author: Owen, C. J. Barrows, J., Allen, J.,

text:
    Rhodes v. Weldy.

      Wills — Provisions for after-born child — Construction of Sec. 5959 Pev. Stats.— Construction of ambiguous words and phrases.

    1. Where a testator devised his real estate to his wife for life, “ and after ■her death to the heirs of her body begotten,” a child born to him after the execution of the will is not “ provided for in the will,” in the sense of section 5959, Rev. Stats., which provides that: “'If the testator had no children at the time of executing his will, but shall afterward have a child living, or born alive after his death, such will shall be deemed revoked, unless provisions shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption or revocation shall be received.”
    2. Where the same word or phrase is used more than once in the same act in relation to the same subject-matter and looking to the same general purpose, if in one connection its meaning is clear and in another it is otherwise doubtful or obscure, it is in the latter case to receive the same construction as in the former, unless there is something in the connection in which it is employed, plainly calling for a different construction.
    (Decided January 29, 1889.)
    Error to tbe District Court of Mahoning County.
    The solution of this case depends upon the construction of section 38 of an act relating to wills, passed May 3, 1852, S. & C. Stat. 1622, which provides : “ If the testator had no children at the time of executing his will, but shall after-wards have a child living, or born alive after his death, such will shall be deemed revoked, unless provisions shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein, as to show an intention not to make such provisions, and no other evidence to rebut the presumption or revocation, shall be received.” (Sec. 5959, Rev. Stats.)
    The question in the case arises upon the following facts: In August, 1862, John Young made his will, by which he devised his real estate in the following words •

      “ Item first — I will and devise to my wife, Harriet Young, all my real estate wheresoever situate, to use and occupy as to her may seem proper during her natural life, and after her death, to the heirs of her body begotten; but should she die without issue, then I will and devise the same to Frank Young and Jennie Young, children of my brother "William Young, and to Eben Kirkpatrick, son of John Kirkpatrick, equally.”
    At the time of executing this will, the testator had no children. Soon thereafter, he enlisted in the United States Army, and remained in the service until April, 1865, when he died, seized of the lands in controvérsy, and named in the will.
    In December, 1862, Elizabeth Rhodes, the plaintiff in error, was born of Harriet Young, being the only child of the testator. The will was duly probated. Elizabeth received nothing from the estate óf the testator, and no provision was made for her by settlement.
    After the testator’s death, his widow intermarried with Samuel Weldy. To them were born five children, who are defendants in error, with their parents. Elizabeth intermarried with Washington S. Rhodes, her co-plaintiff, before the action below was commenced.
    The question at issue arose in the original action, which was one by Elizabeth to contest the will upon the alleged ground that it was revoked by the fact of her birth after the will was executed, she being unprovided for by it.
    The courts below held that the will contained a provision for her, and it is to reverse this holding that the present proceeding is prosecuted.

      Geo. M. Tuttle and Chas. Fillius, for plaintiff in error.

      J. R. Johnston and IT. H. Moses, for defendants in error.
   Owen, C. J.

If Elizabeth was provided for by the will of her father, it v'as not revoked by her birth after its execution, and the judgment below should be affirmed. If there was such provision made, it is to be found in these words: “I will and devise to my wife, Harriet Young, all my real estate wherever situate, to use and occupy as to her may seem proper, ■during her natural life, and after her death to the heirs of her body begotten.”

It will not be contended that this is-a specific provision for the plaintiff. If it is a provision at all, it is so because the-language is comprehensive enough to include her. It was-evidently written with a view only to the maternity of the “ heirs of her body begotten,” and without reference to their paternity. It was intended as a comprehensive direction of the course which the property should take after the immediate object of the testator’s bounty should die, unless she should die without issue, in which case, other direction is made in the' will. Much learning and research have been expended in discussing the character of the devise in remainder, and whether it is a vested or contingent interest.

In the view we take of the case, this is wholly immaterial. The question is, has Elizabeth “ been provided for in the will ”' in the sense of the statute. It is not conclusive of this question to say that a “disposition” has been made which may inure to her benefit. “ Disposition ” and “ provision ” are not-necessarily convertible terms.

This statute has not heretofore been construed by this court. The question is not new, however, to the courts of several of the states, and of England.

In Lamplugh v. Lamplugh, 1 Peere Williams, 111, the question was, whether a younger of two sons was provided for in a certain settlement. By that settlement an estate was-settled upon him expectant upon his mother’s death.

The Lord Chancellor held that the younger son was unprovided for, notwithstanding the expectancy settled upon him,, to take effect upon his mother’s death, “ for,” he said, “ the mother might survive the father many years, and in that time the younger son might starve if he were to have no other provision.”

The case of Willard’s estate, 68 Pa. St. 327, is, we think,, directly in point. The Pennsylvania statute, then in force (Brightly’s Purdon’s Digest, 1477), provided that “ when any person shall make his last will ,and testament, and afterwards shall mary or have a child, or children, not provided for in such will, and die, leaving a widow and child, or either a widow or child, or children, although such child or children be born after the death of their father, every such person, so far as shall regard the widow or child, or children after born, shall be deemed and construed to die intestate, and such widow, child or children, shall be entitled to such purparts, shares., and dividends of the estate, real and personal, of the deceased, as if he had actually died without any will.”

In that case, W. W. Willard, the testator, executed his will on the 29th of August, 1864, and died on the 2d of September following, leaving his wife, Catharine E. Willard, enceinte, and two children, Anna C. and Lizzie P. Willard, by a former wife. On the 25th of February, 1865, a little over five months after the death .of the testator, his widow gave birth to a son, Waldo Wickham Willard.

By the first item of his will, the testator gave the interest of three thousand dollars to his mother during her natural life, .and at the death of his mother “this bequest to revert to my children and heirs.” In the second item of his will he gave, among other things, a house and lot, which he valued at seven thousand dollars, to his wife, to be hers during her natural lifetime, and at her decease “ this bequest of seven thousand dollars, to revert to my heirs at law, share and share alike.”

