text:
    Burgner v. Humphrey.
    1. If the owner of land grants a lease whereby he conveys all the underlying mineral coal, with the right to mine and remove the same, the lessee will not he entitled to remove the whole of the coal without leaving support sufficient to maintain the surface in its natural state, unless the language of the instrument clearly imports that it was the intention of the lessor to part with the right of subjacent support.
    2. B. made a contract of lease, and thereby sold and conveyed all the mineral coal in, under, or upon his farm, to H. & C., or their assigns —the lessees to pay ten cents per ton for each ton of coal mined and removed from the land. It was agreed by and between the parties to the lease “ that no mining operations by the parties of the second part, their heirs or assigns, shall extend to, or be so near the dwelling house or barn now upon said land, as to injure said buildings.

      Held: 1. That the coal under the buildings was exempt from the mining operations provided for in the lease.
    2. That the lessees were not only liable for damage done to the buildings, by mining and removing coal from under the same, but, the lessor was entitled to recover the net value at the mine, of all coal so mined and removed, at the time of its removal, irrespective of the price put upon other coal by the terms of the contract; and it was error in the court to exclude evidence offered by the lessor, to prove the quantity and value of the coal so mined and removed from under the buildings.

      Error. Reserved in the District Court of Summit, County.
    The original action was commenced November 7, 1878, by the plaintiff in error, Samuel Burgner, against the defendants in error, Julius Humphrey, William B. Coleman, and the Norton Coal Company, in the court of common pleas of Summit county. The action was founded on a written agreement, which reads as follows:
    “ This agreement, made and entered into this 10th day of September, 1866, by and between Samuel Burgner, of the township of Norton, county of Summit, state of Ohio, of the first part, and Julius Humphrey and William B. Coleman, of the state of Ohio, of the second part, witnesseth: That for the consideration of one dollar in hand paid by the said parties of the second part to the said party of the first part, the receipt of which is hereby acknowledged by the said party of the first part, and in consideration of the further covenants, agreements and stipulations hereinafter mentioned on the part of the said parties of the second part, the said party of the first part hereby bargains, sells, transfers, aliens and conveys unto the said parties of the second part their heirs and assigns, all the mineral coal, iron ore, limestone,- and all the other minerals, together with all the rock or petroleum oils and salines in, under or upon the following described tract or parcel of land, situate in the township of Norton, county of Summit, state of Ohio, bounded and described as follows, to wit: Being the south part of lot 73 in said township bounded south, east and west by the lines of said lot, and north by a line parallel to the south line of said lot, and far enough distant therefrom to contain 110 acres of land. Being the same land upon which Burgner now resides. And the said party of the first part also hereby further gives, grants and conveys unto the said parties of the second part, their heirs and assigns, as well as their workmen and laborers, the right, privilege and license to enter upon the above described lands at any and all times hereafter, and .search and explore thereon for said mineral coal, iron ore, limestone, clay and other minerals, oils and salines, or for any of them, and when found to exist on said lands, to dig, mine and remove the same therefrom, together with all and singular, the rights, privileges, licenses and easements necessary or incident, or in any wise appertaining to the proper prosecution of the business of mining and removing any or all minerals and substances aforesaid, and also the right of way for all necessary roads and railroads over any portion of said lands, and the right to erect thereon all necessary structures, buildings and fixtures of every kind necessary in the proper prosecution of said business; and the right to occupy a sufficient area of the surface of said land for stocking and storing the said coal, ore, limestone, or other substances, and the refuse therefrom, and the right to remove and transport the coal and other minerals from other lands over or under the land described during the continuance of this agreement; for and in consideration of which the said parties of the second part hereby agree and bind themselves and their heirs, executors and assigns, to enter upon said lands within one day from the date hereof, and make.search and exploration thereon for said mineral coal, iron ore, clay, limestone, and other minerals, oils or salines, unless satisfied from examination of lands adjoining or in the vicinity, that said exploration will be fruitless; and if the same or any of them be found to exist thereon in sufficient quantities and under such circumstances as to warrant the said parties of the second part, their heirs or assigns, in digging, mining and removing the same, then, and in that case, the said parties of the second part agree and bind themselves, their heirs, assigns and legal representatives to pay the said party of the first part, his heirs, legal representatives or assigns, the sum of ten cents per ton for each ton of 2,000 pounds of mineral coal mined and removed from said land as ¿merchantable coal, and other minerals according to the bills of the diggers, but not to include slack or fine coal, which said parties of the second part are to have the privilege of removing and selling free of charge, and the sum of ten cents per ton as above, for each ton of iron ore mined and removed therefrom, and the sum of ten cents per ton for each ton of clay mined and removed therefrom, and one-twentieth part of the net proceeds of any and all other minerals, oils and salines taken or procured from said lands by said parties of the second part, their heirs, legal representatives and assigns. And it is also agreed by and on the part of the said parties of the second part, their heirs, legal representatives and assigns, that so long as this lease shall be held by the said party of the first part, his heirs, executors, administrators or assigns, after the expiration of one year from June 2, 1866, a sufficient quantity of the said minerals, or one of them, shall be mined each year, to amount at the rate above mentioned to the sum of one hundred dollars, or that the same shall be paid to the said party of the first part, his heirs, legal representatives or assigns, the same as though a quantity of one or more of said substances had been mined sufficient to amount at the rate aforesaid to said sum. But all sums thus paid for any year in pursuance of this stipulation, and not applied in payment of any such minerals actually mined, shall be applied in payment of that subsequently mined, so far as the same will pay therefor at the rate aforesaid. It is mutually agreed that said parties of the second part shall have the privilege of cancelling and surrendering this lease at anj^ time upon payment of the amount due thereon at that time. It is also further agreed by the parties hereto for themselves, their legal representatives and assigns that all payments to be made hereunder shall be made annually, counting from the 2d day of June,-1866. (It is also agreed that the correctness of the scales and weighing of said coal and other minerals, and the books showing the weight thereof, and other minerals mined shall be open at all times during business hours to the inspection of the said party of the first part, his agents, legal representatives and assigns.) It is also agreed that no mining operations by the parties of the second part, their heirs or assigns, shall extend to, or be so near the dwelling house or barn now upon said land as to injure said buildings. This lease is made to protect and make more full a lease between the parties hereto entered into the 2d day of June, 1864. In testimony whereof the parties hereto have hereunto set their hands and affixed their seals the day and year first above written.
    Julius Humphrey,
    Samuel Burgher,
    Wm. B. Coleman.”
    Under this lease mining operations were carried on by the defendants, or some of them, until about the commencement of this' action.
    In his petition, the plaintiff sets forth four causes of action.
    In the first cause of action, plaintiff avers that the defendants, under the lease, mined and removed from the land over 125,000 tons of good, merchantable coal, of 2,000 pounds each, estimating the same at miners’ weights, or according to the bills of the diggers, for which he was entitled to receive under the lease $12,500; that defendants have paid plaintiff a sum not exceeding $5,000, for all the coal mined since the date of the lease, and that the defendants have neglected and failed to'keep proper and accurate accounts of coal mined under the lease; that they have not kept said diggers’ bills or any true copies thereof; that the accounts, books and memoranda of said defendants, relating to the mining of said coal are, and have been from the commencement of said lease false, fraudulent and grossly inaccurate, and that said accounts of said defendants do not show the true amount of coal mined from plaintiff’s premises by the defendants; and that said accounts were so kept for the purpose of cheating and defrauding the plaintiff in the premises; and the plaintiff further avers that the original bills of the diggers for the coal mined, and also other original memoranda and statements showing the amount of coal mined by the miners have been destroyed by the said defendants for the purpose of cheating the plaintiff; and the said original memoranda, miners’ weights and bills of the diggers are not and have not been accessible to the plaintiff by reason of their destruction as aforesaid. The plaintiff further avers, that said Norton Coal Company is incorporated under the laws of Ohio; and that the said Julius Humphrey and William B. Coleman are members of said company, and have been since its organization; that on or about the 23d day of September, 1866,. the said Humphrey and Coleman in writing assigned said lease to the said Norton Coal Company; but, that the plaintiff was not consulted in the making of said assignment, nor has he at any time given his assent thereto, or released said Humphrey and Coleman, or either of them, from the terms of said contract.
    The second cause of action was for wrongfully extending the mining so near the dwelling house and other buildings as to injure them in violation of the provisions of the lease.
    Plaintiff in his third cause of action avers that the defendants wrongfully, negligently, carelessly and improperly conducted their mining operations, and so excavated the earth and removed the coal from said land as to cause the surface of said land in many places to sink down in deep holes whereby the same became and was greatly damaged.
    That the amount of land so destroyed by falling in, embraces about sixteen acres, and that the same by reason of, the premises has been rendered unfit for cultivation or plowing ; that by reason of the careless, wrongful and improper manner in which the said work was prosecuted by the defendants, the plaintiff has been damaged in the sum of $3,000.
    In his fourth cause of action, the plaintiff seeks to recover pay for the coal mined under the buildings at the rate of fifty cents per ton.
    The answers of the defendants aver that, of all the coal mined and removed, a correct account thereof was kept, and the books showing the weight of the coal mined and removed from said premises have been open to the inspection of the plaintiff at all times; said books showing the amounts mined by each digger and allowed in his bill, and that the plaintiff has been annually settled with by the defendants and paid the sum of ten cents for each ton of 2,000 pounds mined and removed from said premises as merchantable coal according to the bills of the diggers in pursuance' of the terms of the lease.
    The defendants deny every charge of fraud contained in the petition, and insist that the books are correct, showing the bill of each digger.
    The defendants deny the averments of the second cause of action except that they mined coal under the barn, but say that that was done with the knowledge of the plaintiff, and that he has received full compensation therefor.
    In answer to the third cause of action, the defendants deny that they wrongfully, negligently, carelessly and improperly conducted their mining operations, but on the contrary say, that the mining and removing of said coal has been done in a careful, workmanlike manner; that if any injury resulted to the surface therefrom, such injury is only the ordinary and natural injury that would arise from the mining and removing of said coal.
    To the averments in the fourth cause of action, the defendants interpose a general denial.
    To the defendants’ answer, the plaintiff replied by a general denial.
    The plaintiff, to sustain the issues on his part, and to maintain the allegations contained in the first cause of action of his petition, offered the testimony of a civil and mining engineer, and of coal miners, to show the thickness of the vein of coal of said farm, the number of acres actually mined and taken away by the defendants; the size, length, breadth and depth of the rooms in said mines, and the number of tons per acre for each and every acre so mined, excavated and removed by the defendants of good merchantable coal, and that in fact the coal actually mined was much greater in amount than shown by the books of the defendants. To all of which testimony, the defendants by their counsel objected, which objection was overruled, and the court thereupon allowed the said evidence to go to the jury, for the purpose of showing that the books and diggers’ bills and weights kept b}^ the defendants in their books and otherwise, were fraudulently kept or grossly inaccurate. And the court then and there cautioned the jury, that the said evidence was not permitted to go to them for the purpose of showing the quantity of coal actually mined as against the books and bills of the diggers kept by the defendants, but for the purpose of impeaching said books for fraud or gross inaccuracy, unless, in the event that such books and diggers’ bills were impeached for fraud or gross inaccuracy, when, the jur}^ might consider the evidence offered, to determine the quantity of coal mined. To which decision and direction of the court, so limiting said evidence, the plaintiff by his counsel then and there excepted.
    The plaintiff, to further maintain the action on his part, and to maintain the issues of his third cause of action, offered evidence to show that the defendants in mining and removing said coal under their said lease, also removed all the pillars, ribs of coal, and supports whereby the surface was supported, and that by reason of the removing of said pillars, ribs of coal and supports, the surface of the ground caved in, swagged, and fell in deep holes, whereby the said surface of the plaintiff’s land was greatly damaged, and was thereby rendered wholly unfit for plowing and cultivation. And thereupon the defendants, in answer to the claim for damages on said third cause of action, introduced witnesses, and offered to prove by them, that the mining and removing of said coal was done in a careful and prudent manner, and in accordance with the best and most approved method of mining and removing coal, and that it was the approved method of mining coal, to mine and remove all the coal without leaving pillars, ribs, or supports for the surface, and that the defendants mined coal from the plaintiff’s said premises under said lease, and removed said pillars and supports in a careful and prudent manner, and in the best and most approved method. To all of which evidence showing or tending to show such approved method of mining, by which the pillars and ribs of coal were drawn, and all supports of the surface removed, the plaintiff by his counsel then and there objected, on the ground, that the plaintiff was entitled to have the surface supported by sufficient pillars, ribs and supports to keep it up, and that such method would not be reasonable, and could not be shown to deprive the plaintiff of his right of surface support. But, the court overruled said objection, and admitted said evidence, to which decision of the court in overruling said objection and admitting said evidence, the plaintiff by his counsel then and there excepted.
    The plaintiff produced a witness, and offered to prove the allegations contained in his fourth cause of action as to the quantity and value of the coal mined and removed from under the barn and dwelling-house, contending that such coal was exempt from the mining operations provided for in the lease, and that its value was not fixed by the price put upon the other coal mined under the lease, but, the defendants objected to the introduction of any evidence by the plaintiff in support of said fourth cause of action, which objection was sustained by the court, and the plaintiff was not allowed to offer any evidence in support of the allegations in said fourth cause of action. To which decision of the court, excluding said evidence, and all evidence under said fourth cause of action, the plaintiff by his counsel thereupon excepted.
    The court thereupon proceeded to charge and instruct the jury. And the plaintiff then and there excepted to all that part of said charge and instruction, in which the court uses the following language, to wit: “ I say to you further, that unless this mode pointed out in the contract for determining the weights and the amount to be paid be impeached for fraud, then the contract must prevail, and must determine the rights of the parties.”
    And the plaintiff further excepted to all that portion of the charge of the court in which the jury were instructed, that unless the books and diggers’ bills kept by the defendants were first impeached for fraud, the jury must take such diggers’ bills exclusively to determine the quantity of coal mined, and that all the other evidence in the case bearing upon or tending to show the quantity of coal mined, must be taken and considered exclusively for the purpose of showing whether the diggers’ bills and the books of defendants were or were not honestly kept.
    And thereupon the jury found a verdict, together with special findings, as then and there directed by the court. Under the 1st cause of action, the jury found for the defendants; under the 2d cause of action, for the plaintiff, and assessed his damages at $500; under the 3d cause of action, for the plaintiff, and assessed his damages at $1,658.33; and under the 4th cause of action, for the defendants. In their special findings, by way of response to certain questions in writing propounded to them by direction of the court, the jury found, That the books kept by the defendants were not fraudulent or grossly inaccurate; that the damage done to the dwelling-house and barn by mining and removing coal amounted to $500; that there was no negligence or carelessness in mining the coal which caused the surface to fall in, other than the removal of the ribs and pillars; that the ribs and pillars were removed in a proper and reasonable manner, if the defendants had the right to remove all the coal from under the land, without reference to any support for the surface; that the damage done to the surface of the land by mining and removing coal, amounted to $1,658.33, and that the defendants’ mined, digged and carried away the coal and slack underlying the plaintiffs’ land, without leaving ribs, pillars, posts or supports to keep up said surface.
    Judgment was rendered on the first, second and fourth causes of action in accordance with the verdict; but the court, upon motion of the defendants, rendered judgment in their favor on the third cause of action, notwithstanding the verdict.
    A bill of exceptions was taken and allowed, embodying a portion of the evidence, and the charge of the court in full. A petition in error was filed by Samuel Burgner in the district court, where the questions arising in the case were reserved and sent to this court for decision.

