author: Bartlet, C. J.

text:
    *Edward Allen v. Joseph Curles.
    Where, under a special contract to build a saw-mill and furnish materials therefor, the workman, after part performance, abandons the job, without a legal cause, in the absence of proof showing the assent of the employer to such abandonment, or his acceptance of the work unfinished, there can be no recovery, pro tanto, for the work.
    Petition in error to reverse the judgment of the district court of Clermont county.
    The original proceeding was an action of assumpsit brought by the plaintiff in error, against the defendant in error, in the court of common pleas of Clermont county, in December, 1852. The plaintiff declared on a special contract in writing, and added the ■common counts for work and labor, goods sold and delivered, ■etc. The defendant plead the general issue, and gave notice of .set-off, etc. On the trial in the common pleas before a jury, the plaintiff recovered, and the defendant appealed. At the May term of the district court, 1855, the cause was tried, and the plaintiff nonsuited, and a bill of exceptions taken, which shows, that after the jury was impaneled, the plaintiff, to maintain the issue on his part, offered, in evidence, the original contract, a copy of which is rs follows:
    “Jackson Township, Clermont Co., Ohio,]

      March 25, 1851. j
    “ Article of agreement made and entered into between Joseph •Curies of the first part and Edward Allen of the second part:' “Said Allen doth agree to furnish all the materials, except the •timber in the tree, and the stone in the creek, and build a saw-mill of the size and form of Jerry Harlow’s, on the east fork of the Little Miami, except the middle wall in the lower story — that is to be a Trame. Said mill is to bo built on the east fork on the farm of the said «Curies; the wheels and irons are to be'the same as Harlow’s. Said Allen is to dig the pit and tail-race, and put up the walls of said mill. Said Curies is to pay said Allen five hundred dollars; *one [506 hundred to be paid by the 15th of September, and two hundred when the mill is completed, and the balance in two years from the time the mill is completed. The mill is to be completed against the first day of January, 1852. Said Curies is to furnish timber in the wood, on said farm herebefore mentioned, in the tree. Said Allen is to do the work in a workmanlike manner. The said Allen is to Board himself.
    (Signed,) “Joseph Cueles,
    ‘ Edward Allen.”
    And the plaintiff, further to maintain the issue on his part, proved that he had commenced labor in pursuance of said contract — that he had erected the foundation walls and frame of said mill; and that, after performing labor and furnishing materials for said mill to the value of about two hundred and fifty or three hun-. dred dollars, he left said work without completing the same.
    Plaintiff further offered testimony tending to prove that some slight variation from said written contract was made in the plan of said work, which would increase his expenses to some extent.
    And this being all the testimony offered in the case, the plaintiff rested. Whereupon the defendant asked the court to arrest the testimony from the jury, and to direct a nonsuit. The court sustained said motion, and ordered a nonsuit.
    Whereupon the plaintiff moved the court to set aside the nonsuit .and grant him a new trial, but the court refused to do so. The plaintiff claims that there is error in said rulings of the distinct •court.

      Clark & Lewis, for plaintiff in error.

      John W. Lowe, for defendant in error.
   Bartlet, C. J.

The plaintiff sought to recover a quantum ■meruit for his. labor, and a quantum valebant for materials furnished, in building a saw-mill for the defendant *under a special [507 contract, which he had voluntarily abandoned before the completion of the work stipulated for ; and this, without an attempt to .show any waiver or breach of the contract by the other party, to justify such abandonment. It appears that evidence was given tending to prove that some slight variations in the written contract, were made in the plan of the work, which would increase the expense to the plaintiff to some extent. But as this appears to have been agreed to by the plaintiff, it did not altor the contract, in other respects, or absolve him from its obligations. True, it would seem, that evidence was given tending to prove that work was done and materials furnished by plaintiff to an amount of from two hundred and fifty to three hundred dollars, which would inevitably inure to the benefit of the defendant; but no attempt even was made to show that the defendant had accepted it, or, by any other act, assented to any waiver of the obligations of the special contract. Under such circumstances, upon what principle' was the plaintiff entitled to a recovery? Where the employer is necessarily benefited by the work, although the workman has done his work imperfectly, or in a manner differing from the requirements of the contract, or has left it unfinished, it is not always easy to determine the rights and obligations of the parties. And there is much confusion in the reported adjudications, both in England and in this country, touching this subject. The difficulty appears to have arisen in the application of the principles of the law to the complex and circumstantial variety under which contracts-are presented, rather than in ascertaining the true principles. For the purpose of perspicuity the decisions bearing on this subject have been arranged in distinct classes, to wit: those arising on contracts of sale; those arising on contracts for specific jobs of work, such as the erection of buildings, etc.; and those arising 508] on ^ordinary contracts for service. There does not appear, however, to be any well-founded distinction in the principles of the law applicable to these different classes of contract.

The doctrines and distinctions now maintained by the better authorities, according to Mr. Justice Story (see Story on Bailments, sec. 441), are these: “If the special contract still remains open, and is unexecuted by the misconduct or default of the workman, he can not recover anything for his work and labor, and materials employed in part fulfillment of the contract. If the contract has been rescinded by the parties, or the work has not been completed from inevitable accident, and is incapable of being completed, or if the employer has prevented or dispensed with the due execution thereof, the workman is entitled, in the former case, to a compensation pro tanto for the work done, unless there is something in his contract which prevents it; and in the latter ease to a full compensation, on account of the 'default on the other side. If the-work has been done, and fully completed, but not according to the terms of the special contract, as if there has been a deviation from the plan or contract, or a bad and improper execution thereof, or the work has not been completed within the stipulated time, then the workman will be entitled to recover compensation, or not, ac-cording to circumstances. If the work has been so improperly and unskillfully done, that it is of no use, benefit, or value to the •employer, or does not in any manner answer the intended purpose, no compensation whatsoever is recoverable. But if the work, although improperly or unskillfully done, is still of some use, benefit, and value to the employer, the workman will be entitled to recover so much as the work is reasonably worth to the employer, under all the circumstances, making him all due and reasonable deductions and allowances. If the work *has [509 been well and properly done, but not within the stipulated time, the workman will, in like manner, be entitled to the compensation stipulated in the contract, making to the employer all due deductions and allowances for any damage or loss occasioned by the delay.”

In the case of Witherow v. Witherow, 16 Ohio, 238, it was held by the Supreme Court of this state, that the vendor of personal property to be delivered within a specified space of time, and payment to be made therefor on a day certain after the expiration of the time ibr the delivery, having delivered a part of the goods which were received by the other party, but failing to deliver the •entire amount of the’ goods within the time fixed, can not recover in indebitatus assumpsit for the part delivered, without sufficient excuse for the non-delivery of the residue. This was certainly laying down the rigid rule to the utmost extent of strictness; and that must be admitted to be a hard case, and not in full accordance with the weight of the more modern authorities bearing upon this subject. It is not necessary in the case before us, to go so far as this ■case goes. Where the undertaking is to do work and furnish materials under the terms of a special contract, and the work is •abandoned after part performance, and left unfinished by the fault •of the workman, in the absence of all evidence showing the assent •of the employer, or his acceptance of the work part finished, there nan be no recovery pro tanto upon any established principle known to the law. The most familiar principles of the law inculcate the observance of good faith in the fulfillment of contracts; and it is the duty of courts to enforce the performance of contracts, instead of encouraging their violation.