In the opinion of Sharswood, J., it is said, page 330, “It is earnestly contended, that as this child Waldo would certainly be entitled to his equal share of these reversionary interests, he can not be said not to be provided for * * *. Here, however, there was, in effect, no present provision whatever. For all the purposes of education and support, and that for an indefinite period, this son is left entirely dependent upon his mother, unless, indeed, by a sale of his reversionary interest. * * But how could even a vested reversionary interest be a provision, unless by a present sale of such reversionary interest ? A contingent interest could also be sold. An interest may be vested, as in this case, although the period when it shall fall into possession is uncertain. Such an interest could not be sold for the maintenance and education of the minor, except at an enormous sacrifice. Yet, what could an orphan’s court do under such circumstances? Refuse to sell, and throw the child for maintenance and education on the public; or make a scanty provision for a short period, by an immediate sacrifice of all his future estate. We hold, then, that a i'eversionary interest,, whether vested or contingent, is not a provision for an after-born child, within the words or spirit of the statute.”

The question was again before the same court, in Hollingsworth’s Appeal, 51 Pa. St. 518, in which the court held that when “a testator gave all his estate to his wife, and if he should have any children living at his death, he appointed his-wife guardian of such children during their minority, committing entirely(to her affection, judgment and discretion, their-maintenance, education and future provision; and which guardianship I intend and consider as a suitable and proper provision for such child or children; ’ he had no children at the date of the will, but two were born afterwards. Held, that he died intestate as to the children.” Read, J., in delivering the-opinion of the court, said: “This is clearly no provision for his children, such as is contemplated by our wills act, and the-policy of the law.”

The act above mentioned is the same act that was in force-when Walker v. Hall, and the case of Willard’s estate, supra, were decided.

The case of Waterman v. Hawkins, 63 Maine, 156, is also suggestive. By section 8 of the Revised Statutes of 1871, of that state, page 564, it is provided that “ a child of the testator, born after his death, and not provided for in his will, takes-the same share of his estate, as he would if his father had died intestate.” And the question before the court was, whether, in the case under consideration, an after-born child was provided for, within the meaning of the statute.

The case arose out of the will of John P. McGlinchy, who died February 2, 1869, leaving his widow, enceinte, -and his father surviving him. His will was executed January 7th, preceding. A child, Gertrude, was born two months after the testator’s death. By his will the testator gave to his wife-the house, land, and furniture, where they lived, for her natural life, if she remained unmarried, providing, however, that “in case of her marriage the same is to become the-property of my heirs, and its use to revert to them; and, in-any event, after her decease, the same is to descend to my heirs.” All the rest of testator’s property was given to his father. The posthumous child, Gertrude, was the sole heir-at-law of her father.

The real question before the court was, whether a child of a testator, born after his death, can, in any proper sense of the term, be deemed provided for in the will, by a general devise of a reversion to the heirs of the testator ; and the court, all the judges concurring, held, it cannot be deemed so provided for.

Barrows, J.,

in the course of the opinion in that case, says :• A general devise of a reversion to the heirs of the testator,, constitutes no such provision. It would rarely be available for the support of the child, when support is most needed ; and while the insufficiency of the provision in the will might not entitle the posthumous child to claim a distributive share, in order to bar him it must definitely appear that some provision relating expressly to him, was made.” We are not required to say that if the child in such case was actually provided for by the execution of the will it must be considered revoked because the provision did not relate expressly to her.

So, a like statute has been recently before the Supreme Court of Massachusetts, in the case of Bowen v. Hoxie, decided September 5, 1884, and published in vol. 18, No. 23, of The Reporter, page 721, (Boston). The testator executed his will, February 28, 1880, and died, December 18, 1882, leaving a widow and six children by her, and three children of a former marriage. A little over three months after the testator’s death another child, Paulina, was born. The testator by his said will, besides other bequests to his wife and nine children,, then living, left the sum of $50,000 in trust, to pay the income to his wife during her life, and after her decease, to pay over the interest and income thereof, annually, in equal shares,, to my surviving children by my said wife Abby Elizabeth, with an ultimate distribution of the principal among them. There was no other provision for Pauline by the will, or otherwise. The Pub. Stat. C., 127, sec. 22 of Mass., provides that “ when a child of a testator, born after his father’s death, has no provision made for him by his father in his will, or otherwise, he shall take the same share of his father’s estate that he would have been entitled to if his father had died intestate.”

It was contended by counsel for the child, Pauline, that there was no provision for her in the will, within the meaning of the statute.

Allen, J.,

in the course of the opinion, says: “ In the opinion of the court, the claim, in behalf of Pauline must be supported. The will would have full effect without regard to Pauline. The share, if any, which she would receive, would come to her only as one of a class. The provision for her is an unintentional one. The most that can be said is, that the provision for a class happens to be broad enough to include her. It does not, under any construction, furnish any certain means for her maintenance and education during that part of her life when she would be unable to do anything toward her own support.

“ She might live long, marry, have children and die, without ever coming into the enjoyment of her share of an interest to which, as one of a class, she might be entitled. Such a result would not only shock the testator himself, but would be contrary to the common feelings of humanity. It is not necessary, and we do not think it is reasonable to hold, that a provision for a class, within which an uncontemplated child happens to fall, excludes the child from a proportionate share of the estate. The statute rather means to include cases where a child, born after the father’s death, has no direct specific or intentional provision made for him.”

“Its meaning is, if a father unintentionally omits to provide, in his will, or otherwise, for a child born after his death, or, in other words, if he omits to make a provision which is intended for such child, the child shall take the same share of estate that he would have been entitled to, if the father had died intestate. This contraction is in accordance with that adopted by the courts of several states, substantially similar.”

