers from sleeplessness as a result of the injurv to his head. Avers that by reason of the fracture of the ribs on his right side his right lung has become affected, the exact nature and extent of which plaintiff is unable at this time to determine. That he was confined to his bed for a period of about two weeks; that prior to said injury he was able to perform and did perform manual labor; that since said'injury, he has not been able to perform any manual labor and believes he will be incapacitated from performing the same as he formerly did. Avers tljat his injuries are permanent, all of his damage in the sum of ten thousand dollars.
    “Wherefore plaintiff prays judgment against said defendant for his damages so sustained, as aforesaid, in the sum of $10,000.00.”
    A general demurrer to this petition was sustained by the court of common pleas, and the plaintiff not desiring to amend or to further plead, his petition was dismissed and judgment rendered against him for costs. On error this judgment was affirmed by the circuit court. A reversal of both of said judgments is here asked by the plaintiff in error.

      Messrs. Skiles, Green & Skiles and Messrs. Stroup & Fauver, for plaintiff in error.
    There certainly can be no contention but that the rule laid' down in the case of Manufacturing Co. v. Morrissey, 40 Ohio St., 148, is the law of Ohio.
    In the opinion of the court in the above case, the court refers to the rule recognized in the English courts and the rule as laid down by the Supreme Court of the United States in the case of Hough v. Railway Co., 100 U. S., 213.
    The general rule as laid down by Cooley on Torts is quoted both in the Ohio case and in the United States Supreme Court case.
    The question raised by the defendant company-in the case at bar is that this is one of the cases wherein this rule does not apply, and the defendant .bases its argument upon the ground that the servant was as familiar with the defective and dangerous condition of the ladder as was the master, and that in the case of a defect of ladder or some other simple instrumentality, the servant assumes all the risks 'incident thereto if he uses the same. That notwithstanding the master may assure the servant, as the petition alleges in this case, and may promise the servant that a new ladder will be given him, and agreeing to and ordering that he use this ladder until such time, yet in this case the general doctrine does not apply.
    So far as we can ascertain this court has not passed upon that question. Some states hold that where the instrument is a simple one and where the servant appreciates the danger and it is obvious, and the servant has as much knowledge as the master has, that the promise amounts to nothing and that it should be abrogated. Other states hold the contrary doctrine. So that a discussion among the different courts on this question has been carried on, one holding one way and one court another. To cite the different courts and their holdings and to ascertain where the greater weight of authority rests would, in our opinion, be unnecessary. We desire, however, to cite some of. the opinions of the leading judges, and call the court’s attention to the case of Narramore v. Railway Co., 96 Fed. Rep., 298.
    Upon what theory or upon what principle. can it be said that the piaster can be relieved from his liability to the servant under these conditions? The only theory that can be urged is that the servant appreciated the danger the same as the master appreciated it and that he had knowledge of it because he called his master’s attention to it. The very fact that he called the master’s attention to it was for the purpose of obtaining a new ladder, and if a promise to furnish him a new ladder amounts to anything, it certainly ámounts to a great deal in this case. Williams v. Kimberly & Clark Co., 131 Wis., 303.
    We have examined the cases which hold that the principle laid down in the case of Yerkes v.
      Railway Co., 112 Wis., 183, does not apply where the instrument or tool is a simple one, and we confess that we are unable to follow the logic of these opinions. The reason seems to be that arbitrarily, or possibly for expediency, this rule and principle should apply only where the instrumentality is a machine or device more or less intricate and based upon the assumption that the master has a better knowledge of its intricacy than the servant. Let us, for example, imagine a mechanic working on an intricate machine in a factory where the master maintains a repair man or men to keep the machine in shape. Let us further assume that the servant is a skillful operator of this particular machine, and knows more about it than the master. A defect in some part of the mechanism appears to the operator and he informs the master of the condition of the machine, receives a promise to have it repaired, and at the same time is ordered by the master to continue its use pending the repairs. The servant, believing that the machine will be repaired within a reasonable time, and relying upon the promise of the master to take care of and remedy the defects pointed out to him (the master), continues to use the machine, knowing meanwhile that by reason of its defective condition he might receive an injurv. The master delays somewhat the repairing of the machine but the servant continues in his regular employment, believing that the same will be remedied, and while so employed and before the defect is repaired, receives his injurv. We do not think there is any question that if this assumed case had been presented to these different courts who have held peculiarly upon the extent and force of the principle under discussion, the master would have been held liable.