Judgment of the district court affirmed

Swan, Brinkerhorr, Bowen, and Soott, JJ., concurred.


source: Caselaw Access Project

author: Bowen, J. Brinkerhoff, J.,

license: Public Domain

text:
    Daniel H. Reynolds v. Charles H. Tucker and Cynthia Tucker, his wife.
    1. In ah action of slander for words spoken against the chastity of the plaintiff’s wife, it is competent for the defendant, under the general issue, in mitigation of damages, to prove that the wife and an unmarried man had. lived together alone in 'one house, where a knowledge of such mode of living had come to the defendant before the speaking of the words.
    2. If the court refuse to permit competent testimony to go to the jury, the error in such refusal is not cured by the consent of the adverse party afterward to go into the inquiry proposed by the rejected evidence.
    This cause comes into this court upon a petition in error to reverse-the decision of the district court of Lorain county, made at the September term, 1855. The original action was case for slanderous words, and was commenced in October, 1852.
    *The actionable words charged in the declaration were, that [517' said Cynthia was a whore, and defendant could prove it by Thomas Goman, and that she was Thomas Goman’s concubine. That she was ■ a. whore before she came from Vermont, and was still a common whore for anything that came along.
    The general issue was pleaded, and the case tried before a jury,, and a'verdict^of six dollai’s rendered in favor of defendants in error, on which the district court gave judgment.
    After the plaintiffs below had given proof of the speaking of the words, the defendant offered to prove that plaintiffs had lived. together alone in one- house before they were married; which fact was well known to the defendant below, at the time they so lived together, which was eight or nine years ago; to which evidence the-; plaintiffs below objected, and the court sustained the objection (but subsequently, while the same witness was under cross-examination, the plaintiffs below offered to go into the inquiry, which was declined by the defendant), and refused to allow the evidence to go to-the jury. The court held that the defendant below could not prove particular acts of misconduct on the part of the plaintiff, unless, they were such as related to the circumstances connected with the-words spoken by the defendant, but must be confined in his proof to general reports of her character for chastity in the neighborhood, and to general reports of her having lived with her husband under ■suspicious circumstances before marriage; and that defendant could not prove, as a fact, that she had lived with her husband under suspicious circumstances before her marriage, no circumstance connected with that having been referred to by the defendent in the words .spoken by him.
    To the refusal of the court to admit this evidence, the defendant below excepted.

      *Stevenson Burke, for the plaintiff in error:
    The court below erred in ruling out the evidence offered by defendant below, and also in restricting the defendant below in his proof, to the showing of general reports, etc. The following cases .are in point: Haywood v. Foster, 16 Ohio, 88; Bush v. Prosser, 1 Kernan, 347; DeWitt v. Greenfield, 5 Ohio, 325; Knobell v. Fuller, Peakes’ additional cases, 137; Williams v. Miner, 18 Conn. 464; Rigdon v. Wolcott, 6 Gill & Johnson, 413; also Wilson v. Apple, 3 Ohio, 270.
    H. D. Clark (with whom was J. Myres), for defendant in error,
    cited 21 Pick. 404; 13 Johns. 475; 1 Pick. 1; 2 Ib. 376; Miller v. Spencer, Holt’s Nisi Prius cases, 535; 3 Eng. Com. Law, 177.
   Bowen, J.

Por the purpose of mitigating damages it was competent for the defendant, under the general issue, ty prove facts, •connected with the speaking of the words, which were from the nature of them, calculated to induce the belief, on his part, that the plaintiff’s was wife guilty of the impropriety imputed to her, provided such proof did not establish a justification. If an unmarried man and woman live alone in the same house, it may and very likely would raise an inference unfavorable to the latter’s chastity. It may induce a belief that adultery has been committed by her, while holding that relation. Still, however, it does not convict her of the act.. Such mode of living may be entirely innocent and proper, adopted and continued for the most upright purpose. The whole reason for the rule for admitting such evidence, is to relieve the defendant from the consequences which attach to malice, in the ■speaking of the words. He may show particular acts of the plaintiff which, unexplained, gave him just reason to believe in the truth 519] of the declarations which he uttered; but *whon explained :and understood, mav be found to be compatible with the plaintiff’s innocence. It is permitted upon the ground that the proof, when introduced, may serve to show that the defendant, in making the charge, was mistaken — that he misconstrued the act or conduct of the party, by supposing it to be criminal, while, in fact, it was not. When the testimony can have no other effect than to make apparent the plaintiff’s guilt, and prove the truth of the words spoken, its introduction to the jury must necessarily tend to justify the speaking, and not to mitigate damages, by showing the absence of malice. To be competent for the former purpose, the facts relied on must be plead specially, and can not be given in evidence under the general issue. Such is the rule in Wilson v. Apple, 3 Ohio, 270; DeWitt v. Greenfield, 5 Ohio, 225; Haywood v. Foster, 16 Ohio, 88. The fact which the defendant offered to prove, was erroneously excluded from the jury.

The evidence having been improperly rejected by the court below, was the error cured by the offer of the plaintiffs, wh’ile the witness was on cross-examination, to go into the inquiry which the defendant’s question proposed ?

: The error of the court consisted in ruling against the competency of the evidence. The consent of the party in whose favor the ruling was made, afterward to admit the evidence, could not relieve the party from the effect of the erroneous decision of' the court. The jury would receive it with knowledge that the court had pronounced it incompetent, and it would go to them under the stamp of judicial disapproval. It can hardly be said, in such case, that the party would derive the same benefit from it that he would have done, had he been allowed to examine the witness, as of right, upon the subject, by the sanction of the judges. When the court had expressed its opinion that the evidence should not be considered by the jury, the latter would *scarcely give it any consideration, [520 when admitted by the mere favor of the other side.

The consent of the plaintiffs to go into the examination, which was proposed by the defendant, could not restore the latter to the same condition before the jury, that he would have sustained, if the court had permitted him, as of right, to make the inquiry of the witness.

Judgment reversed, and cause remanded.

Bartlet, C. J., and Scott, J., concurred.

Swan, J., concurred as to the first point, but dissented as to the -second.

Brinkerhoff, J.,

dissenting. I am not entirely satisfied with the principle, by a reference to which the majority of the court de•cide tliis case. The suit below being an action on the case under the old system of pleading and procedure, and the plaintiffs below having had no notice of the facts intended to be offered in evidence by the defendant in mitigation of damages, either in the pleadings • or by an allusion to those facts in the slanderous words complained -of, I entertain strong doubts whether the admissibility of the evidence offered in mitigation, can be sustained either by reason or . authority.

But, inasmuch as the code of'civil procedure now provides that a defendant, in an action for slander, may set up in his answer not • only matter of justification, but also “any mitigating circumstances to reduce the amount of damages,” and prove either; thereby effecting for the future such a revolution in the mode of conducting ■.suits for slander, as to render a discussion of the principle of but evanescent and therefore trifling interest, I do not-think it worth 521] while to enter upon it. But waiving, for this ^reason, all question as to the soundness of the principle on which the majority •of the court proceed, I still find myself unable to concur in the judgment they have ordered; because I can not think that the principle has any such application to the case actually before us as to render •either necessary Or proper the reversal of the judgment of the district court.

The difference of opinion between the majority and minority of the court, arises entirely from the different construction which we •respectively give to that clause of the bill of exceptions taken in ;the district court, on which they base their finding of error.

That clause of the bill of exceptions is as follows:

“Defendant then offered to prove, by Benjamin Taylor, and 'Ephraim Cook, and others, that plaintiffs had live together alone in • one house before they were married, which fact was well known to the defendant at the time they so lived together, which was eight or liine years ago; to which evidence the plaintiff objected, and the court sustained the objection (but subsequently, while the same witness was under cross-examination, the plaintiffs offered to go into •.the inquiry, which was declined by the defendant), and refused to allow the evidence to go to the jury. The court held that defendant ■could not prove particular acts of misconduct on the part of the plaintiff, unless they were such as related to the circumstances connected with the words spoken by the defendant, but must be confined, in his proof, to general reports of her character for chastity in the neighborhood, and to general reports of her having lived with. her husband under suspicious circumstances before marriage; and defendant could not prove, as a fact, that she had lived with her husband under suspicious circumstances before marriage, no ■circumstance connected with that having been referred to by the •defendant in the Swords spoken by him. To all of which [522 ■rulings and decisions of the court defendant excepted.”