A case reported in 10 Ga. pp. 80, 81, 82, is instructive. The Supreme Court, construing a statute of that state, which is much like the Pennsylvania statute, says: “ The statute contemplates the present, or probable existence of the after-born child, in the mind of the testator, when he makes his will, and thereby makes a positive provision for such child. There being no such positive provision made by the testator in his will for this after-born child, we are of the opinion that this is a very clear case of intestacy under the statute.”

In the case at bar there surely was no provision for the present support and maintenance of Elizabeth. It is now nearly twenty-six years since her birth, and there has been no time since that event that she could assert a present interest in the estate left by the will of her father. She has passed from birth to womanhood and is now a wife, and not a penny of this “ provision ” which it is strongly contended was made for her in the will, has enured or could lawfully enure to her benefit.

If it be contended that the devise to her, or which is made in terms broad enough to include her, is a vested interest — one which she could sell and realize therefrom present means — the answer is that she might also sell a contingent interest or a mere expectancy, if in either case she should find an adventurer brave enough to take his chances in an investment so equivocal and unpromising. In that case a sale would probably be at a great sacrifice. She may live to middle age, and even to moderately old age, and still fail to realize upon ■ this alleged “provision,” unless she should in the meantime be unfortunately called upon to mourn her mother’s death. If she should die before her mother, it would result that she had passed through life without realizing the slightest benefit or assistance from the will. These considerations are suggested rather as illustrations of the practical workings of the rule contended for'than as rules or tests of construction. They serve to illustrate, also, the authorities which are above cited.

The able and industrious counsel for defendants have failed to produce a case which tends to cast doubt upon any of these .authorities, or to establish a different doctrine.

"We are fortunate, however, in finding in this statute very valuable aid in its construction. In the same section— indeed in the same sentence — we find substantially the same expression which has provoked so much discussion concerning what constitutes a provision in a will for an after-born child. The will shall be deemed revoked unless provisions shall have been made for such child by some settlement,” etc. In either case the statute contemplates provision for a child which we are to suppose will be of tender years and in present need of means of support. If there be provisions by settlement or provision by will, in either case (and in the one the same as the another,) the birth of a child after the execution of the will does not work its revocation.

Fortunately for us, provisions by some settlement ” is a phrase of easy construction. It certainly implies, if not a sufficient, at least a substantial, present means of maintaining the child. A settlement at once suggests the intervention of trustees upon whom is conferred a fund or property in some form which constitutes a source of maintenance, education, etc. A provision by some settlement which could not become available until the termination of a life tenancy or interest, and which depended upon the contingency of the beneficiary outliving the life-tenant, and which, in case of the latter surviving the former could never and would never be devoted to the uses to which it was appointed, would be a strange absurdity. Lamplugh v. Lamplugh, supra, is directly in point.

When we have ascertained what a provision for a child of tender years by some settlement is, we shall have made good progress in the solution of the question at bar. It would not be a sound proposition to say that the same word occurring in different places in the same statute always means the same' thing. It may sometimes call for a- radically different construction. But where the same word or phrase is used more than on’ce in the same act, especially in the same section and in the same sentence, in relation to the same subject-matter and looking to the same general purpose, it is a fundamental rule of statutory construction that if in one connection the meaning is clear and in the other it is otherwise doubtful or obscure, it is in the latter case to be construed the same as in the former. In Raymond v. Cleveland, 42 Ohio St. 529, it is said: “ Where the meaning of a word or phrase in a statute •is doubtful, but the meaning of the same word or phrase is clear where it is used elsewhere in the same act or an act to which the provision containing the doubtful word, or phrase has reference, the word or phrase in the obscure clause will be held to mean the same thing as in the instances where the meaning is clear.”

It is said in James v. DuBois, 1 Harrison (N. J.), 293: “ It is no doubt a rule of construction, that if a statute makes use of a word in one part of it susceptible of two meanings, and in another part of the statute the same word is used in a definite sense, we are to understand it throughout in that sense, unless the object to which it is applied, or the connection in which it stands, require it to be differently understood in the two places.”

In Pitte v. Shipley, 46 Cal. 160, the court say: It is a familiar principle of construction that a word repeatedly used in a statute, will be presumed to bear the same meaning throughout the statute, unless there is something to show that there is another meaning intended.”

This rule is peculiarly applicable to the question at bar. The general subject treated in these two expressions is the same, to-wit: A provision for an after-born child which shall save a will from the revocation which must otherwise result from the birth of such child after the execution of the will. Giving to the word “ provision ” in the one phrase substantially the same construction which the word provisions ” is clearly entitled to in the other, and the conclusion is that Elizabeth was not provided for in the will ” by the devise of the testator’s lands to his wife to use and occupy as to her may seem proper, during her natural life, and after her death to the heirs of her body begotten; and the judgments below are reversed, and the cause remanded to the circuit court for further proceedings.


source: Caselaw Access Project

author: Williams, J.

license: Public Domain

text:
    O’Dell, Assignee v. Leyda et al.

      Bailment — Bights of bailor and bailee— Warehousemen.