      Messrs. E. G., H. C. & T. C. Johnson, for defendant in error.
    Plaintiff says that it was necessary to use stepladder. He was not told to do so and there is nothing shown in the petition whereby it can be even inferred that it was necessary to use a stepladder.
    Plaintiff’s petition describes a simple instrument whose defects were so open, obvious and apparent that it would not stand the strain of the weight of an object “the size of the millionth part of a gnat’s eye-winker,” referred to in plaintiff’s brief, and yet notwithstanding this, and plaintiff’s full knowledge thereof, he placed himself in the position to be injured and relies upon a mere promise to “have a new, proper and sufficient step-ladder, when it could be made” when he knew that if he used the ladder it would break.
    There is nothing complicated about a stepladder. Its manner of construction and use was as well known and understood to McGill as to the company.
    It was no more complicated than a hoe — a hand spike — or a mop. It does not come within the rule that a servant may complain of a defect therein and upon promise of master to repair, may remain in the service without accepting the risk. Marsh v. Checkering, 101 N. Y., 400, 5 N. E. Rep., 56; Cahill v. Hilton, 106 N. Y., 512; Corcoran v. Light Co., 81 Wis., 193; Gowen v. Harley, 6 C. C. A.,
      190, 56 Fed. Rep., 974; State v. Adams, 18 S. W. Rep., 393; Meador v. Railway Co., 138 Ind., 290, 37 N. E. Rep., 721; Conley v. Express Co., 32 Atl. Rep., 965; Machine Co. v. Wojciechowski, 111 Ill. App., 641; Bowen v. Railroad Co., 117 Ill. App., 9; Packing Co. v. Kretowicz, 119 Ill. App., 448; Gunning System v. Lapointe, 72 N. E. Rep., 393; Manufacturing Co. v. Nisbett, 68 N. E. Rep., 936; Light & Power Co. v. Murphy, 115 Ind., 566; Railway Co. v. Watson, 114 Ind., 20; Bailey on Master & Servant, 209; Erdman v. Steel Co., 95 Wis., 5, 60 Am. St. Rep., 66; Vanderpool v. Partridge, 13 L. R. A., N. S., 668.
    The promise, if made, did not absolve McGill from the use of ordinary care. Corcoran v. Light Co., 81 Wis., 193.
    In the case cited servant was ordered to use defective ladder in doing the work in which he was injured. In the case at bar there was no such order. In the case cited the defect alleged was that there was no spike in the bottom of the ladder. Meador v. Railway Co., 46 Am. St. Rep., 384.
    There was no order to plaintiff that he should use the ladder in washing windows. The order alleged was to wash the windows and plaintiff says it was necessary to use defective ladder. There are many ways to wash windows. We see in use a sponge or a cloth upon the end of a long stick. Windows could be washed from inside by opening window and putting out arm. ITe was not ordered to use any particular method — -the plaintiff could determine for himself.
    Nothing in the petition shows that there were no other appliances obtainable or at hand to be used in washing windows. He was ordered to clean the windows and it was left to his judgment how and with what he would do it.
    The defects in ladder as disclosed in the petition were so patent and of such a character that plaintiff was guilty of negligence contributing to his injury. even though promise to repair is shown. Railway Co. v. Watson, 5 Am. St. Rep., 578; Erdman v. Steel Co., 60 Am. St. Rep., 71; Anderson v. Fielding, 99 N. W. Rep., 357; Crum v. Pump & Lumber Co., 72 N. E. Rep., 193; Hotel Co. v. Kaltenbrun, 80 S. W. Rep., 1163, 82 S. W. Rep., 378; Baumwald v. Trenkman, 88 N. Y, Supp., 182.
    It is not in all cases that the servant may relieve himself from the assumption of the risk incident to defects and dangers of which he has full knowledge by exacting from the master a promise to repair. The cases where the ride of assumed risk is suspended and the servant exempted from its application under a promise from the master to repair or cure the defect complained of are those in which particular skill and'experience are necessary to know and appreciate the defect and the danger incident thereto, or where machinery and materials are used of which the servant can have little knowledge, and not those cases where the servant is engaged in ordinary labor, or the tools used are only those of simple construction, with which the servant is as familiar and as fully understands as the master. Manufacturing Co. v. Nisbett, 205 Ill., 273, 68 N. E. Rep., 936; Steel Co. v. Mann, 170 Ill., 200, 48 N. E. Rep., 417, 62 Am. St. Rep., 370, 40 L. R. A., 781: Meador v.
      Railway Co., 138 Ind., 290, 37 N. E. Rep., 721, 46 Am. St. Rep., 384; Marsh v. Chickering, 101 N. Y., 396, 5 N. E. Rep., 56; Light & Power Co. v. Murphy, 115 Ind., 570, 18 N. E. Rep., 30; Railway Co. v. Kelton, 18 S. W. Rep., 933; Bailey on Master & Servant, Section 3103; Burrows on Negligence, 121, 122; Gunning System v. Lapointe, 212 Ill., 274, 72 N. E. Rep., 393.
   Crew, J.

In support of the claim that the averments of the petition in this case sufficiently allege and show a liability on the part of the traction company to plaintiff for the injuries alleged to have been sustained by him through the negligence of said traction company, reliance is had upon the general rule that where the servant notifies the master of a defect in machinery or in his place of work, and the master promises to repair the same or to obviate and remove the danger, and the servant reasonably relying upon such promise remains in the service, that the master thereby assumes the risk of injury to the servant, and is liable to him in damages for an injury resulting to him from such defect pending the making of the repair promised. While such doubtless is the general rule applied in cases where the servant is engaged in working with machinery or appliances of which he has but a limited and imperfect knowledge, and in cases where some measure of skill and experience is necessary to enable the servant to know and appreciate the particular defect and the danger incident thereto, yet, that this rule was never designed or intended to apply to cases of common and ordinary labor, such as requires in its performance the use only of some simple implement, instrumentality or tool .with which the employe is himself entirely familiar, is, we think, clearly and abundantly established by the overwhelming weight of authorities.

Judge Bailey in his work on Personal Injuries, Volume 2 at Section 3103, in speaking of this rule and its limitations, says: “A master is not liable to a servant of mature years and ordinary mental capacity who is injured in his employ by reason of a defect in a ladder of which he was aware, though the servant had notified the master of such defect, and was told to use the ladder until another was furnished. The rule exempting an employe from an assumption of the risk in case of a promise to remedy the defect is designed for the benefit of employes engaged in work where machinery and materials are used of which they - can have little knowledge, and not for those engaged in ordinary labor which only requires the use of implements with which they are entirely familiar.” In the case of Meador v. The Lake Shore & Michigan Southern Railway Co., 138 Ind., 290, which was an action to recover for a personal injury occasioned by a defective ladder used by a watchman in lighting and extinguishing lamps at street crossings, the court in discussing this rule said: “In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery, is used, and no materials are furnished, the use of which requires the éxercise of great care and skill, it can be scarcely claimed that a defective instrument or tool furnished by the master, of which the employe has full knowledge and comprehension, can be regarded as making out a case of liability within the rule laid down. A common laborer who uses agricultural implements while at work upon a farm or in a garden, or one who is employed in any service not requiring great skill and judgment, and who uses the ordinary tools employed in such work, to which he is accustomed, and in regard to which he has complete knowledge, cannot be said to have a claim against his employer for negligence, if, in using an utensil which he knows to be defective, he is accidentally injured. * * * The fact that he notified the master of the defect, and asked for' another implement, and the master promised to furnish it, in such a case, does not render the master responsible if an accident occurs. A rule imposing a liability under such circumstances would be far reaching in its consequences, and would extend the rule of respondeat superior to many of the vocations in life for which it was never intended. It is a just and salutary rule, designed for the benefit of employes engaged in work where machinery and materials are used of which they can have little knowledge, and not for those engaged in ordinary labor, which only requires the use of implements with which they are entirely familiar. The plaintiff, in the case at bar, was of the latter class of laborers, and the work in which he was engaged was not of a character which would entitle him to the protection of the principle referred to, as applied to the use of complicated machinery.” In Marsh v. Chickering et al., 101 N. Y., 396, in the opinion of the court by Miller, J., it is said: “As a general rule it is to be supposed that the master who employs a servant has a better and more comprehensive knowledge as to the machinery and materials to be used than the employe who has claims upon his protection against the use of defective or improper materials or appliances wblile engaged’in the performance of the service required of him.