Now, if that part of the above extract from the bill of exceptions included in the parenthesis were omitted, and granting the point ruled by a majority of the court as to the admissibility of the evidence offered, it follows that the district court erred; but the statement embraced in this parenthesis shows, clearly to my mind, that .■subsequent to the offer of the defendant below to prove the fact alleged in mitigation, and after the court had refused, on objection being made, to admit such proof, but while the first witness, by whom the defendant below offered the proof, was still on the stand, the plaintiffs below withdrew the objection before made by them and sustained by the court; and the defendant below, then, at a time when he could have suffered no possible injury by its temporary exclusion, declined to enter upon the inquiry he had before urged.

It is impossible for me to ignore my knowledge of the manner in which business is done on the circuit. Bills of exception are drawn up, not by the court but by'Counsel; the court is generally pressed for time in which to dispose of the business on its docket; bills of exception, are presented to the court for signature, and on examination are found to be inaccurate, defective, or mistaken: instead of compelling counsel to recast the whole paper-(a process often greatly needed), the court, in its lenity, permits a resort to interlineations and erasures, and thus important facts are often obscured or awkwardly stated. And in looking at the entire clause of the bill of exceptions above quoted, I have no doubt that when the bill of ex-■cojDtions was presented to the court for signature, that part of it included in pai’enthesis was absent; and I can well imagine the learned judge who presided on the trial saying to *the coun- [523 sel who presented it, “Why, my dear sir, in this bill of exceptions an important incident in the history of the trial of this ease is wholly omitted, and which, in fairness to the plaintiffs, ought to be inserted. You will remember, that after your offer to prove that the plaintiffs lived alone together before marriage was made and overruled, but while the witness by whom the proof was offered to Bo made was still under examination, and therefore before you could be prejudiced by his departure or otherwise, the plaintiffs withdrew their objection to that inquiry, and you then declined to enter upon it.” The counsel rejolies, “Ah, yes! I will interline that.” And hence this-awkward parenthesis thrown into the body of the sentence: But subsequently, while the same witness was under cross-examination, the plaintiffs offered to go into the inquiry, which was declined by the defendant.” How “go into the inquiry?” I answer, by the regular and ordinary methods- of legal inquiry; the party who holds the affirmative taking the initiative. So to interpret this phrase is in entire consistency with the parlance of lawyers, and we are bound to no other presumption.

If I am coi’rect in what I have said, all that part of the clause of the bill of exceptions above quoted which follows the parenthesis, is but a statement of the principles’on which the testimony offered was at first excluded. It does not appear to be a part of the charge of the court to the jury; and it could not injure the defendant, for it only gave reasons for the exclusion of evidence which he declined to give when all objection was withdrawn.

But, it is said, if the defendant was entitled to the testimony offered at all, he was entitled to it as competent, and that to have it go to the jury under the qualifying stigma of incompetency was an error of which he has a right to - complain. Grant this, and 524] what then? The withdrawal *of the objection to it rendered it competent for the court to admit it; and if the defendant had not declined the inquiry, I can not doubt but that the learned judge would have admitted it as being rendered competent-by the waiver of all objection to it, and would so have instructed the jury. ’Wo can not presume the contrary, and had he done otherwise, there is, it seems to me, no imaginable reason why so much pains should have been taken to thrust into the bill of exceptions this awkward parenthesis.

1 hold, then, that all objection to the proof in mitigation of damages offered by the defendant, having been withdrawn by the plaintiffs while the witness, through whom the proof was offered, was still on the stand; and it not appearing that the proof was finally excluded, except at the defendant’s own instance, there is no error which he himself has not ratified, and none of which‘he has a right to complain. I think, therefore, that the -judgment of the district court ought to be affirmed.

I have, in this case, differed from the majority of my brethren— as I always do when I have the misfortune to differ with them— with extreme reluctance; because I entertain an unaffected distrust of my own judgment, and a very high and sincere respect for theirs. In thus briefly stating the reasons for my dissent, I have been governed by what I thought was due to my own convictions as to the rights of parties before us, and hope to be pardoned for the time I have occupied.


author: J. R. Swan, J.

text:
    *Charles H. Picket’s Administrator v. Albert L. Picket’s Administrator.
    1. A purchaser of land, who has received a deed, containing a covenant of warranty, can not plead in bar to an action on a note given for the purchase money, defect of title, unless he has been evicted by title paramount.
    2. Therefore, in an action brought by A against B, on a note given by B for the purchase money of land, B plead in bar that A executed to him a deed for the land, with covenants of general warranty; that, at the time the deed was made, there was a lien on the land by a judgment against A, upon which the land was sold, and sale confirmed; and that he (B) had yielded up possession to the superior title of the purchaser under the execution. On demurrer, held, that the plea was defective, in not averring that a deed had been executed to the purchaser under the execution.
    Assumpsit. Eeserved in the district court of Delaware eouu'ty.
    The plaintiff brought suit on a note of hand. The defendant plead specialty, that the note was given for land conveyed by ’Charles TI. Picket to Albert D. Picket, with covenants of general- ; warranty; that at the time of the conveyance there was a judgment ' lien on the land ; that the land was sold as the property of Charles H. Picket, to the judgment creditor, under execution issued on the judgment; that some seven months after the date of said conveyance, the sale made by the sheriff was confirmed by the court and' a deed ordered to be executed to the purchaser; that by moans "thereof the said Albert L. Picket lost all right and title to the land; that the purchaser took possession thereof, and by his superior title evicted the said Albert therefrom.
    To this plea the plaintiff demurred; and the court of common pleas sustained the demurrer, and rendered final judgment for the plaintiff.
    The defendant appealed the cause to the district court, *and that court reserved the questions raised on demurrer to the plea, for decision in this court. .

      Finch & Critchfield, for the plaintiff.

      James A. Barnes and T. W. Powell, for the defendant.
   J. R. Swan, J.

The facts set forth in the plea, do not constitute a bar. To entitle the defendant holding a deed with covenants for title, to set up a defense to the payment of -purchase money on account of defect of title, the plea must show clearly a breach of the covenants. In this ease the defendant claims that there has been a breach of the covenant of warranty. The plea should therefore aver .an eviction, actual or constructive,.by paramount title. The case of Frisbee v. Hoffnagle, 11 Johns. 50, has been repeatedly overruled. Hibbard v. Johnson, 19 Johns. 77; Lattin v. Vail, 17 Wend. 188; Hoy v. Taliaferro, 8 Smed. & Marsh. 739; Tallmadge v. Wallis, 25 Wend. 116; Whitney v. Lewis, 21 Id. 131; Lamerson v. Marvin, 8 Barb. S. C. 11.

In the case before us, the premises were sold on an execution, ■and the sale confirmed. No deed has been made by the sheriff; at least none is averred; so that the legal title is still in the defendant. This is fatal to the plea. If no deed has been made by the •sheriff to the purchaser on the execution, the covenants of warranty run with the land to the heirs of Albert L. Picket; but the effect of this, if any, it is not necessary to determine. The effect, too, of Albert L. Picket receiving the rents and profits for about seven months, it is also unnecessary to' consider.

Pemurrer sustained.

Brinkerhoee, Bowen, and Scott, JJ., concurred.