    1. A warehouseman received wheat from farmers, and stored it in his , warehouse, giving receipts for it, in the following form :
    “ Big Prairie, Sept. 9, ’82.
    “ Rec’d of George Leyda, 173 bu. 20-60 one hundred & seventy three bus twenty lbs of No 2 Wheat. Owner of stored wheat at their own risk.
    “W. H. Easterday & Bro.”
    Nothing was charged for storage, and no time was fixed during which the wheat should remain in store, except that it was to be left until the person storing it should be ready to sell. There was no agreement that the wheat should be mixed with other wheat, or, that the warehouseman might sell, ship, or consume it. When it was stored, the warehouseman mixed it with wheat of his own, of the same grade and quality, and sold from the common mass, but never more than his own quantity, always reserving enough to return to each depositor his proper quantity. Held:

      (a.) The transaction with each depositor constituted a bailment, and not a sale.
    (6.) The title of the depositors to their wheat was not extinguished, or transferred to the warehouseman, by mixing it with other wheat, belonging to him; but each depositor retained a property in his share of the common stock, and the warehouseman could not take from it more than his appropriate share, without a violation of his contract of bailment.
    2. Where a warehouseman, who has received on deposit in his warehouse, the grain of others, to be stored at their risk, mixes it with his own, and without authority from them, sells from the common mass, but never more than his own quantity, always reserving enough to return to each •depositor his proper quantity, of the same grade and quality, but not the grain so deposited, the depositors may claim the grain so substituted for their’s; and, if it be for their benefit to accept the substitution, such acceptance will be presumed, and their title upheld, against the warehouseman, and his assignee for the benefit of creditors.
    (Decided January 29, 1889.)
    Error to the Circuit Court of Holmes County.
    In September, 1882, William H. Easterday was a warehouseman, at Big Praire, in Holmes county; and on the 29th day of that month, George W. Leyda, the plaintiff in the action below, stored one hundred and seventy-three bushels of wheat in Easterday’s warehouse, and took from him a receipt in the following words:

      “Bio Prairie, Sept. 9, ’82.
    “ Rec’d of George Leyda 173 bu. 20-60 one hundred & seventy three bus twenty lbs of No 2 Wheat. Owner of stored wheat at their own risk.
    “W. H. Easterday & Bro.”
    There was no agreement that the wheat should be mixed with other wheat, or that Easterday might ship or sell, or otherwise dispose of it; nor was there any specified time agreed upon, during which the wheat should remain in the warehouse, but it was to be kept until Leyda was ready to sell.
    About the time Leyda deposited his wheat, several other farmers of that vicinity, in the same way, and upon like terms, stored in the warehouse wheat belonging to them, which, with Leyda’s wheat and wheat belonging to Easter-day, was mixed in a common mass in large bins kept in the warehouse. The wheat so mixed was of the same grade and quality. Easterday from time to time sold out of these bins, but always kept therein enough, and sometimes more than enough, to return to the persons so storing their wheat, their respective amounts. He never look out of the common mass more than his own, and always reserved the amount in store, but not the identical- wheat stored.
    , On the 25th day of January, 1883, Easterday made an assignment, for the benefit of his creditors, to John B. OdelL At the time of the assignment, Leyda had not sold his wheat, and there was in the bins in the warehouse enough of the wheat to restore to each of the depositors their respective quantities, and of a like quality and grade.
    The assignee took possession of the warehouse, and on the same day the sheriff levied an execution on the wheat, issued on a judgment against Easterday. Thereupon Leyda commenced his action of replevin against the assignee and sheriff, and under his writ took from the common mass the quantity of wheat so stored by him. The other depositors pursued the same course. On the trial of Leyda’s case the foregoing facts were established, and there was no substantial conflict in the evidence. At the conclusion of the argument, his counsel requested the court to charge the jury that “If the jury found that Easterday shipped from the common mass of mixed wheat, but always left more than was necessary to' meet the demand of depositors, including plaintiff, then plaintiff would have a right to replevy from the common mass enough to satisfy the amount he deposited.” The court refused to so charge, and on this subject instructed the jury that “If the stored wheat mixed with plaintiff’s wheat was sold and shipped, though kept separate from wheat intended for shipment, and other wheat was bought and put into the warehouse in the same bins where the stored wheat had been placed, then that would be a conversion of the wheat which would give plaintiff a different remedy. He then would not have the right to take by replevin — that is by this suit — the other wheat bought and placed in the bins in the same or different places from which the stored wheat was taken, though the amounts were exactly the same, but must bring his action for the price and value, or in this case present his claim to the assignee and collect his money for the value of the wheat as other creditors.” The plaintiff duly excepted, and the jury having returned a verdict against him, he in due time filed his motion for a new trial, which was overruled, and judgment entered on the verdict. He thereupon prosecuted error to the circuit court, where the judgment was reversed and the cause remanded for a new trial.
    To reverse which judgment of reversal the assignee prosecutes this proceeding in error.

      Samuel B. Eason and Newton Stillwell, for plaintiffs in error.

      Edward S. Dowell and Meed & Hoagland, for defendants in error.
   Williams, J.

The receipt which Easterday gave to the plaintiff, when he stored his wheat in the warehouse, interpreted according to its terms and commercial usage, evidences a bailment and not a sale; and the property in the wheat remained in the plaintiff. The obligation of Easterday was to use due care during his possession of it, and return it to the owner when he should require it. And this relation of the parties was not changed, or the plaintiff’s title extinguished, or transferred to the bailee, by mixing the wheat with wheat of like quality and grade, stored by others on like terms, or with the wheat belonging to Easterday.

' “ When the owners of wheat consent to have their wheat, when delivered at a mill or warehouse, mixed with a common mass, each becomes the owner in common with the others, of his respective share in the common stock. And this would not give the bailee any control over the property which he would not have, if the wheat of each one was kept separate and apart. * * * If a part of the wheat held in common belong to the bailee himself, he could not abstract from the common stock any more than his own appropriate share without a violation of the terms of the bailment.” Chase v. Washburn, 1 Ohio St. 244, 252.

It was held in Inglebright v. Hammond, 19 Ohio, 337, that “ where .a person taking his wheat to a mill to be ground, by the assent of the miller mingles it with the wheat of the miller, he does not thereby lose his property in the wheat, but retains a property in so many bushels of the common stock as he has put in ; although by a contract between the parties, the person delivering it is to receive a certain quantity of flour for a certain number of bushels of wheat.”