“The rule stated, however, is not applicable in all cases, and where the servant has equal knowledge with the master as to the machinery used or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof.

“In considering the application of the rule just stated due regard must be had to the limited knowledge of the emplojre as to the machinery and structure on which he is employed and to his capacity and intelligence, and to the fact that the servant has a right to rely upon the master to protect him from danger and injury, and in selecting the agent from which it may arise. Powers v. N. Y., L. E. & W. R. R. Co., 98 N. Y., 274, 280.

“In cases, however, where persons are employed in the performance of ordinary labor, in which no machinery is used, and no materials furnished, the use of which requires the exercise of great skill and care, it can scarcely be claimed that a defective instrument or tool furnished by the master, of which the employe has full knowledge and comprehension, can be regarded as making out a case of liability within the rule laid down. * * * It does not rest with the servant to say that the master has superior knowledge and has thereby imposed upon him. He fully comprehends that the instrument which he employs is not perfect, and if he is thereby injured it is by reason of his own fault and negligence. The fact that he notified the master of the defect and asked for another instrument, and the master promised to furnish the same, in such a case, does not render the master responsible if an accident occurs.” In Gunning System v. Lapointe, 212 Ill., 274, a comparatively recent case, it is said: “It is not in all cases that the servant may relieve himself from the assumption of the risk incident to defects and dangers of which he has full knowledge by exacting from the master a promise to repair. The cases where the rule of assumed risk is suspended and the servant exempted from its application under a promise-from the master-to repair or cure the defect complained of, are those in which particular skill and experience are necessary to know and appreciate the defect and the danger incident thereto, or where machinery and materials are used of which the servant can have little knowledge, and not those cases where the servant is engaged in ordinary labor, or the tools used are only those of simple construction, with which the servant is as familiar and as fully understands as the master.” In Vanderpool v. Partridge, decided by the Supreme Court of Nebraska, May 24, 1907, and reported in 13 L. R. A. (new series), 668, the first two paragraphs of the syllabus are as follows: “(1) The law requires masters to exercise ordinary care to provide reasonablv safe tools and appliances for their servants. (2) But the foregoing rule has no application where the servant possesses ordinary intelligence and knowledge, and the tools and appliances furnished are of a simple nature, easily understood, and in which defects can be readily observed by such servant.” The rule as announced by the foregoing authorities has found recognition, and has been declared, in many other cases, among which are Bowen v. Chicago & North-Western Railroad Co., 117 Ill. App., 9; Corcoran v. Milwaukee Gas Light Co., 81 Wis., 191; Jenney Electric Light & Power Co. v. Murphy, 115 Ind., 566; Webster Manufacturing Co. v. Nisbett, 205 Ill., 273; Conley v. American Express Co., 87 Me., 352; Railway Co. v. Kelton, 55 Ark., 483; Gowen v. Harley, 56 Fed. Rep., 973: International Packing Co. v. Kretowicz, 119 Ill. App., 488; Erdman v. Illinois Steel Co., 95 Wis., 6; Railway Co. v. Brentford, 79 Tex., 619.

Tested then by this apparently now well settled rule, we are of opinion that the allegations of plaintiff’s petition in the present case do not state a cause of action. In his petition plaintiff avers, “that some days prior to the 23d day of October, 1906, plaintiff discovered that said ladder which defendant had furnished him to be used while performing his duties, as aforesaid, had become old, worn and defective to such an extent that the same was unfit for plaintiff to use in connection with his said work, in that the steps of said ladder were loose and worn and the iron braces holding said steps to the side pieces of said ladder were loose, broken and defective.

“Avers that a few days prior to the 23d day of October, 1906, this plaintiff complained to his said foreman, Mike Gibbons, of the defective and dangerous condition of said ladder, and plaintiff avers that said defendant through its foreman assured and promised plaintiff that he would have said ladder repaired with a new, proper and sufficient one, so that plaintiff could safety perform his work.

“Plaintiff avers that about a week or ten days prior to the 23d day of October, 1906, he further complained to the master mechanic of defendant company, Fred Strail, of the defective and dangerous condition of said ladder, and that said master mechanic then and- there promised and assured plaintiff that he would be furnished with a new, sufficient and proper ladder with which to perform his work as soon as the same could be made, and that he should use said ladder until a new ladder was furnished.” It sufficiently and affirmatively appears from the foregoing allegations, that the unfit and unsafe condition of this step-ladder, on and prior to October 23, 1906, was fully known to and understood by the plaintiff. He knew as he alleges, “that the same ■ was unfit for plaintiff to use in connection with his said work.” He was familiar with and appreciated its condition and defects, all of which were alike open to his observation and within his comprehension, and it would seem from the averments of his petition that he was so. impressed by this defective and unsafe condition that he not only complained of the same to his foreman but to the master mechanic as well. Plaintiff knew as well as the foreman, master mechanic or master, that said step-ladder in its then condition could not be used with any assurance of safety, and having such knowledge he must be held to have assumed the risk of its use. To hold the master liable to an employe, under such circumstances, for injuries resulting to the latter from the use of so simple an implement or tool as an ordinary step-ladder, would be to extend the rule of respondeat superior, beyond its reasonable limit and to apply it as never intended. The case of Manufacturing Co. v. Morrissey, 40 Ohio St., 148, cited by counsel for plaintiff in error as supporting their contention in the present case is not in point, that being a case where the injury to the employe was caused by a complicated machine, and not by a simple instrumentality or appliance such as the step-ladder in the case at bar.

Judgment affirmed.

Price, C. J., Shauck, Summers, -Spear and Davis, JJ., concur.


author: Shauck, J.

text:
    Sanders et al. v. Penney, Guardian, et al.

      Recovery of losses at gambling — Lien on property where gaming is conducted — Section 4275, Revised Statutes — Does not apply to bucket shop, when.

    The provisions of Section 4275, Revised Statutes, relate only to money lost at gambling, and it is nowhere provided that one who loses money in a bucket shop may have a lien for the amount of his loss on the premises where the business is carried on, which he may assert against a purchaser of the premises for value, the purchase being made before a suit to subject the premises is instituted and without -notice of the claim.
    (No. 10533
    Decided December 22, 1908.)
    Error to the Circuit Court of Union county.