Bartley, C.. J., dissented as to the first proposition of the syllabus, and concurred as to the second.


author: Bartley, C. J.

text:
    Robert Estep’s Administrator v. John R. Cecil & Co.
    It is not essential, in order to charge an indorser of a bill of exchange drawn in Ohio and payable in another state, for the notary who protests it for nonpayment, to attach thereto a certificate of protest; notice of demand and non-payment is sufficient to charge the indorser.
    The certificate of protest is convenient proof of the demand and non-payment, but is not, in such a case, essential for anjr other purpose than the recovery of statutory damages.
    This is a motion for leave to file a petition in error to reverse the judgment of the district court of Stark county.
    Estep was the payee of a bill of exchange drawn in Ohio and payable in the city of New York; and after acceptance, and before maturity, he indorsed the same to the defendants in error.
    *At the maturity of the bill, it was duly presented by a notary for payment and was not paid, and Estep was notified of such non-payment.
    The notary attached to the bill a certificate of protest before he sent notice to Estep, but in this certificate he described a bill entirely different in its parties, amount, and all other particulars, from the bill to which the certificate was attached; having by mistake attached a certificate of protest prepared for a different bill.
    The defendants in error who were the plaintiffs below, brought their action against Estep’s administrator on the indorsement, and the administrator set up the mistake in the certificate by way of defense, claiming that the protest was not complete, and that the notice to his intestate was insufficient. The plaintiffs read in evidence the deposition of the notary, tending to' prove that the bill was regularly protested, and a certificate of protest made out for this bill with others, but by mistake the wrong certificate was attached to this bill. The district court held the proof of the notice- and protest sufficient, and gave judgment for the plaintiff.

      Dunbar & McSweeney, for the plaintiff in error.

      J. W. Underhill, for defendants in error.
   Bartley, C. J.

In regard to this bill, notice of non-payment was-all that was necessary to charge either the indorser or the makers. The instrument of protest was not essential to the proof of demand and notice. According to the decision of Case v. Heffner, 10 Ohio, 180, and McMurchy v. Robinson, Ib. 496, protest for this bill for nonpayment was not essential for any purpose except the recovery off statutory damages. And according to the decisions of Bailey v. Dozier, 6 How. U. S. 23, it is not necessary *that the formal [538 protest be drawn up at the time the facts occurred, on presenting the bill, but may be drawn up afterward at the convenience of the notary. It does not appear in this case that the mistake in the certificate of protest attached to the bill and sent to the holder misled the parties as to the bill intended. Even an inaccuracy in the notice as to the description of the instrument, or the place where it is • lying, not calculated to mislead as to the bill intended, has been held to bo immaterial. Stockman v. Parr, 1 M. & W. 809; Bromaze v. Vaughan, 16 S. I. Ex. 10; Rowland v. Springett, 14 M. & W. 7; and it was competent to correct the mistake in the certificate o'f protest attached to the bill in this case at any time either before or after suit brought.

Motion overruled.

Swan, Brinkerhoee, Bowen, and Scott, J.J., concurred.


author: Brinkerhoff, J.

text:
    David W. Gould v. Libreas Brown and Robert Skinner.
    The defendants bound themselves to carry the United States mail for the plaintiff between Elyria and Cleveland, performing a daily trip each way from. December 12, 1853, until July 1, 1856, for the price of $50 per month, and also for a carriage and set of harness which were delivered to the defendants at tire date of the contract. The defendants entered upon tlieir duties under the contract, and carried the mail in pursuance thereof for about two and a half months, and then refused to perform the contract on their part any further. In an action brought by the plaintiff for such refusal, on a demurrer to the petition, Held—
    'That the stipulations of the parties respectively in the agreement stated are independent covenants.
    ’That the petition was sufficient, although it did not aver a'payment, or a tender of payment of the full amount due from the plaintiff to the defendants, according to the terms of the contract.
    In error to the district court of Lorain county.
    *There is a sufficient statement of facts in the opinion of the -court.

      S. Burke & J. Myres, for plaintiff in error.

      S. Burke cited 2 Parsons on Contr. 42, and notes on pp. 43, 44, 191; 1 Am. Railway Cases, 102; 13 How. 307; 2 Smith’s Leading Cases, 10; 14 Wend. 219; 5 Ib. 479; 1 U. S. Dig. 679; 1 Sand., with Williams’ notes, 318, 319; 1 Cowen’s Treat. 44, 45.

      H. D. Clark, for defendants in error,
    cited 1 Ohio, 341; 5 Ib. 492; 10 Johns. 205; 3 Ohio St. 338; 9 Mass. 83; Wright, 474; 1 Wend. 228; 5 Ib. 496.
   Brinkerhoff, J.

An action was brought under the code in the • common pleas of Lorain county, by the plaintiff in error against the defendants in error, on an article of agreement, which, so far as it is necessary to state it in order to an understanding of the case before us, is as follows:

“ This contract between Libbeas Brown and Robert Skinner of the first part, and David W. Gould of the second part, witnesseth, that said first parties agree to carry the United States mail on route 10,064, between-Elyria and Cleveland, performing a daily trip ■each way, from and after the 12th day of December, 1853, until the 1st day of July, 1856, at and for the jorice of fifty dollars per month; ¡and said party of the second part agrees, in consideration of the services above specified, to pay said parties of the first part the sum of fifty dollars per month, payable on or before the 10th day of • each and every month, at the store of'Mussey & Co., at Elyria, ■Ohio ; also, a carriage and a set of harness, which has been delivered, and is now in the possession, of the said first parties.”

*In his petition the plaintiff averred that he had delivered [540 to the defendants the carriage and harness mentioned in the agreement, and also had paid them the sum of fifty dollars; that defendants had entered on their duties under the contract, and had carried the mail in pursuance thereof for the period of two and a half months, to wit, until about the 25th day of February, 1854; and had then abandoned the contract, and from thenceforward had refused to perform the same. The defendants demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action, claiming that the plaintiff ought to have-averred a payment, or a tender of payment, of the full amount due-from him to them according to the terms of the contract. The common pleas, on hearing of the demurrer, gave judgment for the defendants. The plaintiff then appealed to the district court, which also gave judgment for defendants; and to reverse that judgment this petition in error is prosecuted.

Are the stipulations, on the part of the parties respectively in this- • agreement, dependent or independent? If they are independent, then the court below erred in sustaining the demurrer. This is a-question as to the intention of the parties to be collected in each particular case from a rational construction of their whole contract; and in case of agreements like this, where the intention of the parties, in regard to the dependence or independence of their respective-stipulations, is not readily apparent, the courts have long been accustomed to resort for aid to certain rules of construction which commend themselves to the reason, and have been uniformly sanctioned by wise judges. And among these rules none seems to be better established than the following laid down by Sergeant W illiams, in his note to Pordage v. Cole, 1 Wms. Saund. 319—that- “ where a covenant goes only to a part of the consideration on both *sides, and a breach of such covenant may be paid for in [541 damages, it is an independent covenant, and an action may be maintained for a breach of the covenant, on the part of the defendant, without averring performance, in the declaration.”

' An application of this rule to the case before us, shows the stipulations of this contract to be independent. The stipulation of the plaintiff to pay wages, at the rate of fifty dollars per month, for the services of defendants under the contract, does not go to the entire consideration for such services, but only to a part of it; fifty dollars-is not the whole consideration for a month’s services, but only a part -of it; for the carriage and harness, which, for aught we know, may have been very valuable, was a further consideration extra the fifty dollars per month, and applied to the whole period of service contracted for. 2 Parsons on Contracts, 41, note 1, and cases there cited

Ir_ the case of Betts v. Perrine, 14 Wend. 219, the contract sued on was in all respects analogous to that under consideration. In that case the defendant bound himself to labor for the plaintiff for three years; and the plaintiff agreed to provide him with a suitable ■ dwelling-house, and to pay him a certain sum per month every three months during the term. The declaration neither averred that the dwelling-house had been furnished or offered, nor that any ■wages whatever had been paid or tendered; and yet, on general .demurrer to the declaration, the court sustained the declaration, holding that the stipulations of the parties respectively were independent ; for a breach of any part of which, by either party, a compensation in damages might be recovered, without any averment of performance by the other party.

The judgment of the district court will be reversed, and the case 542] remanded for further proceedings. In the district *court the defendants may obtain leave to answer, and may set up, by way .of counter-claim, and receive a proper allowance for any damages they may have suffered by reason of the plaintiff’s delinquency in ,jthe pérformance of the agreement on his part.