      Kohler & Sadler and Voris & Voris, for plaintiff in error.

      The lease of the coal carries with it the right to open the mines and explore, and if coal is found, to dig and remove it. But the mine owner has no right to remove all the coal, including props and pillars, unless the owner of the surface has by express grant or agreement released the right of support. Humphries v. Brogden, 1 Eng. L. & Eq., 241; 1 Washburn on Easements, 558; Smith v. Darley et al., 3 Eng. R., 281; Wood on Nuisance, 184; Rickman v. Gillis, 57 N. Y., 68; s. c. 15th Am. R., 464; Marvin v. Brewster, 55 N. Y., 538; s. c. 14th Am. R., 322 ; Jones v. Wagner, 66 Penn., 429; Horner v. Watson, 79 id., 242; Rogers on Mining, 455; Chadwick v. Coleman, 80 Penn., 81; 31 Am. R., 150; 12 Eng. R., 773; 3 id., 458; 24 Pa. St., 392; Cin. Law Bull, for March 12, 1883; Smart v. Morton, 3 E. L. & Eq., 485; Brown v. Torrence, 88 Pa. St., 186; Carlin v. Chappel, 101 id., 348; Wilms v. Jess, 94 Ill., 464; s. c. 34 Am. R., 242; Livingston v. Coal Co., 46 Iowa, 369; Yandes v. Wright, 66 Ind., 319; s. c. 42 Am. R., 109; Blanchard & Weeks’ Leading Cases on Mines, 616, et seq.

      W. H. Upson and N. B. Tibbals, for defendants in error.
   Dickman, J.

The contract of lease provided that the number of tons of merchantable coal mined and removed from the land should be determined bjr reference to the bills of the diggers, and that the books of the lessees, showing the weight of the coal, should be open at all times, during business hours, to Burgner or his agents. A definite and primary mode of determining the quantity of coal mined was thus agreed upon by the parties to the contract. It was alleged, however, by the plaintiff, and denied by the defendants in the court below, that the original bills of the diggers had been destroyed by the lessees for the purpose of defrauding the lessor, and that-the books, accounts and memoranda of the lessees, relating to the mining operations, were and had been from the commencement of the lease, false, fraudulent and grossly inaccurate. Under this issue the court properly ruled that the evidence of civil and mining engineers and coal miners as to the thickness of the vein of coal on the farm, the number of acres mined, and the number of tons which each acre should yield, might go to the jury, primarily, for the purpose of showing that the books of the lessees and the bills of the diggers were fraudulently kept or grossly inaccurate. If, upon comparing the quantity of coal mined, as ascertained by the estimates or surveys of engineers and miners, with the quantity mined as shown by the books and bills, so great a disparity appeared as to impeach the books and bills for fraud or gross inaccuracy, the jury, under the charge of the court, fairly interpreted, could then resort to such estimates or surveys as a standard for determining the actual quantity of coal mined. In thus ruling, and in so instructing the jury, we think there was no error, and that no ground was thereby furnished for reversing the judgment rendered on the first cause of action.

The question arises on the record, whether, upon a proper construction of the contract of lease, and in accordance with settled legal principles, the lessor was entitled to protection by the lessees against a subsidence of the surface of the land. It is contended by the latter that they had the right, by the terms of the lease, to remove all the coal in, under or upon the farm, without leaving ribs, pillars, posts, or supports to keep up the overlying soil, provided they exercised due care in the removal of such supports of the surface lands. The lessees, at the trial, offered evidence for the purpose of proving that it was the approved method of mining coal to mine and remove all the coal without leaving pillars, ribs or supports for the surface, and that they had removed the pillars and supports from under the lessor’s lands in a careful and prudent manner, and in the best and most approved method. This evidence was admitted, though objected to by the lessor on the ground that under a proper construction of the lease, and by well settled legal principles, he had the right of subjacent support, adequate to maintain the surface in its natural state, and could not be deprived of it, by reason of the ribs and pillars having been taken away, in a careful and skillful manner. During.the trial the court reserved the point, but the jury having returned a verdict for the lessor for the amount of .damage found to have been done to the surface of the land, as they had also specially found that the ribs and pillars had been removed in a manner proper and reasonable, the court rendered judgment for the lessees, notwithstanding the verdict, on the third cause of action, holding that the lessees had the right to remove all the underlying coal without leaving any support to prevent a subsidence of the surface.