      On February 26, 1906, F. O. Penney filed his second amended petition in the court of common pleas (the original petition having been filed July 1, 1905) against the plaintiffs in error and others, to subject certain real estate described therein to the satisfaction of a lien, which he claimed to have thereon by virtue t>f the facts alleged by him. Issues having been joined the case was tried in the court of common pleas where the facts were found and a judgment rendered in favor of the plaintiffs in error dismissing the petition. On petition in error the cirquit court reversed the judgment of the court of common pleas and rendered a final judgment i.n accordance with the prayer of the amended petition. The following facts appear from the untraversed allegations of the pleadings and the findings of the court of common pleas: On and prior to May 25, 1905, John M. Sanders, Percy H. Sanders and Jesse S. Ivagay were the owners of the premises described. In a room in a building thereon from November 11, 1904, to December 6, 1904, inclusive, one George A. Baker carried on a bucket shop with the knowledge of said owners, though not as their lessee, but as a sub-lessee from one Carl Algower who was their lessee. May 3, 1905, Penne}'- recovered a judgment against Baker in a proceeding against him alone (the owners of the property not being joined) for $776.25, money which he had lost in the bucket shop carried on by Baker. On the 25th of May, 1905, the said owners conveyed said premises to the plaintiffs in error, who purchased the same for value, and without knowledge of the claim of Penney. On July 1, 1905, Penney brought the present suit and then, for the first time, joined the owners of the premises as defendants.

      Mr. ]. L. Cameron and Messrs. Mouser & Quigley, for plaintiffs in error.

      Messrs. Hoopes & Robinson and Mr. S. W. Van Winkle, for Sarah S. Penney, guardian.
   Shauck, J.

The opinion of the circuit court is before us and it shows that there was much reluctance in reaching the conclusion, that upon the facts stated Penney had a lien upon the premises which was entitled to prevail against the title of purchasers for value without actual or constructive notice of his claim. From brief and opinion it appears that the judgment of the circuit court is thought to be justified by the provisions of Section 4275, Revised Statutes. That section and Section 6934a-5 contain the only provisions for liens upon premises in which gambling or bucket shops are carried on, the former section containing the only provisions for liens to secure claims for money lost upon which, according to the settled principles of the common law, there could not even be a recovery because arising out of transactions in which both parties are acting unlawfully. The lien created by Section 6934a-5, is a security for the fine prescribed for permitting premises to be used as a bucket shop, and it is a lien for no other purpose. The act prohibiting bucket shops and dealing in margins is a part of Title I, Chapter 8 of the Revised Statutes, which regards offenses against public policy. Section 4275 is a part of Title Y, Chapter 5 of the Revised Statutes. Not only by its connection, but by its express term, it relates only to judgments recovered “under this chapter.” Some confusion was introduced into the case by the allegation of the petition that the-plaintiff's claim was for money lost at gambling, but the finding of the court is explicit that he had lost the money in a bucket shop venture, and thus the case is excluded from the operation of Section 4275. In Lester v. Buel et al., 49 Ohio St., 240, it was held that Section 4270, Revised Statutes, authorizes a recovery of money lost in a bucket shop which Section 6934a denounces as a gambling contract. But this relates to a recovery against him by whom the unlawful business is carried on, and there is neither decision nor provision of statute which gives to the loser in a bucket shop venture a lien upon the premises where ,the unlawful business is carried on until he brings a suit to subject:

The judgment of the circuit court is supposed to receive important support from Binder v. Finkbone, 25 Ohio St., 103. But that case is removed beyond supporting distance by two obvious differences. Firstly, it concerned a recovery under the chapter of which Section 4275 is a part, and to which, by its terms, it does apply whatever may be its proper interpretation; and, secondly, it was the assertion of a lien against the property where the business was carried on while it remained in the ownership of him who had knowingly permitted its unlawful use, and not in the possession .of his vendee for value who had no such knowledge. In both legislation and- adjudication there is frequent recognition of the capacity of the general assembly, in order to secure the effective exercise of the police power, to charge one with the consequences of what transpires upon his own premises with his knowledge, but legislation to visit such consequences upon his vendee, without knowledge or an accessible source of knowledge, would promptly start inquiry as to its validity. In the most obvious sense the legislation here involved is in derogation of the common law, and, therefore, to be followed by such consequences only as it plainly defines. .

Judgment of the circuit court reversed,, that of the common pleas affirmed.

Price, C. J., Summers, Spear and Davis, JJ., concur.


author: Price, C. J.

text:
    Lingler v. Wesco, Administrator, etc.

      Mortgagor dies in possession of chattels — Mortgagee cannot maintain replevin — Interest of mortgagee transferred to fund arising from sale by administrator.

    Where the mortgagor dies in possession of the goods and chattels covered .by the mortgage, even after condition broken, and his administrator has taken possession of said goods and chattels in his trust capacity, the mortgagee cannot maintain replevin against such administrator for their possession. In such case, if the mortgage is valid, the interest of the mortgagee in the property under mortgage is transferred to the fund arising from the sale by the administrator.
    (No. 10576
    Decided December 22, 1908.)
    Error to the Circuit Court of Butler county.