Judgment accordingly.

Bartley, C. J., and Swan, Bowen, and Scott, J. J. concurred.


author: Bowen, J.

text:
    Samuel West v. Samuel C. Brown.
    'Demand of payment of a promissory note, made at an office in Cincinnati, where the maker received business calls, and directed them to be made (he having no other place of business in the city), is sufficient, though the same office was the place of business of other persons. .
    'jNotice of non-payment of such note, addressed to the indorser at his place of residence, out of the city, and put into the post-office by nine o’clock a. m. on the next'day after its dishonor, is sufficient, although the mail for the indorser's place of residence was, by the regulations of the post-office, closed daily at five o’clock a. m.
    In error in the Superior Court of Cincinnati.
    ‘The facts appear in the opinion of the court.

      Charles S. Bryrant, for plaintiff in error, made two points:
    1. That no demand was made upon Babcock, the maker of the note, or, if any, not such as the case required. The Bank of the United States v. Corcoran, 2 Pet. 121; The Bank of Columbia v. Lawrence, 1 Pet. 578, 584; 3 Kent. 95, 97; Story on Promissory Notes, secs. 235, 236; Chitty on Bills, 398, 400; Story on Bills, secs. 326, 351; McGruder v. Bank of Washington, 9 Wheat. 598, 600.
    *2. That there was no legal notice to the plaintiff in error, [543 served upon him, of the demand and non-payment of the note. Lawson & Covode v. The Farmers’ Bank of Salem, 1 Ohio St. 206; Nichols v. Webb, 8 Wheat. 326; Coore v. Calloway, Esp. 115; Smith’s Merc. Law, 94, 249; 2 Greenl., sec. 19; Rex v. Watson, 1 Campb. 215; Story on Promissory Notes, secs. 246, 320-323; Baily on Bills, 268, ch. 7, sec. 2 (5 ed.); Derbyshire v. Parker, 6 East, 3, 9; Story on Bills, secs. 288, 290, 392; Chitty on Bills, 203, ch. 10, 485; 9 Pet. Cond. 33; 1 Pet. 578, 583, 618; 4 Washington, 465; 12 Wheat. 559; 2 Story, 416; 1 Mason, 180; Lennox et al v. Roberts, 2 Wheat. 373; Lindenberger et al. v. Beall, 6 Wheat. 104; French’s Executors v. The Bank of Columbia, 4 Crunch, 141.

      Taft, Key & Perry, for defendant in error, made two points :
    ■ 1. That a demand of payment, made at an office in Cincinnati, where the maker of a promissory note met his customers and did business, is sufficient, though the same office was the place of business of other persons.
    2. That notice of non-payment, addressed to the indorser at his pilace of residence, and put in the post-office on the next day after the dishonor, is sufficient, although it was not put in till after 5 o’clock, A. m., the hour at which the mail of the day, for the indor.ser’s place of residence, closed.
    17 Ohio, 78; 1 Ohio St. 206.
   Bowen, J.

The suit below was on the following note :

“Cincinnati, Nov. 20, 1854.
544] “ Three months after date, I promise to pay to the order *of Samuel West, one hundred and fifty dollars, value received.
(Signed,) “Joseph B. Babcock.”
Indorsed: “ Samuel West.”.

The note was discounted by the defendant, and proceeds paid toBabcock, the maker. It was afterward left at the Union Bank for collection. Notice was sent by the bank to Babcock, some time-before it matured, that this note would fall due on the 23d of February, 1855, at said Union Bank.

Babcock resided in the eastern part of the city. He had no-place of business, exclusively his own. He was allowed to occupy the office of Mr. Harding, on Vine street, which was the place where he received business calls, and directed them to bo made. The business of Babcock, at the time, was that of a small vendor of pamphlets and periodicals, in the streets of the city. He had told persons that information left for him at Harding’s, would find him. The notary public states, that he went to the said office of Babcock, oh Vine street, between four and five o’clock p. m., on the-23d of February, and demanded payment of the note. He was told there were no funds there to pay, and that Mr. Babcock was out; -whereupon he protested the note for non-payment, and on the next day he put a notice in the post-office for West, the indorser, directed to him at Milford, Ohio. West received the notice on the 27th or 28th of February, post-marked Cincinnati, February 26. The notary says that he is confident that he mailed the notice to West before nine o’clock on the day after the protest, and that early business in Cincinnati, at that season of„the year, did not commence before seven or eight o’clock in the morning. Milford, is fifteen miles from Cincinnati, and it was shown that the mail was-545] closed, daily, for that place, *at five o’clock a. m., and that all letters put into the office after that hour, for Milford, would not go until the next mail; .that in this case the next 'mail day was Monday, the 26th of February. Sunday, the 25th, intervened, when there was no mail.

West was an accommodation indorser for Babcock.

The cause was submitted to the court below as to West, and a judgment found for the plaintiff, when the defendant moved the court to grant him a new trial, which motion was refused, and a bill of exceptions was tendered and allowed. Judgment was taken by default against Babcock.

Two points are relied on by the plaintiff in error to reverse the proceedings of the Superior Court.

1. That no such demand of payment was made of Babcock, the maker, as the case required.

2. That there was no legal notice of demand and non-payment served on West, the indorser.

1. This note was deposited with a bank for collection, and, according to the usage of bankers in Cincinnati, Babcock was personally notified of the place where, and of the time when the paper, would become due. Although no place of payment is designated in the note, yet as the maker and holder resided in Cincinnati, it was not unreasonable to require payment of it to be made at one of the banking-houses of the city. It was the manifest duty of Babcock to have taken up the note at the Union Bank, in compliance with the notice which he received for that purpose. But having failed to do that, the notary public called at his place of receiving customers, and formally demanded payment. It is said that the demand ought to have been made at his family residence, and could not be made elsewhere, as he had no well-established business office. It seems that he occupied a room at Harding’s, where he ^directed calls to be made, and where he received them, By [546 his own acts and declarations he authorized this place to be known as his office for transacting business. He apprised the public that he could be found there, that “ word left there would find him.” He claimed no other business location. He gave no directions or authority for calling on him, for business purposes, at, his residence. His desire was to have an office for doing business where he might conveniently and with certainty be found, and a selection of such place he accordingly made at Mr. Harding’s, where he was sought by the notary public, but, when applied for, happened to be out. The object of the visit, however, was fully explained to those who 'were found in the office. We are satisfied that reasonable diligence in this case was used by the holder of the note to obtain payment from Babcock, and that the claim that no demand of payment was ■made of him is not well founded.

2. Was West, the indorser, legally notified of the non-payment of the note? Ho lived fifteen miles from the city, and was entitled to have a notice put into the post office as early as the next day after protest, directed to him. This, the notary public says, was done. The duty of the holder of the note was terminated when he caused the notice to be seasonably deposited in the post-office. The mail for Milford, where defendant resided, was closed at five o’clock a. m. By that regulation, a letter mailed in business hours might be delayed one or two days in going to Milford, and still the notice be sufficient. In this case the protest was made on the 23d of the month; the notice was deposited in the post-office on the 24th by nine o’clock a. m. ; the 25th was Sunday, and the letter was not, in consequence, post-marked and forwarded until the 26th. On the 547] part of the holder of the note, we see in this no delay *or omission of duty which should defeat a recovery against the indorsers. See Lawson and Covode v. Farmers’ Bank of Salem, 1 Ohio St. 206.

The judgment of the Superior Court is affirmed.

Bartley, C. L, and Swan, Brinkerhoee, and Scott, JJ., concurred.


text:
    Isabel Weaver v. Noah S. Gregg.
    A sale, under the act “ to provide for the partition of real estate,” of an estate held in common, divests the wife of a co-tenant in' fee of the estate of her inchoate right of dower therein, and passes the entire estate to the purchaser.
    Petition for dower. Reserved in the district court of Pickaway county.
    There is a sufficient statement of facts in the opinion of the court.