It seems to be well settled, that when one owning the whole fee, grants the minerals, reserving the surface to himself, his grantee will be entitled only to so much of the minerals, as he can get without injury to the superincumbent soil, unless, the language of the instrument clearly imports, that it was the intention of the grantor to part with the fight of subjacent support. Humphries v. Brogden, 1 E. L. & Eq., 241; Davis v. Treharne, 6 Law Rep., 460, (H. L. Appeal Cases, 1881) ; Coleman v. Chadwick, 80 Pa. St., 81; Jones v. Wagner, 66 id., 429; Harris v. Ryding, 5 Mee. & W., 60; Zinc Co. v. Franklinite Co., 13 N. J. Eq., 322, 342; Smart v. Morton, 5 Ell. & Bl., 30. The owner has a natural right to the use of his land, in the situation in which it was placed by nature, and if the surface of the land and the minerals beneath belong to different owners, the owner of the surface is entitled to have it supported by the underlying mineral strata, and, an action may be maintained against the owner of the minerals, for the damages sustained by the subsidence. Each owner must so use his own, as not to injure the property of the other. The subjacent support should be such as will preserve the integrity of the surface; but, if the mineral strata are. not essential, to prevent the subsidence of the upper soil — if the soil above, is such as not to require their support, the underlying minerals may be entirely removed by their owner, without liability to an action for so doing.

This obligation to protect the superincumbent soil, exists whether there is a conveyance of the surface reserving the minerals, or a grant of the minerals, without a conveyance of the surface. In either case, the presumption arises, that the owner of the minerals is not, by removing them wholly or in part, to injure the owner of the soil above. According to the doctrines held by the courts, as summarized by an approved text writer, the right which the surface has to support, is a part of the freehold and not an easement. It is a right independent of the nature of the strata, and the mine owner can only work so far as is consistent with this right, and is liable if he violates it. The highest care and skill in the working of the mine, is no defense whatever, if injury results to the surface, from a removal of the subjacent strata. Woods’ Law of Nuisance, sec. 197, and cases cited.

If the grantee or lessee of a mineral estate, desires to be discharged from the servitude of leaving a sufficient support to the superincumbent estate, he should secure such relief by plain and explicit language in the contract, or, the contract should contain something from which the intention to discharge him from his obligation, will appear by necessary intendment. In Davis v. Treharne, supra, it was said by Lord Watson, “When a proprietor of the surface and the subjacent strata grants a lease of the whole or part of his minerals to a tenant, I think it is an implied term of that contract, that support shall be given in the course of working to the surface of the land. If it is not intended that that right should be reserved, the parties must make it very clear upon the face of the contract; in other words, they must express their intention so clearly, as to enable a court to say that such intention is plain.” And in the same case, Lord Blackburn said, “In common right the person who owns the surface has a right to have it properly supported. A court of law has to look at the documents to-see whether the parties have agreed upon something different from the common right. But, whether they have done so or not, is a question turning upon the construction of the documents.”

It becomes, therefore, a subject of inquiry, whether the language of the contract between Burgner and Humphrey et al., when reasonably construed, clearly authorized the lessees to remove the pillars or supports, though necessary to prevent a subsidence of the surface, for, it is established beyond dispute, that the ribs and pillars were indispensable to the support of the soil above, as evidenced by the damage resulting from their removal. There is nothing in the lease to indicate that Burgner left it optional with his lessees, whether they would or not, after finishing their mining operations, leave the surface of his land in an unfit condition for agricultural purposes. In construing the instrument, reference should be had to the uses to which the property had been applied, and to its present and intended use. We do not reach the conclusion, that because Burgner, by the terms of the lease, saw fit to guard his dwelling house and barn from being injured by extending the mining operations too far, he thereby gave a license to the lessees to so conduct their mining operations, as to cause a large portion of his farm to cave in, swag, and become wholly useless for plowing or cultivation, and that too, without any recompense for the damage done, save the royalty on the coal mined and removed. That the intention to dispense with subjacent support, should be manifested by clear and unequivocal language in the deed or lease, is illustrated in. the case of Livingston v. Moingona Coal Co., 49 Iowa, .369. In that case there was a reservation in the deed of all coal and coal mines, with full right to mine the same b3r such means as might be deemed proper, “ without thereb3r incurring in any event whatever, any liability for injury caused or damage done to the surface of the land in working .coal mines, minerals,&c.” Under this reservation, the court held, that the defendants were bound to leave pillars or ribs of coal, if necessary to support the surface, and if they were negligent in their operations, or in not having left such ribs, whereby the land was injured, they were liable for the consequent damages.

It is urged that Burgner, by the lease, conveyed “ all the mineral coal,” and meant that it might all be taken away, without regard to the effect of its removal upon the overlying soil. Baron Parke, in Harris v. Ryding, supra, in commenting upon the right of the surface owner, says: “ I do not mean to say that all the coal does not belong to the defendants, but that they cannot get it without leaving sufficient support.” Doubtless, Humphrey and Coleman had the right to mine and remove the coal, so far as they could, consistently with Burgner’s surface rights; but if, notwithstanding the need of support to the soil, they resolved to remove the natural props and pillars, it was incumbent on them to substitute artificial supports, if, by so doing, they could preserve the integrity of the surface.

In the case at bar we do not think that the rights of Humphrey and Coleman in reference to the ribs and pillars were enlarged by reason of their claiming under a lease instead of a grant. It is suggested that the lessor contemplated the mining and removal of the largest quantity of coal practicable, as thereby he would receive the largest benefit in the shape of royalty, and that, in that view, provision had been made in the lease for the payment of a minimum rent, requiring the lessees to mine each year a quantity of coal sufficient to yield in royalty at least the sum of one hundred dollars. While it is true that the lessor’s royalty would be in proportion to. the coal taken out, we find nothing in the lease from which it may be inferred that he intended to increase his royalty at the risk of irreparably damaging a large portion of his farm. And as to the clause reserving a minimum rent, there is no evidence of such advantages arising therefrom to the lessor as to establish a grant to the lessees by implication, of the right to mine and remove all the coal without leaving any surface supports, either natural or artificial. Besides, the minimum rent was liable to be discontinued at any time by the 'lessees by virtue of the clause in the lease, “ It is mutually agreed that said parties of the second part shall have the privilege of cancelling and surrendering this lease at any time upon payment of the amount due thereon at that time.”

Burgner, by the lease, gave the right, privilege and license to enter upon the lands, and search and explore for mineral, coal, etc., “ and when found to exist on said lands, to dig, mine and remove the same therefrom, together with all and singular the rights, privileges, licenses and easements, necessary or incident, or in anywise appertaining to the proper prosecution of the business of mining and removing any or all minerals and substances aforesaid.” In our judgment, a clause of this kind cannot properly be construed into an enlargement of the power, so to deal with the mine as to let down the surface. In Davis v. Treharne, supra, words of similar import were construed as not enlarging the power to so mine as to cause a subsidence of the superincumbent lands.

The contract of lease under consideration contains the clause, “ It is also agreed that no mining operations by the parties of the second part, their heirs or assigns, shall extend to, or be so near, the dwelling house or barn now upon said land as to injure said buildings.” In our view, this provision exempted the coal under the buildings from the mining operations authorized by the lease. While it was not permitted to destroy or sink the surface of any portion of the farm by failing to leave the necessary supports, from an abundance of caution, the land underlying the lessor’s dwelling house and barn was to remain entirely intact. It seems clear that the lessor was especially desirous that his dwelling house and barn should not be subjected to any of the possible risks of excavation, and he therefore sought to protect them against all contingencies by inserting the above clause in the lease. And the court properly charged the jury that having no right to mine there, it was of no consequence to ascertain whether the lessees did it carelessly and negligently, or otherwise; “that they had no right to mine under those two buildings.” The lessees wrongfully extended their excavations to and under the buildings, and wrongfully invaded the body of coal underlying the same. Exempt as such coal was from any mining operations under the lease, the lessees could not legally claim that the lessor should be limited to the price fixed by the contract for coal mined elsewhere on the premises. In determining the quantity of coal mined' and removed from under the buildings, the lessor not being bound by the diggers’ bills or books of the lessees, he should have been permitted to introduce other evidence, under his fourth cause of action, to prove the quantity of coal so mined and removed, and the ne.t value thereof at the mine at the time of its removal, irrespective of the price put upon other coal, by the terms of the contract. While the lessor is entitled to be indemnified for the damage caused to his buildings by removing the subjacent coal, such indemnification is not to be confounded with compensation for the coal itself.

. We are of opinion, therefore, that the judgment of the court of common pleas on the first and second causes of action should be affirmed; that the judgment on the third cause of action should be reversed, with an entry of judgment for the plaintiff in error; and that the judgment on the fourth cause of action should be reversed, and the cause remanded for a new trial. .

Judgment aeeordingly.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    George H. Ely and John A. Topliff v. Isaac N. Topliff. Isaac N. Topliff v. John A. Topliff and George H. Ely.
    Cases in error. Reserved in the District Court of Lorain County.

      Sherman Royt and W. Blakewell for Ely and J. A. Topliff.