      On the 15th day of April, 1904, the plaintiff in error filed a petition in the Court of Common Pleas of Butler county against Florentine Kraft as administratrix of the estate of Franz Kraft, deceased, to obtain possession of certain personal property then in the possession of defendant. The petition contains two causes of action. In the first it is alleged that on the 4th day of May, 1903, Franz Kraft, now deceased, executed and delivered to the plaintiff, lingler, his twelve promissory notes, each for the sum of one hundred dollars and payable in six, seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, sixteen and seventeen months after the date thereof, each to bear six per cent, interest from date, interest to be paid annually and each note payable at the Second National Bank, of Hamilton, Ohio. No part of said notes has been paid, and when the petition was filed, the notes due in six, seven, eight, nine, ten and eleven months from date were then due, and the other notes were not then due.
    It is further alleged that on the 4th of May, 1903, in order to secure the payment of said notes, the said- Franz Kraft executed and delivered to Lingler. a chattel mortgage on “all bar fixtures, wines, liquors, cigars, chairs, tables, furnace, ice box, two billiard tables, and all property now in the building know as the Bank Saloon, No. 227 High Street * * * of the city of Hamilton and used by said mortgagor in the conduct of said saloon.”
    The mortgage contained the condition that if said Kraft should pay, or cause to be paid when due, his twelve promissory notes of said date for the sum of one hundred dollars each, with interest thereon, then the mortgage to be void, otherwise to be and remain in full force.
    The plaintiff alleges that no part of said notes or mortgage has been paid, and that the mortgage has become absolute, and that the plaintiff has acquired special ownership or interest in and is entitled to the immediate possession of said goods and chattels, and that Florentine Kraft, administratrix of Franz Kraft, deceased, wrongfully detains in her possession said goods and chattels, and has so detained them from plaintiff for more than thirty days to his damage in the sum of four hundred dollars.
    For a second cause of action plaintiff alleges, that on the 7th day of May, 1903, said Franz Kraft executed and delivered to him his certain promissory note for the sum of $2,500, payable one year after date with six per cent, interest from date, the interest payable annually. No part of said note has been paid. To secure the payment of this note Kraft executed and delivered to Lingler a chattel mortgage on the same property covered by the first mortgage and already described. The latter mortgage contained the condition that if the note was paid when due, the mortgage should be void, otherwise to remain in full force. This mortgage, as was true of the first, was duly sworn to as required by law, and filed with the recorder of Butler county, and that each of said mortgages is a valid lien upon said property.
    The plaintiff alleges that said Kraft died in Butler county, Ohio, intestate, on the -7th day of March, 1904, and that plaintiff has acquired special ownership in and is entitled to immediate possession of said goods and chattels, and that said Florentine Kraft, administratrix of the estate of Franz Kraft, deceased, wrongfully detains said goods from the plaintiff, and has so detained them for thirty days to damage of plaintiff in the sum of four hundred dollars.
    The prayer is for a recovery of possession of the property and for damages in the sum of eight hundred dollars.
    An affidavit in replevin was filed with the petition, and the property mortgaged was taken on a writ of replevin and delivered to the plaintiff on his giving a proper bond. The property replevined was appraised at $2,565.65. An answer to the petition and the reply thereto were withdrawn with consent of the court, and the defendant filed a general demurrer to the petition. The court sustained the demurrer, and on motion of the defendant, proceeded to assess damages, and found as follows, “the court finding that said defendant as administrator of Franz Kraft at the time the property described in plaintiff’s petition and replevined from her by said plaintiff, had the right of possession thereof for the purpose of administering the same according to law as administrator of said estate, and the court being fully advised does find that the value of the property described in the petition at the time it was replevined, was $2,565.65, and does assess the damages caused to the defendant by said plaintiff replevining said property from her, at $153.83.” Judgment was rendered for the sum of $2,719.48, and costs of the action. This judgment was affirmed by the circuit court.
    The case is here on error.

      Messrs. Andrezvs, Harlan & Andrezvs, for plaintiff in error.
    At common law the mortgagee of personal property is entitled to the possession and might maintain an action of replevin. 5 Am. & Eng. Ency. Law (2 ed.), 985; Jones on Chattel Mortgages (5 ed.), Section 426, page 489; Robinson v. Fitch, 26 Ohio St., 659; Root & McBride Bros. v. Davis, 51 Ohio St., 29; Grever & Sons v. Taylor, 53 Ohio St., 621; Ferguson v. Thomas, 26 Me., 499; Mertens v. Kielmann, 79 Mo., 412; Kellogg v. Olson, 34 Minn., 103.
    In the case at bar the notes secured by the chattel mortgage were unpaid although long past due.
    There can be no doubt that under the law the mortgagee, upon such default in the conditions of the mortgage, is entitled to the immediate possession of the mortgaged property and to maintain replevin. 5 Am. & Eng. Ency. Law (2 ed.), 1001; Brown v. Phillips, 3 Bush (Ky.), 656; Lacey, Trustee, v. Giboney, 36 Mo., 320, 88 Am. Dec., 145; Tannahill v. Tuttle, 3 Mich., 104, 61 Am. Dec., 480; Charter v. Stevens, 3 Denio, 33, 45 Am. Dec., 445; Lucketts v. Townsend, 3 Texas, 119, 49 Am. Dec., 723.
    It may be true that the decedent’s estate has an equity in the property and that the mortgagee, taking possession of the same by replevin or otherwise, is bound to account to the administrator for any surplus that may remain after satisfying the mortgage indebtedness, but this does not in the least detract’ from the mortgagee’s right to take the property into his possession.
    • The assignee under an assignment for the benefit of creditors represents all the creditors, and hence lien holders as well as general creditors must work out their respective equities in the probate court under the statute; and a mortgagee of either real or personal property can not maintain a foreclosure suit in the court of common pleas and thus oust the jurisdiction of the probate court to administer the trust. Havens v. Horton, 53 Ohio St., 342; Sayler v. Simpson, 45 Ohio St., 141.
    And since such assignee represents all creditors who are required, whether lien holders or not, to look to the proceeds of the insolvent estate as administered in the probate court, under the statute it follows that every mortgage void as to creditors is also void as against such assignee although such mortgage may have been binding upon the assignor. Hanes v. Tiffany, 25 Ohio St., 549.
    For the same reason a chattel mortgage void as to creditors, but binding upon the mortgagor is void as to the latter’s executor or administrator when the estate is insolvent. But when the estate is not insolvent such mortgage is valid and binds the heirs and distributees. Kilbourne v. Fay, Exr., 29 Ohio St., 264; Whiteley v. Weber, Admr., 2 C. C., 336, 1 Cir. Dec., 517.
    So we claim that a chattel mortgage binding upon the mortgagor, even though void as to creditors, is also binding upon the administrator or executor, and the mortgaged property never becomes assets iii his hands unless the estate is insolvent. A fortiori, a mortgage not only valid as to the mortgagor but also valid as to all creditors, as in the case at bar, is binding upon the administrator or executor and the property is not assets of the estate; and the administrator or executor is not entitled to administer upon the same under the statute as against the mortgagee’s rights to take the property into his possession by replevin or otherwise.
    We are not unmindful, to quote the language of Mcllvaine, J., in deciding the case of Kilbourne v. Fay, Exr., 29 Ohio St., 280, “of the analogy between the duties of the office of an administrator of an insolvent estate and those of an assignee of an insolvent debtor.” But this analogy does not exist between the assignee of an insolvent debtor and the administrator of an estate unless the decedent’s estate is insolvent.
    ■ Mr. Aaron Wesco; Mr. Alex F. Flume and Mr. Edgar A. JBeld-en, for defendant in error.
    We contend that the case of Lindemann v. Ingham, 36 Ohio St., 1, is decisive of the case at bar, and that there is no difference in principle between the rights of the assignee for the benefit of the creditors of a mortgagor and the rights of the administrator who represents not only the decedent’s heirs, but also the creditors of the estate, and is bound by the statutes to administer the estate in a certain manner.
    We further claim that the probate court has exclusive jurisdiction over the administration of estates of deceased persons and that after the death of the mortgagor the interest of the mortgagee in the property incumbered is transferred to the fund arising from the sale by the administrator.
    Statutory provisions for the administration of decedents’ estates- are made by Sections 6090 and 6091, Revised Statutes.
    The executor has been held to be a trustee for the benefit of the creditors of the estate. The ordinary course of administration is the means and process provided by law, whereby creditors of a deceased debtor receive payment. Kilbourne v. Fay, Exr., 29 Ohio St., 279.
    Counsel for plaintiff in error claim that it would be inequitable that the mortgagor’s death should take away the right of the mortgagee to seize the property by legal process, but we claim that this would not be inequitable, for contracts must be expounded according to the laws in force at the time they were made; and the parties are as much bound by a provision contained in a law, as if that provision had been inserted in, and formed part of, the contract. Lindemann v. Ingham, 36 Ohio St., 1.
    The lien of the mortgagee is not affected, the only thing which is affected is his remedy. He has a right to assert in the probate court that he has a lien against the mortgaged chattel property and that court has full jurisdiction to afford him the proper relief.
    We claim the probate court has exclusive jurisdiction. This court has held the appointment of an administrator by the probate court and his acceptance of the trust and qualification as such, gives that court jurisdiction not only of the estate, but also of the person of the administrator until his accounts as such administrator are settled. In re Estate of Morrison, 68 Ohio St., 252.
    We call attention of the court to the very able and conclusive opinion rendered by Judge Kyle in the Court of Common Pleas of Greene county, who decided this case below, reported in 3 N. P., N. S., 653, and 19 Ohio Dec., 474.
    The decision of this court in Lindemann v. Ingham, 36 Ohio St., 1, has been approved and followed many times by the courts of Ohio, and we refer the court to the following cases: Hart