In Wells on Replevin, sec. 203, it is said that “where from the very nature of the property the different articles are incapable of being distinguished, and where such separation, could it be made, would not be of the least advantage to any one, the just rule and the current authorities is, that each must take his share from the common mass. Thus, when like grain of different owners is mixed, the separation is not only impossible, but the failure to make it can not injuriously affect either party in the slightest degree. And in all such cases when the mixture has been by consent, or under circumstances in which the mixture would be reasonably expected by both, or when it has been occasioned by accident, or mistake, and without any wrong intent, the law will give to each his just proportion, for the reason that in such case the mixture does not change the title, nor are the consequences such as follow the mixture of ingredients incapable of separation.” “ The law is well settled,”, says the same author, that, where property can not be identified or separated so as to be seized, replevin is not the proper remedy. But in cases like the preceding, where the goods mixed are of the same kind, though not capable of separation by identification, yet if a separation and delivery can be made of the proper quantity without injuriously affecting the remainder, each may claim his share from the general mass, and may employ. this action to secure it.” Wells on Replevin, sec. 205.

And Inglebright v. Hammond, supra, announces the same doctrine, as follows : “ Where .an article of the same kind and value, which is calculated by the bushel or pound, is mingled together by the consent of parties, each party is entitled to have divided to him so many pounds or bushels as he may have put in — and is recognized in law to have a property in so much as he may have put into the common stock.”

It remains to be considered whether the agreement of the parties, at the time the wheat was deposited, or their subsequent conduct, establishes a different relation between them, or materially affects their legal rights. There is no substantial discrepancy in the statement of the parties concerning the agreement, which simply was, that the wheat should be deposited free of storage at the owner’s risk, to remain in the warehouse until Leyda was ready to sell, when, it was expected Easterday would buy it, but if he did not, and it should be sold to another, he was to deliver to the purchaser. There was no agreement that Easterday might ship or sell the wheat, or have any dominion or control over it, other than its possession while it remained in storage. The agreement, therefore, did not constitute a sale, but a bailment. It appears from the testimony of Easterday, that Leyda and others brought their wheat to his warehouse to be stored, and it was put in bins with other wheat of the same grade and quality belonging to Easterday. Out of these bins Easterday sold wheat, but never took out more than his own. He says: I never took out of the common pile more than my own. I would take my portion and sell it. I always reserved the amount in store, but not the identical wheat.” He further testified that there was nothing said between him and the persons who stored their wheat about mixing it with his or other wheat. The practical question presented by the exceptions to the charge of the court, and the refusal to charge as requested, therefore is, whether, upon the-foregoing state of facts, it was essential to the plaintiff’s right to maintain his action of replevin for his portion of wheat from the common mass, that the specific wheat stored should continue to be part of the common mass from which the property was taken under the writ. In other words, does the fact that Easterday sold out of the common mass of stored wheat his own portion, but always keeping and reserving enough to meet the demands of his depositors, deprive a depositor of his remedy by replevin, unless it be shown that the identical wheat deposited remained and constituted part of the common mass ?

The jury were instructed, that if the stored wheat was sold and shipped by Easterday, though kept separate from wheat intended for shipment, and other wheat was by him put in its place, the plaintiff could not by replevin take his portion from the substituted wheat, but that his remedy would be to recover by action the value of the wheat, or present his claim therefor to the assignee as other creditors. This instruction is in no way qualified, nor is its application made to depend upon the agreement of the parties, or upon any other fact. It defeated the plaintiff’s action, if the jury found that the stored wheat had been removed by Easterday, although the agreement required that it remain in the warehouse, and gave Easterday no power of sale or disposition over it, and notwithstanding he substituted for it and in its place, other wheat of like quantity, grade and quality, for the purpose of preserving to the plaintiff the ownership of the property his receipt represented. There can be no doubt, that if, by the terms of the contract, Easterday had been authorized, at his pleasure, to take from the common mass of stored wheat, and appropriate it to his own use, or otherwise dispose of it, and pay for it either in money or with other wheat, the title atid dominion of the property would have passed to him upon delivery, as fully as in case of an ordinary £ale, and he would have become a debtor for its value. Chase v. Washburn, supra. Nor can it be doubted that where the contract is purely one of bailment, and the bailee in violation of his duty under it, sells the property, or converts it to his own use, the bailor may bring an action against him for its value; and it will be no defense that the bailee has put other like property in its place. But is that the only remedy of the bailor in such case ? May he not waive the tort and take the property? If the bailee chooses to supply the place of the property he has wrongfully disposed of, with other property of the same kind and value, why should he complain if the bailor, instead of suing for the wrong, take the property which has been put in the place of his ? A bailee, like other agents entrusted with property, holds by a delegated right, and, as a general rule, is not permitted to dispute the title of his principal, or set up any personal claim to the property, but is held bound to restore the property to his bailor; and, when a transfer of the property by the agent is tortious, the principal may elect to sue for the tort, or reclaim the property, or hold the agent as his trustee for whatever he has received for it. Wharton on Agency, sec. 240, 414.

And not only may the principal, in many cases, follow his own property into the hands of third persons, where it has been transferred or disposed of by an ■ agent, contrary to his instructions, or duty, but the principle is still more extensive in its reach ; for, if it has been converted into, or invested in other property, and can be distinctly traced, the principal may follow it, wherever he can find it, and as far as it can be thus traced, subject, however, to the rights of a bona fide purchaser for a valuable consideration without notice, in all cases where the latter is entitled to protection. It will make no difference, in law, as, indeed, it does not in reason, what change of form, different from the original, the property may have undergone, whether it be changed into promissory notes, or other securities, or into merchandise, <or into stock, or into money. For the product of the substitute for the original thing still follows the nature of the thing itself, as long as it can he ascertained to be such.” Story on Agency, sec. 229.