      S. Burke for I. N. Topliff.
   By the Court.

By writing, Isaac agreed with John and George thus: They to have the exclusive use of his patent for tubular carriage bows, dated December 27,1870; one-tbird of 'the expense of maintaining the right of the patent against infringements, and other patents, to be paid by Isaac, and two-thirds by the others; any improvements made by either to be for the mutual benefit of all; in consideration of “the above grant” John and George to pay to Isaac fifteen per cent, out of the wholesale selling prices, as royalty. They were also to make the articles of quality and finish to meet Isaac’s approval, and to do all in their power to extend the sales. The prices were to be settled by agreement' of the three. In May, 1871, Isaac obtained another patent for an improvement in the articles ; and in August, 1875, an improvement on that was patented in the name of John. They made articles according to the patent of 1870, until about February, 1871; but worked without interruption or interference, under that of 1871, from its date, conforming to that of 1875, after its date. They stamped upon all articles made up to September, 1879, the date of the patent of 1870, as well as the dates of the other patents after their issue. They actually enjoyed a monopoly and gained large profits. They paid the royalties that accrued prior to April 1, 1879. On September 13, 1879, they notified Isaac that his patent of 1870 was invalid; that the contract would be no longer recognized by them, and 'that they would not pay any more royalties. In October, 1879, Isaac applied for a re-issue of the patent of 1870. In December, 1879, it was re-issued. In February, 1880, John and George sued to recover the royalties paid. The trial court rendered judgment for Isaac. In June, 1880, Isaac sued John and George for royalties accrued; after April 1, 1879. His petition set out the whole contract; averred.that the royalties were earned under the patent of 1870, upon , “ articles manufactured by the defendants after June 30, 1879.” The answer denied the validity of that patent, and averred its ré-issue. At the trial ■ John and George did not object to evidence proving the patents of 1871 and 1875, and.that the articles were made under them under said con- • tract. .The trial court.gave judgment.for Isaac for unpaid royalties accrued prior to the notice of September 13, 1879. Eeld,

1. Roth judgments were right.

2. The contract gave royalties upon articles made under the patents of 1871 and 1875 as well as that of 1870.

3. Under the contract and conduct of the parties, the invalidity of the patent of 1870, and its re-issue, were immaterial as to royalties accrued before the notice of September 13, 1879.

4. As they did not object to evidence that the royalties were earned pursuant to said contract under the patents of 1871 and 1875, John and George cannot complain because the trial court treated the case as if the petition had been so amended as to aver such earning.

5. Isaac’s action touching the re-issue estops him from claiming that the articles made after the notice of September 13, 1879, were made under said contract.

6. We do not decide anything as to the rights or interests of the parties in the patents of 1871 and 1875, after September 13, 1879.

Judgments affirmed.


author: Martin, J.

text:
    Ogle v. Ogle.
    A vendor, supposing that a woman whose husband was not living with her, was unmarried, sold her a tract of land and took notes and a mortgage back for a part of the purchase money.
    In an action by an assignee of the notes, Held: The deed and void mortgage are ope transaction and subsequent purchasers, with notice, took title in trust for the payment of the mortgage notes.
    Appeal. Reserved in the District Court of Fulton County.
    The original action was brought in the Fulton Common Pleas by Alexander II. Ogle against Emeline Ogle and Joachim, her husband, Miles Hayes and wife, and John Plettner. Its object was to foreclose a separate mortgage given by Emeline to Feebacb to secure payment of nine promissory notes made by her to Feebach, and which had been duly assigned to the plaintiff. It was a mortgage back t.o secure payment of a part of the purchase money for same premises which Feebach had simultaneously conveyed to her. The petition did not admit that she was married at the time; but it claimed that if she were, the notes were a valid charge on the land, notwithstanding it had been conveyed by Emeline and her husband to Hayes, and by him to Plettner. Both Hayes and Plettner, when they respectively took title, had notice of Feebach’s claim and its character. Emeline, a married woman at the time, fraudulently represented to Feebach that she was unmarried, and he believed and relied on the statement. Answers were filed by Feebach and Plettner. The findings of the district court render further statement unnecessary. In the common pleas Plettner had judgment. In the district court, on appeal, the case was reserved to this court on these findings. They are,
    “ That on the 12th daj'- of April, A. D. 1876, the defendant, George Feebach, was the owner in fee simple of the real estate in the petition described, and conveyed the same to the defendant, Emeline Ogle, who then was and thence hitherto has continued to be, a married woman and the wife of the defendant, Joachim Ogle, who was then absent and not with his said wife, for the nominal consideration of twenty-five hundred dollars, of which one hundred dollars was afterwards remitted on settlement between said parties, and thirteen hundred dollars thereof was paid by the conveyance, by said Emeline Ogle to said Feebach, of said real estate in the city of Toledo, subject to'a mortgage lien and nominally placed at that value, and the remaining eleven hundred dollars was included in and constituted the consideration of the notes in the petition set forth, and was secured by a mortgage which said Emeline then executed to said Feebach upon the same real estate.
    “That said Emeline Ogle represented to said Feebach at the time he sold said real estate to her and received said notes and mortgage therefor, that she was a feme sole and ■had no husband, and said Eeebach believing and relying upon said representations, and not knowing nor having reason to know the falsity thereof, made said conveyance of said real estate and received therefor the notes and mortgage described in the petition of plaintiff, none of which were signed or executed by the husband of said Emeline, nor did said Feebach know of his existence.
    “ That on the 1st day of November, A. D. 1876, said Emeline Ogle and her husband, Joachim Ogle, joining, attempted to convey said real estate by a deed of that date to the defendant, Miles Hayes. And on the 29th day of May, 1877, said Emeline and Joachim, both joining, executed to said Hayes another deed conveying to him said real estate, and which last deed was in all respects properly executed. Both of said deeds contained general covenants of warranty, but the mortgage executed by said Emeline to said Feebach was especially excepted from said covenants in each of said deeds by a clause as follows, to wit:
    “ To have and to hold the same to the said Miles Hayes, his heirs and assigns forever, we hereby covenanting that the title so conveyed is clear, free, and unimcumbered, excepting a mortgage hereafter mentioned, and that we will warrant and defend the same against all claims whatsoever, excepting a certain mortgage executed by Emeline Ogle to George Feebach, on the 12th day of April, A. D. 1876, to secure the payment of eleven hundred dollars.”
    In August, A. D. 1878, the defendant, Flettner, was negotiating with said Hayes for the purchase of said real estate, when Feebach notified him through a third person not to purchase the same, for the plaintiff had a claim thereon, which he, plaintiff, would proceed to enforce at the next term of the court in Fulton county, and Plettner thereupon discontinued such negotiations till after said term, when no such proceedings having been commenced, on the 16th day of December, A. D. 1878, he purchased said real estate of Hayes for the nominal consideration of eight hundred dollars, which was its approximate cash value, and which was paid as follows: one hundred dollars by Plettner’s individual note to Hayes, of which thirty dollars was paid before the trial in the court below, but when, does not appear, and the balance has since been paid. Three hundred dollars by the assignment to Hayes of a conditional obligation due to Plettner from one Jefferson Beard, which was apparently secured by a mortgage which has since proved entirely worthless in consequence of a previous mortgage on the premises, which had been foreclosed but of which Plettner was ignorant, and four hundred dollars was paid by the sale and transfer to Hayes of a patent right in a certain territory.
    Hayes conveyed said real estate by a quit claim deed to Plettner, who knew of the existence of said mortgage to Feebach, but supposed it to be of no legal force or effect because it had been executed by a married woman.
    On the 20th day of January, A. d. 1877, said Feebach transferred said notes and mortgage executed by Emeline Ogle, to plaintiff, who afterwards commenced this action thereon. The defendant, Hayes, as a part of the purchase price of said real estate so conveyed to him, agreed to pay the mortgage executed to Feebach, and also before the conveyance by him to said Plettner, he negotiated with plaintiff for the payment of the same, but such'agreement and negotiation did not appear to be known to said Plettner except so far as it might be shown by the deed from Hayes to him, and as he may there be charged with such knowledge and by the other facts in the case.
    All such deeds and mortgages were forthwith after the execution thereof as aforesaid, respectively delivered to the recorder of said county of Fulton, for record, and by him immediately properly recorded in the respective records of mortgages and deeds in his office.
    When said notes and mortgages were assigned to plaintiff, he had no knowledge or notice of the fact that said Emeline Ogle was or had been a feme covert, or that other defenses existed to.the same.
    There was no evidence introduced of the existence of the patent mentioned by said Plettner, except his own testimony, and no evidence of its non-existence. At the date of the commencement of this action, the said Emeline Ogle was and ever since has continued to be insolvent.”

      C. H. Scribner,. with whom were Pratt f Bentley, for plaintiff.
    1. The original conveyance by Feebach to Emeline Ogle, and the mortgage back, constituted a single transaction. In legal effect it was the same as if there had b^en inserted in the deed a stipulation that the land was charged in the hands of the grantee with the payment of the unpaid purchase money. As between the vendor and the vendee it is immaterial whether the mortgage is a strictly legal instrument or not. The two instruments — the deed of conveyance on the one part and the mortgage deed upon the other— charged the lands in the hands of the purchaser with a liability for the unpaid consideration; and this charge may be enforced, as well against a purchaser with knowledge, as against the original grantee. Bedford v. Burton, 106 U. S., 338; Chilton v. Braiden, 2 Black. S. C. U. S., 458, 461; 1 Bishop on Married Women, 420, § 600.

      B. T. Geer and Bodge & Raymond, for Plettner.
    The mortgage of a married woman, her husband not joining, is a nullity. Rev. Stats., § 4107; Miller v. Hines, 13 Ohio St., 565; Foster v. Dennison, 9 Ohio, 121; Purcell v. Gorham, 17 Ohio, 105; Henry v. Henry, 27 Ohio St., 121. Such mortgage is not validated by any alleged fraud or misrepresentation. Concord Bank v. Bellis, 10 Cush., 276; Lowell v. Daniels, 2 Gray, 161; Innis v. Templeton, 95 Pa. St., 262; Morrison v. Wilson, 13 Cal., 494; Bank of Am. v. Banks, 101 U. S., 240; Miller v. Wetherby, 12 Iowa, 415.
   Martin, J.