    v. Iron Works, 37 Ohio St., 76; House, Assignee, v. Bank, 43 Ohio St., 356; Ingham v. Lindemann, 27 Ohio St., 218; Sayler v. Simpson, 45 Ohio St., 150; Havens v. Horton, 53 Ohio St., 342; Simpson v. Sayler, 2 C. C., 75, 1 Cir. Dec., 370; Whiteley v. Weber, Admr., 2 C. C., 340, 1 Cir. Dec., 517; In re Assignment of Brocamp, 2 C. C., 375, 1 C. D., 537; Clapp v. Banking Co., 50 Ohio St., 536; Brunswick-Balke-Collender Co. v. Smith, 72 Ohio St., 388; Wilson, Assignee, v. Swigart, 1 Ohio Dec., 418, 31 W. L. B., 344.
   Price, C. J.

There is nothing in the petition which was held bad on demurrer, to indicate that the chattel mortgage confers any special powers, such as power to sell or make other disposition of the mortgage property. As our statement of the case shows, the petition describes certain notes executed and delivered by Franz Kraft to the plaintiff Lingler, and that to secure their payment as each should become due, the mortgage was executed and delivered to the payee of the notes. It was properly verified and filed in order to perfect the intended lien on the personal property described therein. In addition to the facts alleged as to creation of the lien by virtue of this mortgage, it is averred “and that thereby the said property was conveyed to this plaintiff by said Franz Kraft.”

The other material provision of the mortgage is the written condition, that if said Kraft should pay or cause to be paid when due each of the several notes described in the mortgage, then it was to be void; otherwise to remain in full force.

The second mortgage referred to in the petition, given at a later date to secure the payment of a note for twenty-five hundred dollars, covers the same property and contains similar conditions. It may be inferred from the language of the petition, that Kraft paid some of the notes, but he died on the 7th day of March, 1904 — less than a year from the date of the notes and mortgage, at which time notes due in six, seven, eight, nine, ten and eleven months respectively, had matured. His wife, Florentine Kraft, became administratrix of his estate, and on April 15, 1904, Lingler brought suit in replevin against the administratrix to recover possession of the mortgaged property, and in pursuance- of the provisions of the statute of which he availed himself, he obtained possession.

As before stated, the petition discloses no condition upon which the mortgagee might take possession save the averment that by the execution of the mortgage Kraft thereby conveyed the mortgaged property to Lingler who thus acquired a special ownership therein. Evidently this personal property remained in the possession of the mortgagor and was in his possession at the. time of his death. What change, if any, in the relation of the mortgagee to- this property was wrought by the death of the mortgagor ?

It is not claimed that death discharged or in any degree weakened the lien of lingler, but he was not satisfied with holding his lien and permitting the administratrix to sell and administer upon the proceeds, and therefore asserted title under his mortgage and charged ’ that the administratrix wrongfully and illegally detained the property from him. The lower court decided that he could not maintain replevin against the administratrix and assessed damages against him for the value of the goods replevied.

Death soon or later is the certain fate of all men, and when a party accepts a mortgage upon chattels securing the payment of a series of notes some of which will not mature for many months, as was the case here, such party must be held to take such security in contemplation of what the law may require if death prevents the mortgagor from complying with the terms of his contract. The value of mortgaged property might be far in excess of the debt, and the estate of the deceased mortgagor would in such case be largely interested in the proper and advantageous disposition of the same, and it would seem unfair to the estate, that a mortgagee should be permitted to arbitrarily take possession and keep or dispose of the property as he please. The petition discloses no duty on the part of the mortgagee in respect to such property. It does not appear that he was authorized by the mortgage to sell at either public or private sale, nor does it appear what shall be done with the proceeds in case a sale should be made.