      Hedges & Gradlebaugh, for the petitioner.

      Page & Renick, for the defendant.
   Brinkerhoff, J.

This is a petition for dower, filed in tt e common pleas of Pickaway county, appealed thence into the district court of that county, and by it reserved for decision here. The facts of the case are admitted to be substantially these:

In 1819 the plaintiff intermarried with her late husband, George Weaver, who, during the coverture, was seized as tenant in common of the one undivided fourth part of certain lands situate in said •county, and in the petition particularly described.

On the 22d day of October, 1840, proceedings under the .statute ^were commenced in the common pleas of Pickaway county, [548 to obtain partition of said lands; and such proceedings were thereupon regularly and duly had, and the commissioners appointed by the court to make partition having reported that the lands could not be divided without manifest injury to the premises, that the same were ordered to be sold by the sheriff. All which was done; the sale confirmed by the court; deed ordered and duly executed by the sheriff to the purchaser under whom the defendant now' ■claims; and the one-fourth of the net proceeds of the sale distributed •to George Weaver, the husband of the plaintiff.

The plaintiff was not made a party to these proceedings; and in August, 1848, George Weaver died.

On this state of facts the question is presented: Is the plaintiff now entitled to dower in the premises, notwithstanding the sale in partition ? or, on the other hand, was her inchoate right of dower extinguished by that sale?

As there is no reported case in Ohio which involves this question, it seems to be now for the first time presented to the court of last' resort in this state. Nor have we been able to find a case anywhere arising under a statute so nearly identical with our own as to entitle it to any decisive weight as a precedent. In Jackson v. Edwards, 7 Paige, 386, a case under the statutes of New York on the subject •of partition, and in which the wife had been made a party to the proceeding, the chancellor held that the wife’s inchoate right of dower was divested, and passed by the sale. But the phraseology of the New York statute differs in important particulars from that of our own; and moreover, when the same case was before the court •of errors on appeal (22 Wendell, 498), the only members of the court who delivered opinions in the case differed on this point, and the case finally went off on other questions. We are *there- [549 fore thrown back upon the light of general principles, and the particular provisions and policy of our own statute.

Dower is not the result of contract, but is the creature of positive law, founded on reasons of public policy, and subject, while it remains inchoate, to such modifications and qualifications as legislation, for like reasons of public policy; may see proper to impose. ' Eliza Moore v. The Mayor, etc., of the city of New York, 4 Selden, 110; in which it was held, that “ where, in pursuance of an act of the legislature, lands are taken by a municipal corporation for public use„upon an appraisement and payment of their value to the holder of the fee, the corporation acquires an absolute title to them, divested of any inchoate right of dower existing in his wife.” See also 3 Ohio, 24.

If, however, we were to consider dower as resulting from, and embraced within the implied terms of the marriage contract, still it must be held to be limited by such boundaries, and subject to such incidents as are affixed to it by laws existing and operative at the time of the marriage.

The plaintiff married her late husband in 1819; and, since the-year eighteen hundred and four, statutes, authorizing any joint tenant, tenant in common, or coparcener, to compel partition, and to compel a sale of the undivided estate,, in case the same proved to be incapable of actual partition without manifest injury to the estate, have been in force in Ohio, with provisions substantially similar, in this respect, to that now in force, and under which this-sale was made.

This act (of February 17,1831) provides for the appointment, by •the court of common pleas to which the petition for partition shall be addressed, of three disinterested freeholders, to make partition of the estate; that if they shall be of opinion that the same can not 550] be divided ^without manifest injury to the value thereof, they shall -return to the court a just valuation of the estate; that either of the parties may thereupon elect-to take the estate at such valuation; and, on failure of any such election, that the court may order the sheriff to make sale of the estate as under judgment and execution, so that the same be not sold for less than two-thirds of the aforesaid valuation ; that, on an approval of such sale by the court, the sheriff shall execute a deed to the purchaser, and the proceeds of the sale “ shall be distributed and paid by order of said court, to and among the several parties entitled to receive'the same, in lieu of their respective parts and proportions of said estate or estates, according, to their just rights and-proportions.”

Now, in case of a sale as provided for in this statute, where the husband is the owner of the fee, and the wife has but a contingent right of dower, how, and to whom, is this distribution of the proceeds of the sale of the estate made ? Always, in practice, so far as we know, it is made to the husband, and to him alone. And we think properly; for he is the sole representative of the estate. She has a contingent possibility of interest in it, which may be released, but no property, no actual interest in it which is the subject of grant or assignment. Miller’s Adm’r v. Woodson, 14 Ohio, 518. Nor is the value of her possible and contingent interest capable of estimate with any degree of accuracy. Moore v. Mayor, etc., of New York, ubi sup. And, on this point, we may consider the rule of distribution-as settled by the universal and unvarying practice.

Dower, then, being' a creature of positive law, and, as such, subject to legislative modification, limitation, and qualification, the question before xis is one of legislative intention. Did the general assembly, in providing for *the sale of estates in- proceedings [551 in partition, intend that the entire estate should pass to the purchaser divested of a wife’s inchoate right of dower?

In seeking for the intention of the legislature on this point, and in the absence of any clear and decisive expression of that intention in the •language of the statute, it seems to us that the maxim, argumentun^ ab inconvenienti plurimum valet in lege, very properly and forcibly applies ; for, “ if the words used- by the legislature have a necessary meaning, it will be the duty of the court to construe the clause accordingly, whatever may be the inconvenience of such a course. But, unless it is very clear that violence would be done to the language -of the act by adopting any other construction, any great inconvenience'which might result from that suggested may certainly afford fair ground for supposing that it could not'be what was contemplated by the legislature, and will warrant the court in looking some other interpretation.” Broom’s Legal Maxims, 140, 141.

To apply this maxim to the case before us, let us suppose two coparceners, each the owner of an equal undivided half of an estate inherited from a common ancestor. One of them has a wife, the other is unmarried. One of them petitions for jiartition of the common estate, which is found to be incapable of actual partition, and is ordered to be sold. It is understood to be the settled law that the inchoate right of dower of the wife is not divested by the sale. The consequence is, inevitably, that the estate must be sold for much less than it would otherwise have brought. Yet, on the distribution of the proceeds of the sale, the husband comes in for an equal share; and the loss, consequent on’the existence of the contingent incumbrance, falls alike on the unmarried and married coparcener. This is a necessary result; and it is not only inconvenient, but 552] grossly unjust; too inconvenient and too *unjust to permit us to suppose it to have entered into the intention of the legislature.

We are of opinion, therefore, that it was the intention of the legislature, by a sale in partition, to divest the wife of her inchoate right of dower. In so holding, we do not subject this right at all to the will or caprice of the husband. The sale is the act of the law, designed-to do justice to joint owners, and render estates available, and put forth only when, from the fact that the estate • is incapable of actual partition, the necessities of the case require it The legislature has deemed it more important to the public interest to render estates available to their owners without sacrifice of their value, by a sale in case of necessity, than to preserve in all cages-whatsoever the wife’s remote and contingent interest, at the expense of parties on whom she can have no proper claim.

The fact that the wife was not a formal party- to the proceeding in partition, does not, we think, at all alter the case. The terms of the statute do not require that she should be made a party, and we see no good reason why it should be required.

On the whole, our view of the question is this

The right of dower in the wife subsists in virtue of the seizin of the husband; and this right is always subject to any inGumbrance, infirmity, or incident, which the law attaches to that seizin, either at the time of the marriage or at the time the husband became' seized. A liability to be divested by a sale in partition, is an incident which the law affixes to the seizin of all joint estates ; and the inchoate right of the wife is subject to this incident. And when the law steps in and divests the husband of his seizin, and turns the realty into personalty, she is, by the act and policy of the law, remitted, in lieu of her inchoate l’ight of dower in the realty, to her 558] inchoate right to a distributive *share of the personalty into which it has been transmuted.