Feebach’s mistake in taking the- void mortgage entitled him, as against Mrs. Ogle, to a rescission of the contract, to a vendor’s lien, or to assert a charge on the land as her separate estate. But we are not aware that either of these remedies is available to his assignee, the plaintiff, against subsequent purchasers. Obviously, he cannot rescind, and if he could his notes would be avoided, and he would take nothing. A vendor’s lien is not assignable. And it seems to us that the mere existence of the indebtedness which might, by proper steps, have been charged on the separate estate, created no lien, and cannot, therefore, entitle the creditor, as against subsequent purchasers, to charge it on the land. It had ceased to be separate estate. And there is here no equity of correction arising from a defective execution of a grant whereby the title failed to pass, and which would be enforceable against subsequent purchasers with notice. The mortgage, as a grant, is simply void and incapable of correction.

It is insisted, however, that, in equity, Mrs. Ogle became a trustee for Feebach for the payment of the notes. This view is supported by the opinion of an eminent author, who bases it on the ground that there was a failure of what was really contemplated by the parties as a consideration. .1 Bishop on Married Women, 600. It appears from the context that the author alludes to the general property of a married woman subject to marital rights at common law.

A grant of such property to the wife casts upon the husband an estate during the joint lives of himself and wife. He alone can accept the conveyance. If it is absolute and unconditional an acceptance is presumed. If it is clogged with a trust (or in any manner conditional) he is put to his election. If he reject it the contract is at once rescinded, and all parties are restored to their original position and rights. If he accept it, the premises granted, including his estate, are charged with the trust. The result in either case is accomplished by his own act. By acceptance, in a case like the present, he gives effect, for his own advantage, to her expressed intention. To hold otherwise would enable him, by his own voluntary act, to enjoy the fruits of his wife’s fraud. We think the opinion of the learned author is sound and consistent with established principles and analogies.

But under our statute the premises in question were the separate property of Mrs. Ogle. The statute gives her sole control over it, and the restraints imposed confer no estate on the husband. She has power to make certain contracts in respect to it,'and to chai’ge it withffhe payment of debts. The invalidity of the mortgage arises solely from her incapacity to make a separate grant. Other considerations affected her relation to her general property at common law. As to it she was incapacitated to contract. And to assume any validity in her mortgage back was to admit the momentary seizin of her husband with its legitimate consequences. We see nothing in the changed condition, in her seizin and powers under the statute, to relieve her from the relation of a trustee.

The deed and mortgage back are dependent parts of one transaction. They evidence an agreement not simply for a lien, but for a reconveyance — a perfect mortgage, with its incidents and cumulative remedies. By mere mistake on the part of Feebach, he accepted the mortgage, regular on its face, but void.

Notwithstanding he had a vendor’s lien and a right to charge the separate estate, there is no inconsistency in his having, and we think he was entitled to have, the ampler remedy of a trust assignable and enforceable against subsequent purchasers with notice. A recital in the deed to Hayes is a particular reference to the mortgage in which the notes are described as given for the purchase money. The case shows that Plettner also was fully notified. They successively bought with notice of plaintiff’s equity, and are bound by it precisely as was Mrs. Ogle.

Judgment for plaintiff.


text:
    Ford v. Johnson.
    In a deed of bargain and- sale, the grant was “unto the said Charles Cline and to his lawful issue, to go to his surviving brother or brothers and to their heirs and assigns.”
    The habendum clause was “unto the said Charles Cline and to his lawful issue, to the only proper use of the said Charles Cline and his lawful issue (as above mentioned) forever.” There were covenants of seizin, of quiet enjoyment and against incumbrances, which were each with “the said Charles Cline and his lawful issue.”

      Held, that Cline took a life estate.
    Error to the District Court of Clinton County.
    The facts are sufficiently stated in the opinion.

      Stone & Walker and A. Harris, for plaintiffs in error.

      Leroy Pope and A. C. Liboll, for defendants in error.
   Martin, J.

The original action was brought by Ford and others, the children and grand-children of one Cline, to recover possession of land in Clinton county. The case is this: In September, 1824, Salters, by deed of bargain and sale conveyed the premises to Cline. The grant is “ unto the said Charles Cline and to his lawful issue, and in case he should die without leaving lawful issue to go to his surviving brother or brothers and to their heirs and assigns.” The habendum runs “unto the said Charles Cline and to his lawful issue, to the only proper use of the said Charles Cline and his lawful issue (as above mentioned) forever.” There are covenants of seizin, of quiet enjoyment and against incumbrances which are with “ the said Charles Cline and his lawful issue.”

These are the material features of the deed. At the date of the deed Cline had four living children; some of whom survived him and are plaintiffs. He died in 1878, leaving surviving him the plaintiffs; and this is their title.

In March, 1831, Salters conveyed the premises in fee simple to Cline, reciting in the conveyance that the deed of 1824 was drawn in mistake and was intended to have been“ in fee simple. The defendants claim under Cline through intermediate conveyances in due form. Thus the only question is: Did the deed of 1824 convey a life estate to Cline ? The courts below adjudged in the affirmative; and to obtain a reversal the case is here on error.

The elementary authorities uniformly hold that the word heirs is indispensable to the creation by deed of an estate tail or in fee simple; though it is otherwise in respect to a will. This requirement is technical; but it has always been a rule of property in this state and must, for manifest reasons, be upheld. The contingent remainder is expressly limited to the brothers and their heirs. And it is plain that the word heirs, found in the clause giving the remainder, cannot by construction be held to limit the estate granted, as is claimed, to Cline’s issue. Such a transposition of the word would ab initio frustrate the apt words of the grant in remainder; for it would be to tack a remainder to an unconditional grant in fee simple. And it will also be noticed that the word heirs as a correlative to Cline or his issue is not found in the habendum or warranty clauses, nor elsewhere in the deed. And it is proper to add, it is not imported by reference. Hence the estate granted is not by the words of grant or by anything within the four corners, limited to Cline and his heirs, nor to his issue and their heirs. But it is claimed that the particular estate was not alone for Cline’s life, but was also for the respective lives of the survivors of his four children who were living at the date of the deed in September, 1824. As to this, as well as to a suggestion that might be made of a fee by implication, springing from the survival of issue, it is sufficient to say that, by the obvious intent and plan of the instrument, the particular estate was ended by the death of Cline, and the fee thereupon reverted, if it did not pass in remainder to the brothers. Consequently the estate granted was a life estate to Cline for his own life. But the result would be the same if the construction were to him and his four children as tenants in common; because, even if the words of grant are not inconsistent with a right of survivorship, it is certain that the right is not given expressly, nor, as we have seen, by implication.

Cline having left surviving issue, the remainder was defeated. But he had taken the fee simple by the deed of 1831; and the judgment for defendants, who claim under him, is right.

Judgment affirmed.


author: McCauley, J.

text:
    Ryan v. O’Connor.
    Where a grantee holds the legal title to lands in trust for the grantor, and without the knowledge of the grantor conveys the lands to another upon the same trust, in an action by the grantor against the heirs of the second grantee to enforce the trust upon which he took the legal title, Held:

    1. That the first grantee was not a necessary party.
    2. That the first grantee was a competent witness for the first grantor against the heirs of the second grantee to establish the trust in the property.
    3. Where, after a deposition was taken, new parties were made, and they filed no exceptions to the deposition at any time, and on the trial objected to it only on the ground of incompetency, they waived the objection that they had no notice of the taking of the deposition as required by section 5213, Revised Statutes.
    4. That parol testimony is admissible to show that a deed purporting to have been made for a stated consideration in money, was in fact made without consideration, and that the grantee held the lands in trust for the grantor.
    Error to the District Court of Hamilton County.
    The original action was brought in the superior court of Cincinnati by O’Connor against the heirs of John B. Ryan. The plaintiff alleged that on April 1, 1858, he conveyed the lands described in his petition to one Caleb E. Nourse, and that Nourse at the same time made and gave to O’Con-nor his two promissory notes for seven hundred and fifty dollars each, payable in one and two years, and that O’Con-nor then agreed to furnish the money to pay these notes at their maturity, and that Nourse should- hold the legal title to the lands to indemnify him against his liability on the notes; that O’Connor furnished the money to pay the notes of Nourse at maturity; and that after the. notes were so paid, Nourse held the title to the lands until July 30, 1861, when he conveyed to John B. Ryan; that the conveyance was made to Ryan without the knowledge of O’Connor and was without consideration and was taken by Ryan to hold in trust for O’Connor, and that Ryan died intestate in January, 1871, holding the legal title to the lands. The plaintiff alleged also that the lands had been conveyed to him July 7, 1851, and that ever since that time he had been in possession thereof, and that the conveyance to Nourse and from Nourse to Ryan cast a cloud upon his title, and asked to have his title quieted as against any claim or right of the heirs of Ryan. To this petition various matters of defense were set up, amongst others, that the matters in dispute had been finally determined by an action between the same parties for the same cause; that Ryan held the title to the lands from 1861 to 1871, the time of his death, during which time O’Connor made no claim to the property; that the conveyance from O’Connor to Nourse was made to hinder and delay the creditors of O’Connor from enforcing the collection of their just claims against him. The conveyance from O’Connor to Nourse and from Nourse to Ryan were admitted to have been made as stated in the petition.
    Upon the trial in the superior court the deposition of Nourse was offered and read in evidence. The court, however, not finding that the plaintiff had been in possession of the lands as stated in his petition, gave judgment for the defendants!
    This judgment was reversed by the district court. The heirs of Ryan bring this proceeding to reverse the judgment of the district court.