But aside from the lack of averment of what powers were conferred by the mortgage in question, we still have the question, what change occurs in the rights of a mortgagee on the death of the mortgagor? — not change in his contract lien, but change in the remedy to enforce it. Indeed, on the facts alleged in the petition in the present case, it can not be fairly urged that the decision of the lower court tended to impair any of the contract rights of the mortgagee. He contracted for a lien to secure his notes. Death did not remove or impair the lien, but we think it did so change the relation of the parties that the remedy by replevin, which might have been enforced in the lifetime of the mortgagor, is not available when the mortgaged property passes into the custody of the administratrix. The new situation does not dissolve the contract relation or impair the contract, but cuts off one of the remedies that could have been pursued against the mortgagor. Hence, 'it is not correct to say, that unless the mortgagee may take the property from the personal representative of the mortgagor, he does not enjoy the full measure of his contract rights. His rights as to the debt and its security may be one thing, and the remedy to enforce them may be another. The former may not be changed by the death of a party, while the other may necessarily be affected.

While the statute provides the method of obtaining a valid lien on personal property by mortgage, and one which was adopted by Lingler in this case, other provisions provide for the sale and distribution of personal property after the death of the owner. Section 4163, Revised Statutes, provides that: “When a person dies intestate and leaves any personal property, such personal property shall be distributed in the manner prescribed in section forty-one hundred and fifty-nine,” etc. This section points out the course of descent and distribution. But there are still other provisions to be observed after death of the owner of personal property. It is the subject of administration, and Section 6006, Revised Statutes, requires a bond of the administrator, one of the conditions of which is to make and return into court on oath within three months, a true inventory of all moneys, goods, chattels, rights and credits of the deceased which have or shall come to his possession or knowledge. The statute requires the administrator to administer according to law all the moneys, goods and chattels, etc. These are some of the duties of an administrator as to personal property of the deceased which comes into his possession or of which he has knowledge, and these duties are primary, or first duties in discharge of the trust. Later it is the duty and power to sell the personal estate and make due return of the same. In this case, some interest in the mortgaged property vested in the administrator, the extent of which depends upon its value as compared with the amount of valid liens, and the contract called the chattel mortgage, “must be expounded according to the laws in force at the time they are made, and the parties are as much bound by a provision contained in the law, as if that provision had been inserted in, and formed part of, the contract.” Lindemann v. Ingham, 36 Ohio St., 1.

Applying this rule to the case at bar, we think the chattel mortgage and Lingler’s rights under it must be expounded and determined with a proper recognition of the statutes regulating the settlement of estates of deceased persons, and that the mortgagee should not be allowed to supplant administration under the law, and take upon himself the administration on part of the estate. These provisions by statute for the administration of estates must be regarded as in contemplation of the parties who enter into such contracts, and they must be interpreted and enforced accordingly. And the mortgagee is not made to suffer by this method of procedure, for under Sections 6090 and 6091, Revised Statutes, which prescribe the order in which the administrator shall pay debts, his lien is preserved and recognized, and as said in Section 6091: “Nothing in the preceding section shall affect or impair any lien, legal or equitable, which any creditor or other person shall have upon the personal estate of' the deceased during his lifetime.” Hence, to this extent at least, the administrator is a trustee for the benefit of the mortgagee as well as other creditors of the deceased.

In Kilbourne et al. v. Fay, Exr., et al., 29 Ohio St., 264, the relation which the administrator sustained to creditors was under consideration, although it was not the paramount question in the case. The syllabus indicates the nature of the controversy: “Where a chattel mortgage is declared void by the statute ‘as against the creditors of the mortgagor,’ and the mortgagor dies in possession of the mortgaged property, leaving an insolvent estate, such property becomes assets in the hands of the executor or administrator of the mortgagor, whose duty, as well as right, it is to defend his possession against the claim of the mortgagee, notwithstanding such mortgage was valid as against the mortgagor.”

It is not claimed that the mortgage in the present case is void as to creditors, or as to the mortgagor, but the pertinent principle found in that case is, that the administrator is a trustee for the benefit of the creditors of the estate. In the course of the opinion, on page 279, Mcllvaine; J., says: “I shall not stop to cite cases wherein the executor or administrator has been held to be a trustee for the benefit of the creditors of the estate. The provisions of the 83d section of the administration act above quoted, clearly establishes such relation. (Said Section 83 is now 6091, Revised Statutes.) The ordinary course of administration is the means and process provided by law whereby creditors of a deceased debtor receive payment. It is true that in the case of a solvent estate, the heir has also a beneficiary interest in the trust as a distributee, but where the estate is insolvent, the interest of the heir is merely technical, as all the assets in such case are administered for the exclusive benefit of creditors. The analogy between the duties • of the office of an administrator of an insolvent estate and those of an assignee of an insolvent debtor are so perfect that we might at once affirm that the doctrine of Hanes v. Tiffany must control the decision of the present case.”

The perfect analogy mentioned is reinforced when we consider the duties of an assignee of an insolvent debtor defined by Section 6351, Revised Statutes: “The probate court shall order the payment of all incumbrances and liens upon any of the property sold, or rights and credits collected, out of the proceeds thereof, according to priority.”

This being the relation which an administrator sustains to the creditors of the estate of a deceased person, the case of Lindemann v. Ingham, 36 Ohio St., 1, becomes direct authority. It is not necessary to here restate the facts of that case. It was an action against Lindemann for conversion of goods and chattels covered by a chattel mortgage, which goods the assignee sold with full knowledge of the mortgage, which instrument was the title of the mortgagee. This court held that, “where a mortgagor in possession of goods mortgaged, makes an assignment thereof for the benefit of' his creditors, and the assignee proceeds in the probate court to administer the trust in accordance with the statutes regulating such assignments, the mortgagee can not maintain an action against the assignee for converting the property to his own use. In such case, his interest in the property under the mortgage, where the assignee is clothed with authority to sell the goods, is transferred to the fund arising from the sale by the assignee. And it will make no difference that the condition in the mortgage was broken at the time of the assignment/’ In the case at bar the mortgagee sued in replevin after condition broken, and thus gained possession of the property.

This court had occasion to again consider the question decided in Lindemann v. Ingham, supra, in Ingham v. Lindemann, 37 Ohio St., 218. The doctrine of the first case was adhered to and it has been quoted with approval by this court in several subsequent cases, and we think it has become the settled law of this state.