Petition dismissed.

Bartley, C. J., and Swan, Bowen, and Scott, JJ., concurred.


text:
    The Protection Insurance Company v. James Wilson & Co., Who Sue for the use of Samuel Kuhn and others.
    Insurance brokers, holding an open policy of insurance for themselves and whom it may concern, may, in case of damage to property covered by their policy, maintain, in their names, an action for the use of the owners, although the latter are not named in the policy, if it sufficiently appear that the insurance was procured for their benefit.
    Where the printed -terms of an open marine policy are for perils of seas, rivers, fire, and overpowering thieves, and the insurance company, by its agent, indorses thereon “$2,000 on cargo, canal-boat Ben. Franklin, at and from this port, per Miami and Wabash canals, to Covington, Ind., and landed, at 3-8, $7.50,” the policy, by the indorsement, covers the ordinary risks of canal navigation.
    Error to the district court of Hamilton county.
    The original action was brought on a policy of insurance in the name of Wilson & Co., for the use of parties whose goods were shipped by J. A. Shaw & Co., at Cincinnati, September 14, 1849, on the canal-boat Ben. Eranklin, consigned to said owners at points on the Wabash canal, in Indiana, being insured by the plaintiffs in error under the following circumstances :
    Wilson •& Co., acting in the capacity of insurance brokers, and for the Protection Insurance Company, received from the latter an open policy, whereby they were held out to be insured “for themselves, or whom it may concern, on all shipments, in the sums hereinafter specified, when indorsed *on the back of this policy [55á by Samuel E. Mack, agent at Cincinnati; beginning the adventure upon said property, as per indorsement, and to continue during the voyage, and until safely landed as per indorsement.”
    The perils assumed are stated in the printed part of the policy, and are in these words :
    “ Touching the perils which the said insurance company are content to bear, and take upon themselves in the premises, they are of seas, rivers, fire, jettison, enemies, pirates, overpowering thieves (and no other thieves), and restraint and detainment of all kings, princes, and rulers.”
    The blank used was the ordinary cargo policy upon river risks.
    Shaw & Co., it appears from the bill of lading, shipped as forwarders and commission merchants, various consignments of goods on the Ben. Franklin, and applied to Wilson & Co. for insurance upon cargo. The boat was inspected and approved by the proper agent of the insurance company, and the premium was paid, as appears by the following receipt, made by Wilson & Co., for the plaintiffs in error:
    “ Received, Cincinnati, September 14, 1849, of J. A. Shaw & Co., six 25-100 dolls, premium, for insuring two thousand dollars, on .cargo of C. B. Ben. Franklin, from Cincinnati to Covington, Ind. Jas. Wilson & Co., per Woods, for Hartford- Protection Insurance Company.”
    Thereupon the following indorsement was put upon the policy by. Samuel E. Mack, the agent, the back of the policy being thickly covered over with other like transactions, all headed “ Insured 1849.”
    “ $2,000: — On cargo C. B. Ben. Franklin, at and from this port, per Miami and Wabash canals, to Covington, Indiana, and landed at §=$7.50. Sam’l E. Mack, Agent.

    “Cincinnati, Sept. 14, 1849.”
    555] *The bill of lading of this cargo shows that there was “shipped Sejitember 15, 1849, in good order, etc., by John A. Shaw & Co., forwarders and commission merchants, on board canal-boat Ben. Franklin, the following property, to be delivered as consigned below.” Then follows numerous consignments, among which are three to Kuhn & Wood and M. Amberg, the parties for whose use the action is brought. -At the foot of the bill of lading is the following instruction to the consignees : “Insurance taken on cargo with agency in this city, of the Hartford Protection Insurance- Company, for $2,000. In case of’ accident, don’t neglect getting protest immediately and sending to the office here.”
    The boat proceeded north, and, while on the Miami canal, in a descending lock, between Bremen and St. Mary’s, the back floodgate being broken, the boat, as she sunk.below its level, was deluged by the water spouting from the flood-gate into' her stern hatch. The master and hands testify that this defect of'the gate, being under water, could not be detected as they went into the lock. Ten or twelve hands were set to work without loss of time, to force open the front gates of the lock, and the boat was pumped out immediately after being extricated from her situation. No injury to the cargo was suspected, but on arrival at their destination it was found that three consignments above mentioned, consisting of dry goods, were damaged by the water. The nature and amount of this injury, as well as the ownership and interest of the parties for whose use the action was instituted, are snown by the depositions attached to the bill of exceptions.
    TTpon these facts judgment was given for the plaintiffs in the court below, and again in the district court upon appeal.
    *The plaintiffs in error have assigned as reasons why the [556 judgment of the district court should not stand :
    1. That neither the plaintiffs below, nor Shaw & Co., had an in surable interest in the loss.
    2. That this particular insurance was not made for the parties for whose use the plaintiffs sued.
    3. That the loss was not by a risk or cause within the terms of the policy.

      Lincoln, Smith & Warnock, for plaintiffs in error,
    made the following points:
    1. There was no evidence that either James Wilson & Co., or John Shaw & Co., had any interest in these goods at the time of loss, and this was necessary to enable the plaintiffs to recover for their own benefit, for no plaintiff can recover in an insurance case unless he has some interest in the property insured. 2 Duer on Ins., sec. 22; Howard v. Albany Ins. Co., 3 Denio, 303; Murdock v. The Chenango Co.; M. Ins. Co., 2 Comst., 216; 2 Philips on. Ins. 661; The Sadlers Co. v. Babcock, 2 Ark. 554; 2 Kent’s Com. 371; Hobbs v. Memphis Ins. Co., Sneed, 450.
    2. There was no evidence that the policy was taken out for the benefit of those parties for whom suit was brought.
    3. The loss was not covered by the policy. No one of the terms used describes this loss, nor does it fall under any of them. They are “ seas, rivers, fires, jettison, enemies, pirates, overpowering thieves, and restraints and detainments of kings, princes, and rulers.”
    Now, these terms have a distinct and well-defined meaning, and nothing in this case falls within them.
    They are found in the printed part of the policy, and are there because the form of a river policy seems to have *been used, [557 and these terms, by mere inadvertence, not stricken out; and as they can have no possible bearing uj>on such a risk, they will not be considered. Clearly the dangers of the river are very different from the dangers of the canal, if any such there be; and unless the court can call the canal a river the plaintiffs can not recover. This can hardly be. Not even the “raging canal” could be-considered as a sea or river, and it is only by so considering it that there is even a pretense of a right of recovery on the part of the plaintiffs below.
    It is not uncommon, where blanks are thus used, that words are found in these contracts which were not intended to apply to the contract, and they are, therefore, disregarded.
    Many cases of the kind are to be found, and the courts have never considered that a reason for changing the rules of law, or for construing the instruments differently from other instruments of the kind. Mumford v. Hallett, 1 Johns. 443.
    That parol proof is not competent in such cases to explain, see Bryant v. Ocean Insurance, 22 Pick. 250; Whitney v. Haven, 13 Mass. 172; Alsten v. Mechanics’ Mut. Ins. Co., 4 Hill, 329; Glendale Manf. Co. v. Prot. Ins. Co., 21 Conn. 19; Kennedy v. St. Lawrence County Mut. Ins. Co, 10 Barb. 286.