      Stallo, Kittredge & Willy, for plaintiffs in error.
    1. The deposition of Nourse was incompetent, for that when taken some of the defendants had not been served with process. Rev. Stats., §§ 5266, 5278.
    2. Nourse was incompetent as a witness. He was a necessary party. Rev. Stats., § 5242; Alexander v. Hoffman, 70 Ill., 115 ; Louis v. Baston, 50 Ala., 470.
    3. Parol evidence was not competent to prove the trust set up by O’Connor. Stat. Frauds, ,§ 4198; McLain v. McLain, 57 Iowa, 167; Metcalf v. Brandon, 58 Miss., 841; Porter v. Mayfield, 9 Harris, 263 ; Sturtevant v. Sturtevant, 29 N. Y., 39; Fairchild v. Rasdall, 9 Wis., 379; Taylor v. Sayles, 57 N. H., 465. And when the answer denies a trust, it is not necessary to plead the statute of frauds. Metcalf v. Brandon, supra; Whyte v. Arthur, 17 N. J. Eq., 521; Suman v. Springate, 67 Ind., 115; Matthews v. Leaman, 24 Ohio St., 615; Watson v. Erb, 33 Id., 35; Wheeler v. Reynolds, 66 N. Y., 227; Rogers v. Simmons, 55 Id.; 76; 2 Wharton on Ev., § 707; Newton v. Taylor, 32 Ohio St., 399, and see Nelson v. Worrall, 20 Iowa, 469; Collier v. Collier, 30 Ind., 32.

      J. J. Grlidden, with whom were T. A. O'Connor and Taft & Lloyd, for defendant in error.
    1. Parol evidence was admissible to prove the trust. 2 Ohio St., 336; 16 Id., 440; 24 Id., 615 ; Woods v. Dille, 11 Ohio, 456; Minns v. Morse, 15 Id., 571; Bickett v. White, 1 Sup. Ct. Rep., 170; Matthews v. Leaman, 24 Ohio St., 615.
    2. As to the incompetency of the deposition of Nourse. No exceptions were filed before trial. Rev. Stats., §§ 5284, 5285, 5286. After trial the objection made is too late. Ash v. Marlow, 20 Ohio, 119; Cowan v. Ladd, 2 Ohio St., 322.
    3. Nourse was competent as a witness. Matthews v. Leaman, 24 Ohio St., 615. He was not a necessary party and hence section 5442 Rev. Stat., has no application.
   McCauley, J.

The petition in the original action stated facts which entitled the plaintiff to relief, quieting his title against any claim or estate of the defendants in the lands, and also a state of fact upon which he was entitled to a decree to enforce the trust upon which the defendants held the lands. No objection was made to the petition in this form, and no action taken to require the plaintiff to elect which form of relief he would pursue.

The superior court seems to have treated the action as one to quiet title, and finding that possession was not shown in the plaintiff, gave judgment for the defendants. Treating the case as one to quiet title, the judgment was clearly correct. But, upon all that transpired on the trial, if the plaintiff was entitled to a decree enforcing the trust in the lands, the court erred in refusing t,hat relief. The first question encountered in this aspect of the case is, whether or not the testimony of Nourse was admissible; He was not a party, and therefore was under no disability to testify under Section 5242, Revised Statutes. That section provides, “ That a party shall not testify where the adverse party * * * claims or defends as heir * * * of a deceased person.” The construction given to this provision, in Hubbell v. Hubbell, 22 Ohio St., 208, is “that both the part}' disqualified and the adverse party referred to must be parties to the record, and adversely interested in the determination of the issues of fact.”

Since the construction given to this statute in Hubbell v. Hubbell, supra, it has been so amended that these words have been added to it: “ When a case is plainly within the reason and spirit of the last three sections, though not within the strict letter, their principles shall be applied.” Does this provision require that the testimony of Nourse should be excluded? If Nourse was a necessary party, although not in fact a party, it is possible that this provision would exclude his testimony. He held the lands in trust for O’Connor, and without the knowledge of O'Con-nor conveyed them to Ryan without consideration and upon the understanding that Ryan would convey to O’Connor on request. These transactions placed Ryan in the same relation to O’Connor as that occupied by Nourse before the transfer.

Whatever trust O’Connor could have enforced against Nourse, he could enforce after the transfer against Ryan or against his heirs. The transfer from Nourse to Ryan is admitted in the answers of the defendants, — O’Connor therefore seeking to have the trust enforced by which the lands should have been conveyed to him, could have no'relief touching the title to the lands, or by way of the enforcement of the trust against Nourse. He was, therefore, not a necessary party to the action, and the reason and spirit of the statute which excludes the testimony of a party when the adverse party claims or defends as heir of a deceased person, should not apply so as to exclude his testimony.

After the deposition of Nourse had been taken, two of the heirs of Ryan were made parties, but filed no exception to the deposition at any time. The only objection was made on the trial to the competency of the evidence. If exceptions to the deposition had been filed as provided by Section 5284, Revised Statutes, the deposition could not have been read against the parties.brought into the case after the deposition was taken. No exceptions being filed, the new parties could make only such objections to the deposition as they could have made if the witness had been testifying in court. By failing to file exceptions they waived all other objections.

It is urged that though the testimony of Nourse is admissible, it cannot be used to show that a deed purporting to have been made for a stated consideration in money was, in fact, without consideration, and that the grantee held the property in trust for another.' That parol evidence for this purpose is admissible has been held in Fleming v. Donahoe, 5 Ohio, 255 ; Stall v. Cincinnati, 16 Ohio St., 169; Matthews v. Leaman, 24 Id., 615; Miller v. Stokely, 5 Id., 194.

The testimony of Nourse fulfills the requirements of the rule stated in Stall v. Cincinnati, supra, that such evidence must be clear, certain and conclusive not only of the existence of the trust, but of its terms and conditions. The defense was urged also, in the court below, that O’Connor having conveyed the property to Nourse, to hinder and delay his creditors, the law would give him no aid to recover it. He conveyed the property to Nourse as indemnity against the liability of Nourse on two promissory notes of seven hundred and fifty dollars each, that Nourse gave him at the time of the transfer. What O’Connor did with the notes does not clearly appear, but he seems to have made use of them to raise money for some purpose. Nourse testifies that the notes had been negotiated, but he does not know to whom. This course of dealing with the land and with the money raised upon it as security was quite consistent with a purpose to deal fairly with his creditors; for anything that appears he may have paid the money thus realized immediately to his creditors. If his purpose was to place his property beyond the reach of his creditors, the law would leave it where he placed it; but such purpose, or acts from which such conclusion would necessarily follow, should have been proved to defeat his right to reclaim the property from those who hold it by conveyance without consideration.

Judgment affirmed.


text:
    Lumber Company v. Purdum.
    Error to the District Court of Scioto County.

      Moore & Newman, for plaintiff in error.

      H. W. Farnham and Noah J. Fever, for defendant in error.
   By the Court.

In 1875, Purdum, by contract with the commissioners of Scioto county, agreed that, by a date named, he would build and deliver to said commissioners, or their successors in office, one house to be used as a Children’s Home; also to furnish all material (except mantels) at his own cost; also that Thompson, an architect, as superintendent, should have power to inspect and accept or reject any work done or material furnished, and his decision should be final. For this house the commissioners agreed to pay to Purdum $18,000 in nine installments; each payment to be made on or before a specified day, or as soon thereafter as a specified stage of the work should be completed. Seven installments had been paid, Thompson having accepted the respective stages of the work. The eighth installment was to become payable “when the exterior is finished and one-half of the interior wood work finished, and the cooking range set, and the plumbing done.”

Purdum had done the plumbing and had “ substantially finished the exterior of said building and one-half of the interior wood work,” but had not set the cooking range, and Thompson had not inspected or accepted any of said eighth stage of the work. Then, without the fault of either party, the uncompleted house was destroyed by fire. Purdum refused to complete the house, unless the commissioners, at the county’s expense, would restore it as it was when the fire began. This they declined to do. Newman Lumber Company, under contract with Purdum, had furnished him materials for the house, for which $1,075 was due and unpaid. The company delivered to and filed with the commissioners an attested account, such as was provided for by the act of March 30, 1875, (72 Ohio Laws, 166,) and demanded payment out of the sum payable to Purdum for the eighth stage of the work. This was refused. The company did not appeal to the common pleas, but began a civil action against Purdum and the commissioners.

Held : 1. The payment by installments was for the convenience of Purdum, and did not affect the entirety of his contract to build and deliver a complete house. No part of the eighth installment became, or is due to him.

2. The act of March 30, 1875, (72 Ohio Laws, 166,) did not apply to the public buildings, or to commissioners of counties.

3. If Newman Lumber Company’s claim was valid against the commissioners, was their only remedy an appeal from the commissioners to the common pleas? Quere.

Judgment affirmed.


text:
    Quigley v. Mitchell.
    Error to the District Court of Morrow County.

      Geo. B. Thompson and Dalrymple Powell, for plaintiff in error.

      Andrews Allison and Olds Pluchey, for defendant in error.
   By the Court.

In February, a. d. 1866, in Morrow county, Ohio, John and Lusanna Cook legally adopted Mary Jane Paschal. The order of the probate court declared that from thenceforth her name should be Mary Jane Cook, and that she “should to all intents and purposes be the child of said John Cook and Lusanna Cook.” Lusanna Cook died, without issue, in February, 1873. In January, 1879, her father, Daniel Mitchell, died intestate, seised of certain non-ancestral real estate. Mary Jane claimed the share of said estate that would have descended to Lusanna, if she had survived her father. The common pleas denied her claim, and the district court affirmed the judgment.

Held: This was right. Sec. 3140, Rev. Stats, of Ohio, as between the adopting parents and the adopted child, bestowed upon the latter all the rights and privileges of a child of the former begotten in lawful wedlock; but did not make the adopted child of Lusanna “ of the blood of Lusanna’s father.” Her right to inherit is limited to “ the property of such adopting parent.”

Judgment affirmed.


text:
    Miller v. Spain.
    Error to the District Court of Champaign County.

      W. J. Gilmore and Thomas J. Trank, for plaintiff in error.
    Young, Chance & Gowey, for defendant in error.
   By the Court.