If Easterday had exchanged the grain which the plaintiff ■stored in his warehouse, for the wheat that was replevied, the plaintiff’s right to maintain the action would be indisputable ; and yet, in such case, the grain deposited would be removed, and other grain substituted for it. Exactly the .same condition ensued, when Easterday sold the stored wheat, ¡and put other wheat which he purchased in its place. Though .the transaction was not strictly an exchange, the substitution was complete; and unless substance must yield to name :and form, it can make no difference that the process by which the substitution was effected, is not called an exchange, and it was accomplished by two steps instead of one. “ Suppose, however,” says an able writer on this, subject, “the warehouseman having a large order to fill, and having grain enough on hand to answer that and satisfy all outstanding receipts, for convenience of loading empties the bins into the purchaser’s car, and immediately refills it with the amount for which his receipts are out. It seems pretty clear that the law ought not to say that the receipt-holders have no longer ■a right of property; but that it could with advantage presume from the ordinary course of business that the refilling ■of the bin amounted to an appropriation of the grain to the receipts, and that it was assented to by the receipt-holders.” “ The duty of owners of an elevator,” continues the same writer, “is not alternative, but single. It is to deliver the amount receipted for, and nothing else. It is further to keep that amount on hand in that elevator and to deliver from that elevator. This is wholly different from the undertaking of bankers. They do not assume any duty to keep on hand a pile of dollars or sovereigns, out of which a delivery, ■may be demanded by their customers. They are guilty of no breach of duty to him, if they part with their last coin, provided that when he draws on them they find means to honor his check. In the other case, there is a specific fund at every moment, determined by locality, either the bin or the elevator,, as may hereafter be held, to the whole or a part of which* the receipt-holder may look.” 6 Am. Law Rev. 467, 469.

There could have been but one purpose in always keeping on band, in the -warehouse, sufficient grain to return to the depositors their proper amounts, and that was to enable Easter-day to keep good his contracts with them, and meet his receipts-as they might be presented. The depositors were at liberty to regard his conduct in this respect as an appropriation-by him, of the necessary quantity of grain on hand, to meet their receipts and conti’acts; and, since such grain is the exact equivalent of, and undistinguishable from, that deposited by them, and the appropriation is manifestly for their benefit-,, their acceptance of it may be presumed. This is undoubtedly-so, as between Easterday and the depositors; for, if they choose to accept the substitution, he can not assert his own violation of obligation and duty, to defeat it. And we are of opinion that his assignee can not. In Grove v. Brien, 8 Howard (U. S.) .429, it is held, that where a manufacturer of goods consigns them to another, for the purpose of securing a pre-existing debt, there is no necessity of the consignee expressing his assent to the transfer, in order to the vesting of the title; and his title will be.upheld, as against attaching creditors of the consignor, whose attachments were levied before the property reached the consignee, and before he had. notice of the consignment. In the opinion of the court, Mr. Justice Nelson says : No expression of assent of the person for whose benefit the assignment is made, is necessary to the-vesting of the title, as the creditor is rarely unwilling to receive his debt from any hand that will pay him.”

Upon the same principle, where a warehouseman, -who has-received on deposit in his -warehouse, the grain of others, to be stored at their risk, mixes it with his own, and without authority from them, sells from the common mass, but never more than, his own quantity, always reserving enough to return to the depositors their proper quantity of the same grade and quality,, but not the grain so deposited, the depositors may claim the-grain so substituted for theirs; and, if it be for their benefit-to accept the substitution, such acceptance will be presumed, and their title upheld against the warehouseman and his assignee for the benefit of creditors.

This conclusion finds support in the case of Inglebright v. Hammond, before cited. That was an action of replevin by-Hammond for ten barrels of flour, which had been levied upon by Inglebright, a constable, as the property of Webb. Webb was a miller, and Hammond delivered wheat at the mill, under an agreement that Webb should grind it, and for • every four and one-half bushels of wheat furnished by Hammond he was to receive one barrel of flour; Hammond’s wheat was mixed with Webb’s, and from this mixed mass Webb manufactured flour and sold it to others. Before he had manufactured and delivered to Hammond all the flour he was entitled to, Webb absconded, leaving a quantity of wheat in the mill, which he instructed the miller to grind, and deliver the flour to Hammond. After it was ground the ■constable levied upon it at the suit of Webb’s creditors, and Hammond replevied. The trial court was requested to instruct the jury, that if they should find there was an agreement, express or implied, at the time the wheat was delivered, that Hammond was to receive flour for it, without reserving flour to be made out of the specific wheat delivered, that a sale of the' wheat, and not bailment is imported.” The court refused the charge, and this was assigned as error. In ■disposing of this assignment of error, it is said by Caldwell, J., in the opinion, that there was one proposition embraced in this charge that we think was erroneous; and that was, that if Hammond was to receive flour for the wheat, unless such flour was made out of the specific wheat delivered, the jury should consider it a sale of the wheat, and not a bailment. We have already given our views of the law in reference to the mingling of wheat by the consent of the owners, or other articles admitting of a similar division. Each party retains the property iñ a quantity equal to what he has put into the common stock. Nor do we think that it necessarily alters the case that the party is to receive his return in flour, .as is alleged in this case, at a barrel of flour for so many bushels of wheat. This is but another mode of dividing to-the party his property in the flour, in which it was agreed by the parties it should ja^received. If so many pounds of flour was considered as fequ^»ent to a bushel of wheat, then receiving flour at that' ráM would, to all intents and purposes, be the same as a division ofbthe wheat. We think then that it was not necessary to creaSSI^bailment, that the flour should be made out of the specific wheat delivered, and that the court did not err in refusing the charge.”