      King & Anderson, for defendants in error,
    submitted the following points:
    1. A general policy, for “ whom it may concern,” denotes agency, and will cover the interest of any principal for whose benefit the agent can be shown, dehors, to have been acting when he effected the insurance, whether his name was disclosed or not. And the ordinary shipping papers and communications, at the time, between 558] the *agent and principal, are the proper evidence as to the intention of the parties. We accede cheerfully to the authority of Newson v. Douglass, 7 Har. & Johns. 451, which plaintiffs in error have cited.
    2. Such principal is entitled to recover in the name of the agent or subagent to whom insurance was so made. Arcangelo v. Thompson, 2 Camp. 620; Rider v. Ocean Ins. Co., 20 Pick. 259; Buck v. Chesapeake Ins. Co., 1 Pet. 151.
    3. A general marine policy, purporting to insure all shipments indorsed upon it, “as per indorsement,” and indorsed with an adventure per Miami and Wabash canals, until safely landed, covers the accidents and -perils of canal navigation, though the printed enumeration in the body of the policy is of the “ seas and rivers,” «te., only, without mentioning “ canals.” Perrin’s Adm’rs v. The Protection Ins. Co., 11 Ohio, 147; Boehm v. Combe, 2 Mau. & Sel. 142; Moore & Porter v. The Perpetual Ins. Co., 16 Mo. 98; 1 Phil Ins., secs. 36, 68; 20 Ohio, 199.
    4. That the flooding of a canal-boat, while in a lock, by the rush of water from the flood-gate behind, is a disaster to the boat, for the effects of which upon the cargo, the insured have aright to' recover.
   Bowen, J.

The parties who sued in this case were nominal plaintiffs only. They had been agents intrusted with the business-of taking risks upon property against the perils of transportation, of fire, and of thieves. For the purpose of executing this agency, they received from the insurance company an open policy to- themselves or whom it might concern,”' which became operative-by the indorsement of Samuel E. Mack, the agent of the company, to the extent named by him. Shaw & Co. were forwarding *merchants, and in behalf of the owner of the goods applied [559 to the plaintiffs below to insure them in the usual form. The bill of lading showed that Kuhn and Rumsey, Kuhn and Wood, and M. Amberg, for whose benefit the suit was brought, were owners-of portions of the goods. Wilson & Co., in perfecting this insurance, were the agents of the several owners of the cargo. They acquired and held an interest for them to the amount covered by the insurance. They stood in the light of the mutual agents of the insurers as well as of the insured. Shaw & Co. were interested' only in shipping the goods to their owners, and in procuring for them the insurance which was desired. They acquired no insurable interest Ib-emselves, nor any right to sue. But Wilson & Co. occupy quite a different relation to the consignees. They procured and held, in their own names, but for those whom it might concern, the policy and its indorsement. An interest, covered by the insurance, was thus created, which it is proper for them to enforce, and which is of such a nature as authorized the suit to be brought and carried on in their names for the use of those who have sustained' the loss. The record discloses that the object of this policy was to-insure the persons for whose use the suit is brought, as well as-others who are named in the bill of lading.

The action being, as we think, properly brought in the names of Wilson & Co., the remaining question to determine is whether the loss is covered by the policy.

It is contended, for the plaintiffs in error, that there is nothing; in the risks assumed, coveting the loss or damage sued for; that the policy should be construed to cover only loss by fire. The words .sens and rivers, employed in the policy-, do not, it is urged, include nor relate to canal navigation.

Contracts of this class must be construed, like all others, *in reference to the objects which brought them into life — the inducements which led to their formation. We must ascertain what the parties to them intended, as well by the words which they use to •express their intentions, as the circumstances which attend and influence the making of such instruments. To carry out faithfully the design which governed the parties in forming them, is what the •courts constantly aim to accomplish.

The plaintiffs in error undertook to bear the perils of seas, rivers, fire, enemies, and overpowering thieves, on all shipments when indorsed on the back of the policy by their agent; and to begin their .adventure upon the property, as per indorsement of said agent, .and to continue it during the voyage.

Here we have the express sanction of the plaintiffs to their agent, to accept the adventure by his indorsement; to fix the rate of premium ; to determine the point at which the risk shall commence, and to continue it till the cargo is safely landed. He is authorized to insure the whole voyage, not against fire merely, but against all of the casualties enumerated; not by sea or rivers only, but by ■canals or other channels of transportation. He is a general agent with general and unrestricted powers. He may, by his indorsement,'enlarge or limit the perils of his principal. He is selected for that purpose; intrusted with the duty of deciding for them whether to take the proposed risk or to decline it; whether to accept it as to part or as to all of the enumerated perils ; and, finally, to complete such valid obligation between the parties as the plaintiffs could, in any other form, adopt.

This agent, who must be supposed to have understood his duty and ■to have acted in strict accordance with the wishes of the plaintiffs (for ■th ere is nothing appearing in the record to th e con trary), did i ndorse 561] his aceejffance of *th'e risk on the canal-boatBen. Franklin, from Cincinnati to Covington, Indiana, hy the Miami and Wabash canals. That was a usual and regular water communication between those places, navigated by canal-boats. Another route, partly by river .and partly by canal, might have been adopted, but this one was preferred by the consignors. They proposed it to the agent and it. was accepted.

This policy was dated August 24, 1849, and from that time became effective as an open policy in the hands of Wilson & Co. There are ten indorsements preceding the one in question made by Mack, the agent, on other cargoes, and in behalf of other owners of goods shipped by canals. Between that time and the 10th of November, 1849, there- are some forty other like indorsements, nearly all of which are for risks by canal. Some of them extend the risk to lake and river as well as to canal navigation. There is. no limitation of risk in any of them to some of the specified dangers. The idea of making such limitation does not seem to have been entertained at the time, nor to have influenced, in any degree, the action of the agent in taking risks. And, if we are to look at the business transacted by him for the company, we must infer that it 'consisted, principally, in the insurance of voyages by canal-boats. Not only is this true, but the further inference is forced upon our minds that the insurance company intended to apply its policy to canals as well as to rivers and seas. The location of their agent at a point from which shipments of freight were made and received by canals, and over whose waters an extensive commercial intercourse was kept up with various cities and towns, near to, as well as distant from, Cincinnati, indicates that the plaintiffs designed to compete for and obtain benefits which are derivable from that class of business. The very indorsement made on tho policy, by the plaintiff, at the time of issuing *it to Wilson [562 & Co., shows this to have been the intention. Its language is this : “ Open cargo, steamboat and canal; Protection Insurance Company, Hartford, Conn. James Wilson & Co., for selves and whom it may concern. No. 10,733.”

But again, how did the consignors understand this policy, with the agent’s indorsement thereon ? They were about to forward over a long line of canal a quantity of merchandise belonging to-different owners. The dangers of such a voyage must have been well understood. They consisted principally in damage from water. The risk of fire to a canal-boat is too small, of itself, to induce men who are even over-cautious in their business affairs, to give much attention to it, while with the combined perils of water, fire, enemies, and thieves, for urgent considerations for seeking protection by insurance. The fear of accidents which are peculiar to the mode-of transportation adopted, and are quite likely to occur, is what stimulates the prudent and safe business man to obtain an insurance upon his property which is to undergo such perils, if Shaw & Oo. had been told by Mack that the policy which they proposed to purchase for their consignees, would apply to and cover only loss by fire, can it be supposed that they would, for that purpose, have accepted it ? A most natural answer to such a suggestion would have been, that they expected the cargo, though sent by canal, to be protected against all of the dangers incident to the voyage, which are not expressly excepted — that for such an unimportant •purpose, as protection against loss by fire, their consignees did not desire to contract, and the acceptance of the policy would, therefore, be declined. It is too obvious to admit of doubt that they intended to obtain insurance agaiust all of the enumerated perils; ■that the agent, by his indorsement, intended, to confer that kind of 563] insurance, by enlarging the terms of *tho policy; and that the plaintiffs had, designedly, vested him with power to execute such policies.

We can not, therefore, resist the conclusion that the intentions of the parties, in making this contract, were to insure and to be■come insured for the voyage by canal, against all of the perils to it of a corresponding character with those of seas and rivers, which .are incident to transportation by canal. Wherefore, we are of ■ opinion that there was no error committed by the court below.

Judgment affirmed.

Bartley, C. J., and Swan, Brinkerhoee, and Scott, JJ., concurred.