W., as principal, and S. as surety, for value, made and delivered their sealed note, dated November 6, 1876, promising to pay to M. or order $184.80, one year after date with interest at eight per cent, per annum after maturity. This note contained a clause reading thus: “ And it is understood that the liability of neither of us is to be affected by further time being given for payment.” M. sued both makers in December, 1880. S. answered that about November 6, 1877, M., for a valuable consideration, gave W. until November 6, 1878, to pay the note; and that this was done without the knowledge or consent of S. A demurrer to this answer was overruled. A reply denied the agreement set up in the answer. At the trial the only evidence of said agreement was an indorsement on the note reading thus: “ $19.80 — Received on the within note nineteen dollars and eighty cents, one year’s interest from date, November 6, 1877; ” and S.’s testimony that the interest for the first year had been paid in November, 1876, and that he had no knowledge of the extension, and never agreed to it. Finding for the defendant the common pleas gave-judgment in his favor. The district court affirmed the judgment.

Held: This was wrong. By the terms of the note, S. consented to remain liable for such further time for payment as maker and principal should agree upon. Although the word “given” standing alone implies a gift, to so construe it here would make the clause meaningless. We think the intent was to waive the surety’s right to a release. A mere gift of time would not release him. While we do not hold that this stipulation would apply to a second agreement for still further time, a majority of the court decide that it authorized principal and payee to agree upon one extension without affecting the liability of the surety.

Judgments below reversed.

Martin, J., dissents.


text:
    Bartram v. McCracken.
    Error to the District Court of Logan County.

      West, Walker & West, for plaintiff in error.

      Howenstine & Sweet, for defendant in error.
   By the Court.

On October 19, 1878, M., as sheriff, duly levied an execution against B. upon certain chattels. B. was then the head of a family. He owned but one parcel of land and then resided thereon. This was incumbered to a sum greater than its value by mortgages duly made by B. and wife. The mortgage debts were overdue and unpaid, and the holders could, at pleasure, begin actions to foreclose. Stating these facts to M., B. demanded a set-off in lieu of a homestead. This M. refused, and sold the chattels under his writ.

Ueld: The allowance demanded could only be made to “ any resident of Ohio being the head of a family and not the owner of a homestead.” (78 Ohio Laws, p. 694, § 68.) At the time of his demand, although the homestead was incumbered to more than its value, B. was still its only owner. We think the legislature did not intend to impose upon the sheriff the duty of ascertaining the existence and validity of, and the amount due upon, incumbrances upon the realty of the execution debtor.

Judgment affirmed.


author: Dickman, J.

text:
    Loeser et al. v. Humphrey.
    L. & Co. carelessly and negligently left their horse, which was harnessed and hitched to their wagon, standing in a public street without being properly tied or guarded. The horse ran away, and the wagon violently collided with the wagon of H., in which he was sitting, whereby he received severe bodily injury. At the time of his injury H. was free from, contributory negligence. Immediately after his injury he employed a physician “ of good standing and reputation,” placed himself under his treatment, and followed his directions. Held,—
    1. That although the physician may have omitted to apply the remedy most approved in similar cases, and by reason thereof, the damage of H. may not have been diminished as much as it otherwise would have been, he may still recover of L. & Co. for his actual damage.
    2. That the collision was the proximate cause of the damage.
    Error to the District Court of Cuyahoga county.

      J. E. Ingersoll and Peter Zucker, for plaintiff in error.
    It should have been left to the jury to find whether or not the plaintiff exercised ordinary care in providing himself with a physician of ordinary care and skill. Wharton on Neg., § 420; Railroad Co. v. Picksley, 24 Ohio St., 666 ; Penn. Co. v. Rathgeb, 32 Id., 66.
    The court erred in refusing to instruct the jury that, if the attending physician did not give the plaintiff the ordinarily approved treatment, and his case is worse on that account than it would otherwise have been, then to that degree the defendant would not be liable for his said worse condition. Here the case, supposed in the request which the court refused, gives such conditions as would make a physician liable to the plaintiff for malpractice because of a neglect to use such treatment as was ordinarily resorted to and in consequence thereof plaintiff’s injury became worse.
    Here was plainly not such damages as proximately and naturally came from the original injury.
    The negligence must be the proximate cause of the injury. 2 Taunt., 314; 7 Bing., 211; 2 Dows. Rep., 391; 5 Laws (N. Y.), 524; 7 C. P. (L. R.), 253; 53 Pa. St., 442; 11 Met., 542; 32 Me., 46; 28 N.Y.,72; 35 N.Y.,17; 57 N. Y., 491; Daniels v. Ballantine, 23 Ohio St., 532.

      E. J. Blandin, for defendant in error.
    If the negligence of the defendant is the proximate cause of the injury to the plaintiff, the plaintiff'may recover for the full extent thereof, although such injury may have been aggravated by the physician or plaintiff himself. Thompson on Neg., vol. 2, p. 1091; Dean v. Keate, 3 Campbell, 4; Bardwell v. Jamaica, 15 Vt., 438; Collins v. Council Bluffs, 32 Iowa, 324; Rice v. Des Moines, 40 Iowa, 638; Stover v. Bluehill, 51 Me., 439; Page v. Bucksport, 64 Me., 51; Lawrence v. Housatonic R. R., 29 Conn., 390; Eastman v. Sanborn, 3 Allen, 594; Stickney v. Maidstone, 30 Vt., 738.
   Dickman, J.

The original action was brought in the court of common pleas of Cuyahoga county, by Edward Humphrey against Loeser & Co., for alleged carelessness, in leaving their horse insecurely tied, yvhereby he broke away and ran with the wagon to which he was harnessed, into the wagon of Humphrey, and severely injured him in his person. At the trial the plaintiff gave testimony tending to prove that, by reason of the collision and accident, the plaintiff had suffered a concussion of the spinal chord and brain, resulting in an injury to his eyesight, which was thereby much impaired; and that in consequence of his injuries, his ability to walk was also much impaired, with other consequential damage. The defendants to maintain the issue on their part, gave testimony tending to prove that the ordinarily approved medical treatment in such cases was to administer currents of electricity to the patient and the injured parts, and that if such had been done in the present case, the condition of the plaintiff would have been better than it was; that for want of such treatment his condition was rendered worse, and more likely to be permanent than it would have been had electricity been applied.

There was a verdict and judgment for the plaintiff.

The district court affirmed the judgment of the court of common pleas, and this proceeding is now prosecuted to reverse the judgment of the district court.

The only assignments of error which we deem it material to consider are, that the court erred in its charge to the jury, and in refusing to charge the jury as requested by the defendants below. The court charged in reference to the medical treatment of the plaintiff for his injuries, as follows:

“ If the plaintiff is entitled to recover any damages, then he is entitled to recover an amount sufficient to compensate him for the injury which he has actually sustained, so far as the damages to him naturally and directly flowed from and were caused by his wounds, bruises, &e., caused by defendants’ acts or negligence complained of. After the plaintiff was injured he was bound to use ordinary care and prudence, under all the circumstances, to take care of himself and his wounds; and if he employed a physician of good standing and reputation, supposing and having reason to think he was such, and who, in fact, was such, as it is admitted he was in this case, then, though the physician may not have used all the approved remedies, or that remedy which would have been most suitable in the case, or which a good medical man would have used under the circumstances, and on account of the failure to use Such usual or proper remedy, his condition is worse than it would be had it been used; still, plaintiff may recover for his actual damages, if he himself has not been negligent; and such treatment or failure to use such remedy merely, will not prevent him from recovering the full extent of his injuries as aforesaid.”

It is contended in behalf of the plaintiffs in error, that the court, in this portion of its charge, interfered with the province of the jury, and withdrew from them the determination of the question, whether Humphrey had used ordinary care in providing himself with a physician, and virtually said to them, that if Humphrey employed a physician of good standing and reputation, he had thereby exercised ordinary care. Whether the instruction of the court on this point was erroneous or not, we deem it unnecessary to inquire, as we do not consider the instruction material, it not having been claimed at the trial, and the record disclosing no evidence that there was any want of ordinary care and prudence on the part of Humphrey, in securing proper medical or surgical assistance. As an instruction to the jury in reference to the care which he should have exercised in employing a physician, was not therefore material, the judgment will not be reversed, on the ground that such instruction was erroneous. Loundenback v. Collins, 4 Ohio St., 251; Creed v. Com. Bank of Cincinnati, 11 Ohio, 489; Wash. Mut. Ins. Co. v. Reed, 20 Id., 202, 206, 207; Kugler v. Wiseman, Id., 361; Walker v. Lessee of Devlin, 2 Ohio St., 605.

It is conceded that at the time Humphrey was injured, no negligence of his own contributed to his injury. His cause of action was then complete, and Loeser & Co. became liable for the natural and proximate consequences of the collision occasioned by their negligence. In tracing the boundary between consequences, proximate and remote, it is difficult, as remarked by Professor Parsons, to lay down a definite rule of great practical value or efficacy, in determining for what consequences of an injury a wrong-doer is to be held responsible. Law of Contracts, vol. 2, p. 457. In Harrison v. Berkley, 1 Strobh., 548, it was said, “ He shall not answer for those which the party grieved has contributed by his'own blamable negligence or wrong to produce, or for any which such party, by proper diligence, might have prevented.”

There can be no dispute but that Humphrey acted in good faith, showed due diligence, and used reasonable means to effect his cure and restoration. He employed a physician “ of good standing and reputation.” It was not incumbent upon him to incur the greatest expense, and call in the most eminent physician or surgeon of the highest professional skill, and most infallible judgment, before he could hold the defendants answerable for the condition in which he was left at the end of his medical treatment. Having exercised ordinary care and reasonable judgment in selecting a physician, he was not requked, as said by the court, in Stover v. Bluehill, 51 Me., 439, “to insure, not only the surgeon’s professional skill, but also his immunity from accident, mistake or error in judgment,” in order to recover of the original wrong-doer, damages arising from no fault on his part, and from causes beyond his power to control.