The plaintiff in error complains of the judgment assessing the damages. The judgment entry shows the following: “And thereupon this cause came on to be heard on said demurrer to said petition, and the court having heard the argument of counsel and being fully advised in the premises, does find that said demurrer is well taken and does sustain the same at the costs of the plaintiff and does render judgment on said demurrer against the plaintiff and in favor of defendant; and _ on application of the defendant herein filed the court proceeded to assess proper damages to the defendant, the court finding that said defendant as administrator of Franz Kraft at the time the property described in plaintiff’s petition and replevined from her by said plaintiff had the right of possession thereof for the purpose of administering the same according to law as administrator of said estate, and the court being fully advised does find that the value of the property described in the petition at the time it was replevined, was $2,565.65 and does assess the damages caused to the defendant by said plaintiff replevining said property from her, at $153.83.” The court then rendered judgment for the aggregate of the two amounts and costs of the action.

Before the demurrer was filed it seems that some issue had been made up by answer and reply, for the record shows that the defendant had leave to withdraw the answer and the plaintiff to withdraw the reply. Thus the deck was cleared for a demurrer to the petition, which was filed, and the right of plaintiff to maintain replevin against the administrator was thereby challenged. The question was decided on the demurrer against the right of replevin. The plaintiff did not ask permission to amend his pleading and he was in possession of the property replevined. It does not appear that either party demanded a jury to assess the damages, and for what we know, they may have waived a jury, for the record is silent on the subject. The entry shows that the court made a finding in favor of defendant and against the plaintiff on the demurrer, and that defendant was entitled to possession of the property when suit was brought, and then the court proceeded to find the value of the property at the time of replevin, and assessed its value as the measure of damages. Such a finding presupposes the introduction of evidence, and where the record is silent, a reviewing court will presume that the court below, being one of general jurisdiction, acted upon evidence to support the finding of value and amount of damages.

Therefore it appears' that no one objected to the court hearing the evidence and passing upon it. No one asked for a jury, but the parties proceeded with a submission of the case. The condition of the record here warrants the use of the rule established in Bonewitz v. Bonewitz, 50 Ohio St., 373. “A party may waive his right to a jury trial by acts, as well as by words.”

We find no error, and the judgment is affirmed.

Judgment affirmed.

Shauck, Crew, Summers, Spear and Davis, JJ-, concur.


author: By the Court.

text:
    The Cincinnati Northern Traction Company v. The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company. The Cincinnati Northern Traction Company v. The Cincinnati, Hamilton & Dayton Railway Company.

      Section 3333-1, Revised Statutes — Proceedings to procure order as to method of crossing of railroads' — Court should apportion cost of practicable grade of approach — Junior company may be charged with additional cost, zvhen.

    1. In a proceeding under Section 3333-1, Revised Statutes, where a junior and senior railroad company are not able to agree as to a method of crossing, to procure an order of the court in that behalf, the court should equitably apportion between the roads only the cost of such a grade of approach as will be practicable. If the junior road desires a lesser grade it may, with propriety, be charged with the entire additional expense of such construction.
    2. The statute requires that not only the costs of constructing such crossing as the court may order, but also the cost of maintaining it shall be equitably distributed between the companies.
    3. When, in such case, the junior road has projected and is engaged in constructing a double track road, the cost of a crossing sufficient in width to p carry a double track should be equitably apportioned between the companies.
    (Nos. 10944 and 10945
    Decided December 22, 1908.)
    Error to the Circuit Court of Butler county.
    Error to the Circuit Court of Butler county.

      Mr. W. C. Shepherd and Mr. George H. Warrington, ' for plaintiff in error in Nos. 10944 and 10945.

      Mr. Charles Darlington and Messrs. Rozve, Shuey, Matthews & James, for defendant in error in No. 10944.

      Messrs. Shoits & Millikin, for defendant in error in No. 10945.
   By the Court.

These were applications made under Section 3333-1, Revised Statutes, asking the court of common pleas to fix the mode and manner by which a junior railroad company should construct its way at a crossing of the senior company, the companies not being able to agree. The cases having been decided in the court of common pleas were appealed to the circuit court, where a final order was made fixing the mode and manner of crossing and apportioning certain of the costs and expenses thereof. In general, the view taken of the subject in the circuit court was entirely consistent with the view of the subject taken by this court in the case of The Toledo Ry. & Terminal Co. v. The Lima & Toledo Traction Co., .ante. The present cases, however, present three questions that were not disposed of in that case.

First: The circuit court found in the present cases that a three per cent, grade for the approach to the overhead crossing, which it ordered, was practicable, and, therefore, it ordered that one-half of the cost of constructing the approach at a three per cent, grade should be paid by each company, but that if the junior company desired a two per cent.- grade to reach the overhead crossing, at the required height, it should pay the additional cost of construction at that grade. We perceive no reason for differing from the conclusion of the circuit court in that respect. Its finding that a three per cent, grade was practicable was based upon very substantial evidence, and a practicable crossing would seem to be all that was in the contemplation of the statute.

Second: While the circuit court ordered an overhead crossing to carry the cars of the junior road, and ■ ordered that one-half of the cost of constructing such overhead crossing should be paid by each of the roads, it ordered that the cost of maintenance should be borne wholly by the junior company. In that respect the order of the circuit court is entirely inconsistent with the statute, which provides, in .express terms, that both the cost of construction and the expense of maintenance, shall be equitably apportioned among the parties.

Third: The court ordered that the bridge by which the junior road should carry its track over the senior road, should be wide enough for a single track, and the cost thereof apportioned equally between the companies, but that if the junior road desired a bridge wide enough for a double track, it should pay the additional cost of constructing a bridge of that width. In that respect we think the order of the-circuit court is not in accordance with the spirit and purpose of the statute. It will be consistent with that spirit and purpose, and with public policy, if the number of tracks upon which both the senior and junior roads shall operate, are determined by themselves as a matter of railroad operation, rather than by the courts as a matter of law. In a proceeding of this character it will be quite as clearly within the authority of the court for the purpose of diminishing the cost of the overhead structure, to order the senior road to reduce the number of its tracks in order that the structure may thereby be shortened, as to provide that the structure should be narrower than the wants of the junior road in order that the cost of construction may in that manner be reduced. It would hardly comport with the obvious policy of the statute to require a section of single track in a double track railroad.

The judgment of ■ the circuit court will be, in all respects affirmed, except as to propositions two and three above, as to which its judgment will be modified in accordance with the views here expressed.

The modified judgment will be entered in this court and remanded to the circuit court for execution.

Judgments modiñed.

Price, C. J., Shauck, Crew, Summers, Spear and Davis, JJ., concur.