It seems to be well settled, that where one is injured by the negligence of another, if his damage has not been increased by his own subsequent want of ordinary care, he will be.entitled to recover of the wrong-doer to the full extent of the damage, although the physician whom he employed omitted to apply the remedjr most approved in similar cases, and by reason thereof the damage of the injured party was not diminished as much as it otherwise would have been. Lyons v. Erie Ry. Co., 57 N. Y., 489; Tuttle v. Farmington, 58 N. H., 13; Stover v. Bluehill, supra; Bardwell, et al. v. Jamaica, 15 Vt., 438; Collins v. Council Bluffs, 32 Iowa, 324; Rice v. Les Moines, 40 Id., 638; Eastman v. Sanborn, 3 Allen, 594; Page v. Bucksport, 64 Me., 51.

The collision must be treated as the proximate cause of Humphrey’s damage. It was that that imposed upon him the necessity of employing a physician, and of being subject to all the contingencies attendant upon the present imperfect state of medical science. In Insurance Co. v. Boon, 5 Otto, 117, Strong, J. said: “The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation.” In Byrne v. Wilson, 15 Irish C. L., 332, 342, a stage-coach by the negligence of the driver, was precipitated into a dry canal. The lock-keeper thereafter negligently opened the gate of the canal and drowned a passenger. Under Lord Campbell’s act, the Irish Court of Queen’s Bench held, that the death of a passenger under such circumstances, in the language of the act, was “ caused” by the negligence of the driver. The passenger would not have lost her life but for the subsequent act of letting in the water, which was not the necessary consequence of the previous precipitation by the negligence of the defendant’s servant. But, in the opinion of the court, the defendant was not relieved from liability for his primary neglect, by showing, that but for such subsequent act, the death would not have ensued. And in Page v. Bucksport, supra, the plaintiff was driving over a defective bridge in the defendant town, when, without his fault, the horse broke through the bridge and fell. The plaintiff, in trying to extricate the horse received a blow from the horse’s head, and was injured by it. He was at the time exercising ordinary care. It was held, that the defect in the way was the proximate cause of the injury.

The defendants requested the court below to charge the jury that “if the attending physician did not give the plaintiff the ordinarily approved treatment, and his case is worse on that account than it would otherwise have been, then, to that degree the defendants would not be liable for his said worse condition.” The court refused so to instruct the jury, and in so refusing, we think there was no error. If the condition of Humphrey was worse because his physician did not give the ordinarily approved treatment, it cannot be attributed to any want of care and prudence on Humphrey’s part in securing medical or surgical aid.

The judgment of the district court, we are of opinion, should be affirmed.

Judgment accordingly.


text:
    Cow Run Co. v. Lehmer.
    X. Where the owner of a quantity of petroleum delivered it for storage to a company formed for the purpose of transporting and storing such oil, and it was agreed by the owner and the company that certain allowances should be made for evaporation and certain charges be paid for storage, in an action by the owner against the company for an alleged conversion of the oil to its use, the allowance agreed upon for evaporation and the amount due for storage were proper subjects of counterclaim by the company.
    2. The conversion of the oil made the company liable for its value, subject to all allowances and charges agreed upon in the receipts of storage; and the owner could not defeat the right of the company to make such allowances and charges a counter-claim by bringing his action as one for trover at common law.
    Error to the Court of Common Pleas of Washington County, reserved in the District Court.
    The petition in the common pleas was as follows:
    The said plaintiff, James D. Lehmer, complains of said defendant, the Cow Run Iron Tank Company, for that on the 18th day of November, A. D., 1876, he, the said plaintiff, was the owner of and entitled to the immediate possession of the following described goods and chattels, to wit: Thirty-eight hundred and thirty and seven one-hundredths barrels of Cow Run, Ohio, crude petroleum of the value of $16,000; that on said 18th day of November, A. D., 1876, said defendant having obtained and then being in possession of said goods and chattels, and contriving to injure the said plaintiff, did wrongfully and unlawfully convert and dispose of the same to its, the said defendant’s, own use and benefit to the damage of said plaintiff, $16,000.
    Wherefore the said plaintiff prays judgment against said defendant for said sum of $16,000, his damages sp as aforesaid sustained.
    To this petition the defendant answered, first, denying the wrongful and unlawful conversion of the oil, as alleged in the petition; and second, it alleged as a counter claim, that the defendant was a corporation formed for the purpose of receiving, storing and transporting crude petroleum; that from the 10th day of October, 1870, to the 26th day of May, 1874, it received of the plaintiff, at his request, certain petroleum for custody and storage in tanks, in the aggregate 3,671 barrels; that said oil -was received by the defendant under an agreement whereby it was to store the same for a reasonable time, and on demand to deliver it to the plaintiff at the tanks where it was stored, less an allowance for evaporation agreed upon, and subject to certain charges for storage, also agreed upon. That the. terms and conditions upon which the oil was received by the company were: “ That the company shall have a lien upon the said oil for their advances and charges in respect of it, and the same are to be paid before the oil is delivered by the company, to wit: Charges — storage—for forty-eight hours from date, free. After forty-eight hours, and ten days from date, three cents per barrel. After ten days, and to twenty days from date, six cents per barrel, and one-half per cent, of the oil for evaporation. After twenty days, and to thirty days from date, eight cents per barrel and one per cent, per month of the oil for evaporation. For each month, or part of a month, thereafter, five cents per barrel per month from date, and one per cent, per month of the oil for evaporation. Said charges to be made on the quantity of oil received.” And further, that the defendant stored the oil until November 17, 1876, when after deducting for loss by evaporation, according to the receipt of storage, there remained only 1,812 barrels of the oil, and that at that time the charges for storage amounted to $7,249.24, which the plaintiff then refused to pay, and for the amount then claimed by the defendant to be due for storage above the value of the oil, the defendant asked judgment.
    To this defense the plaintiff demurred, and the court sustained the demurrer. Upon the trial the plaintiff gave in evidence the receipts given for the oil when it was delivered to the company, which contained the statement as to the terms and conditions upon which the oil was received, as stated in the answer.
    The court charged the jury at somewhat greater length than seemed necessary upon the issues on trial; but the part of the charge necessary to be considered now was: “ If you find from the evidence, by applying the rules of the law which I have given, that the plaintiff is entitled to maintain this action and to recover damages herein, as already said to you, the rule of damages will be the value of the oil received by the defendant at the date of conversion, less such deductions as you may find from the evidence the defendant is entitled to, for reasonable charges and any advances made by said defendant on any of the oil received by it, and also reasonable deductions for evaporation of said oil, and in consideration of this branch of the case you' may look to any and all the evidence bearing upon and relevant to it, including the certificates offered in evidence.”

      Sibley & Ewart and Walter S. Sands, for plaintiff in error:
    As to counter claim: Pomeroy’s Rights and Rem. (2d ed.), § 772; Thompson v. Kessel, 30 N. Y., 383; Gordon v. Bruner, 49 Mo., 570; Edwards on Bailments, § 257; Bigelow on Torts, 437; 25 Md., 269.

      E. A. Gruthrie and W. B. Loomis, for defendant in error.
   McCauley, J.

The plaintiff in the court below, deposited his oil with the defendant upon a definite agreement as to the rate to be allowed for evaporation, and upon certain rates to be charged by the defendant for storage. These rates are set up by the answer which was demurred to, and is therefore admitted. If they were not admitted, the receipts for storage given in evidence by the plaintiff show the agreement of storage to be as alleged in the answer.

These receipts make the company liable to re-deliver the oil, on compliance by the depositor with the conditions upon which the oil was to be re-delivered. If the company-failed or refused to re-deliver the oil on demand, and upon compliance by the depositor with the conditions upon which it was deposited, it became liable for the value of the oil subject to the charges for storage and allowance for evaporation. When the plaintiff brought his action for the non-delivery of the oil, he sought to enforce the agreement of storage so far as it was binding upon the defendant, and when the defendant set up as a defense the terms and conditions upon which it was liable tó re-deliver the oil, it set up the terms of the same agreement, so far as they were binding upon the plaintiff. The pleadings, therefore, on both sides set up the matters of agreement between the parties. The reason urged by the defendant in error why the matters alleged in the answer were not proper matter of defense was, that the action was trover, and in such an action matter of contract could not be alleged as counter claim. The petition alleges that the defendant wrongfully and unlawfully converted the oil to' its use. This language seems to have been used to turn the case from one upon contract to one of tort, and thereby to exclude set-off or counter claim; but when the answer alleges the agreements of the parties in reference to the subject matter of the action, the wrongful or unlawful conversion of the oil becomes of no consequence, and the action becomes one in which the rights of the parties are to be determined by their agreements concerning the subject matter in controversy between them. The dealings of the parties about the oil, admitted by the demurrer, show that while the company was liable to account for the oil, whatever liability attached to the plaintiff by reason of such dealings was a. proper counter claim, or at least to the extent of the plaintiff’s claim for the value of the oil, because it was a claim connected with the subject of the action. The cburt therefore erred in sustaining the demurrer to the answer.

Upon the trial, however, the receipts of storage were given in evidence by the plaintiff. These receipts showed, as before stated, what the agreements of the parties were about the oil, and the court instructed the jury to consider the receipts. This action of the court turned the action, at last, from one of tort to one of contract. But the jury were instructed that the rule of damages, in case the plaintiff was entitled to recover; would be the value of the oil at the time of the conversion, less such deductions as should be made for reasonable charges and any advances made by the defendant, and also reasonable deductions for evaporation. In thus instructing the jury the court was clearly in error.

If the receipts were properly in evidence, and their terms were binding upon the parties, they furnished the rule of liability between them, and the instruction that the jury might allow reasonable' charges and reasonable allowance for evaporation was,-in effect, to make a new contract between the parties instead of enforcing the agreement they themselves made. Instead of reasonable "allowances and reasonable charges, the defendant was entitled to the actual allowances and actual charges agreed upon in the receipts of storage to an amount equal to the claim of the plaintiff.

Judgment reversed.