The case of Ledyard v. Hibbard, 48 Mich. 421, was very much like the one under consideration. The defendants, who were millers, received wheat from farmers and stored it in their mill elevators, giving receipts substantially like those-given by Easterday, except they contained the following additional clause: “ at 10 cents less Detroit quotations for same grade when sold to us.” The wheat was stored in bins, “from which the defendants drew from day to day, for the purpose of their business and manufacture. The quantity in the bins-changed from day to day, as it was depleted by drafts, and replenished by new deposits.” The defendants having failed, the plaintiff brought replevin for his quantity of wheat, and recovered. It was contended by the defendants that the-wheat was not delivered for storage merely, but that in addition to the bailment it was the understanding that it might be and would be put into the current consumable stock, and was therefore a sale.” On the other hand it was claimed by the plaintiff, that the storage of his wheat in the elevator made him owner in common with others, and he might reclaim his own at any time, so long as the requisite quantity remained. The contention in the case was whether the transaction constituted a bailment or sale; and it was held to be the former. Judge Cooley, in speaking of the legal consequences of such relation, and the legal rights of the parties in such case, says: “ If as warehousemen they gave warehouse l'eceipts for grain received in store, the receipts must be construed by their terms and by commercial usage; in commercial circles they would be understood to represent the title to the quantity of' grain specified; and though the quantity in store might fluctuate from day to day as grain would be received and delivered out, this would not affect the title of the holder of receipts, who would be at liberty to demand and receive his proper quantity at any time, if so much remained in store. But if the quantity in store is reduced by consumption instead of by shipment or sale, it is not apparent that the rights of the holder of the receipts should be any different. It is true if the wheat is all consumed, and the amount in store is not kept good so that a demand for the wheat can be responded to, and if the consumption is by consent of the owner, express or implied, the consumption under such circumstances may be justly regarded as a meeting of the minds of the parties upon a sale; but so long as grain is kept in store from which the receipts may be met, the fair presumption is, that it is intended they shall be so met; and this presumption would only be overcome by some act unequivocal in its nature.”

Whatever difference of opinion there may be, as to whether the facts of that case created a bailment, it having been held to be such by the court, the legal consequences ascribed by the learned judge to that relation of the parties meets with our approval.

We are therefore of the opinion that in giving the instruction to the jury complained of, without the qualification contained in the charge requested, the court of common pleas erred, and its judgment was properly reversed.

Judgment affirmed.


author: Spear, J.

text:
    Ensel v. Levy & Bro.

      Estoppel in pais — When it arises. ■

    An estoppel in pais arises where one is prejudiced by the willful act or declaration of another upon whose' conduct the former has rightfully acted. Hence, where the owner of goods sells to one on credit, and knowingly delivers to him a receipt drawn in such form, .and given under such circumstances as to cause an innocent purchaser, buying from the vendee, rightfully to believe that the goods will be delivered upon compliance by said purchaser with certain conditions in the receipt contained, and he parts with his money in good faith upon the belief thus created, such purchaser has the right to avail himself of the terms of the contract and the vendor is estopped to afterward set up a lien for purchase-money and insist upon its payment as further condition to delivery of the goods.
    (Decided January 29, 1889.)
    Error to the Superior Court of Cincinnati.
    This action was brought to recover the sum of eighteen hundred and thirty-seven dollars, being the value of seventy-live barrels of whisky alleged to be the property of plaintiff, which defendants had converted to their own use. At the trial in the superior court, judgment was given for defendants.
    From the finding of facts made by the court, it appears that in 1880 and 1881, and before and since, Thomas B. Ripy was owner and manager of a distillery, near Lawrenceburg, Anderson county, Kentucky, which distillery was a government bonded warehouse. In 1881, the defendants, who resided and did business then and since in Cincinnati, Ohio, purchased of said Thomas B. Ripy a large number of barrels of whisky, made and stored in said distillery and warehouse, including .the barrels of whisky in litigation in this action, and paid for the same. Ripy gave therefor, to the defendants, warehouse receipts, among which were fifteen corresponding in serial numbers and number of barrels to the whisky referred to in the petition. The defendants, on the 8th of September, 1881, .sold to G. Baum, doing business as G. Baum & Co., of Memphis, Tennessee, the barrels of whisky in litigation in this action, the sale being transacted at Memphis, Tennessee, through a broker of the defendants, and being a sale upon time, at four months. On September 8, 1881, the original warehouse receipts of Ripy, hereinbefore referred to, for the whisky in litigation, were attached to a note at four months, and sent by the defendants to Baum & Co., at Memphis, to be. signed, but were returned by the latter firm to the defendants, both note and receipts, they refusing to sign the note with the warehouse receipts attached to it. Afterward, on October 29, 1881, Baum Co. signed three acceptances due in four months, and the defendants, retaining, with the knowledge of Baum & Co., the original warehouse receipts (which were intended to be delivered if they had accepted them and attached them to the note), •sent them the fifteen so-called warehouse receipts referred to in the petition, of the serial numbers and number of barrels set forth in said petition, and which were in form following:

      “ Distillery Warehouse Receipt. Cincinnati, September 8, 1881. Received in the bonded warehouse of Thos. B. Ripy’s Distillery No. 112, fifth district of Kentucky, the whisky hereinbelow described. To be held for account of and subject to the order of G. Baum & Co. Deliverable only on return of this receipt to us properly endorsed, and on payment of U. S. Government tax and charges on same. Storage on said whisky •at the rate of five cents per barrel per month, from Sept. 8, 1881. Loss or damage by fire, the elements, shrinkage or ■natural decay, at owner’s risk.”
    Then followed the marks and serial numbers, number of gallons, distiller’s name “ Thomas B. Ripy, Fifth District Kentucky,” and number and description of packages; twenty of the receipts being for five barrels each, and one for nine, and the serial numbers corresponding to the number in the receipts from Ripy. Upon the face of each was the following: Notice. In order to insure prompt withdrawal, send this warehouse receipt with your order. No whisky will be unbonded unless the warehouse receipt accompanies the order, for credit of the quantity withdrawn.” In the margin was printed the Kentucky law entitled “ an act in relation to ware-housemen and warehouse receipts.” These receipts were signed, “ James Levy & Bro.” . .
    The whisky was then, and has always been and still is, in Ripy’s distillery warehouse. The acceptances of Baum & Co., given as aforesaid, were not paid, and said acceptances are, and have been, in the possession of the defendants from that ' time. Baum & Co. never paid for the whisky.
    Afterward the receipts were pledged by said Baum & Co. as a security for a loan of about $2,700 then obtained thereon by said Baum & Co. from Walker’s Sons & Co., of Memphis, Tennessee, who received the receipts in the due course of business as security for the loan, and as representing the whisky referred to thei’ein. Afterward, on the 18th of November, 1881, Baum & Co. made an assignment, under the insolvent laws of Tennessee, for the benefit of their creditor’s. After the assignment, the loan of "Walker’s Sons & Co. remaining unpaid, said receipts came into the possession of the plaintiff by purchase for value, in the due course of trade from Walker’s Sons & Co., which sale of whisky, as represented by said z’eceipts by-Walker’s Sons & Co. to the plaintiff, was upon due and proper notice to Baum & Co. The plaintiff pur-chased the same “ without knowledge or notice of the fact that the defendants, retained in their possession the warehouse receipts issued by Ripy, except that notice thereof was conveyed upon the face of the so-called warehouse receipts themselves, and by the. statutes of the United States.”
    That, at the date of the purchase by said Baum & Co., they were insolvent in the popular sense, that is, were unable to pay their debts, including the one to the defendants, had they been presented for payment at that time, and continued so insolvent until the maturity of this debt, and until after plaintiff’s, demand for the delivery of the whisky in suit, and continue still so insolvent. That the value of the whisky, when demand was made, over and above storage charges, was the amount agreed upon by the parties; that is, eighteen hundred and forty-five dollars ($1,845).

      Long, Avery, Kramer & Kramer, for plaintiff in error.

      •J. Shroder and Wilby & Wald, for defendants in error.
   Spear, J.

The case seems to have turned in the superior-court upon the question whether or not the receipts delivered by the defendants to Baum & Co., were warehouse receipts, and much argument has been adduced in the briefs of counsel upon that question. But we think the real question is not whether those papers w&re, in form or substance, warehouse receipts, but whether or not the firm which executed and put-them in circulation may, as against an innocent holder, be-permitted to set up any claim to the property, or insist upon any condition of delivery other than those contained in the instruments. Can they now allege that the purchase-money has not been paid, and make such payment a condition of delivery of the goods? In other words, do the facts show a case of estoppel in pais?

The general doctrine of estoppel is stated in varying forms. Blackstone says an estoppel arises “ where a man hath done some act, or executed some deed, which estops or precludes him from averring anything to the contrary.” Coke says it arises “ where a man is concluded, by his own act or acceptance, to say the truth.”

Swan, J., in McAfferty v. Conover, 7 Ohio St. 105, observes that “ estoppels in pais are not allowed to operate, except where, in good conscience and honest dealing, the party ought not to be permitted to gainsay his admission. And, in general, the act or declaration of the party must be willful, that is, with knowledge of the facts upon which any right he may have must depend, or with an intention to deceive the other party,”' though, farther on in the same case, he adds: “ Whether it be a rule without exception, that an estoppel in pais must always be accompanied with the willful act or declaration of the party upon whom it is to operate, we do not decide.”

In Beardsley v. Foot, 14 Ohio St. 416, Scott, J., remarks : “We think an estoppel may arise from admissions and declarations made without any fraudulent purpose. The circumstances may be such, that ‘good conscience and honest dealing’ may require a party to bear the consequences of his own negligent mistake, instead of throwing the resulting loss upon another whom he has misled.” In this case Foot had purchased land upon which Beardsley had a lien. Before doing so he applied to the latter — whom he found attending an agricultural fair — for the purpose of ascertaining whether he held any claim or lien upon the land, informing him that he (Foot) expected to purchase if he could get a good title. Beardsley, in reply, gave a positive assurance that he had none, and Foot, relying on this assurance, purchased and paid for the land. An examination of the county records would have disclosed the lien. Beardsley was held estopped to set up his lien as against Foot’s title. The syllabus is: “Admissions m pats, though made in good faith, may yet be made under such circumstances as to operate by way of estoppel, and preclude the party from afterward gainsaying them.”

In McKenzie v. Steele, 18 Ohio St. 41, Welch, J., says: “ To work an estoppel there must be prejudice to the party setting it up, and also fraud or bad faith — or their equivalent, gross negligence — in the party to be estopped.”

In Pickard v. Sears, 6 Ad. & Ell. 474, the rule is stated thus : “ Where one, by his words or conduct, willfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.” And Parke, B., in Freeman v. Cooke, 2 Exch. 662, giving assent to the above rule, adds: “ By the term willfully,’ however, in that rule, we must understand, if not that the party represents that to be true which he knows to be untrue, at least, that he means his representations to be acted upon, and that it is acted upon accordingly; and if, whatever a man’s real intention may be, he so' conducts himself that a reasonable man would take the representation to be true, and believe that it was meant that he should act upon it, and did act upon it as true, the party making the representation would be equally precluded from contesting its truth.”

From the foregoing, it is fair to assume, that where one, by his acts or declarations, made deliberately and with knowledge, induces another to believe certain facts to exist, and that other rightfully acts on the belief so induced, and is misled thereby, the former is estopped to afterwards set up a claim based upon facts inconsistent with the facts so relied upon, to the injury of the person so misled. Applying this rule reasonably to the case at bar, what answer should be made to the demand that new conditions as to delivery shall now be attached to the receipts ? By their refusal to execute the note with the warehouse receipts attached, Baum & Co. gave the defendants clearly to understand that they would not assent to the condition thus imposed, and as clearly indicated that the possession of apparent title to the goods without condition, save as to payment of government tax and storage, would be insisted upon. Acceding to this, the receipts signed by Levy & Bro. were substituted, and the acceptances taken by defendants in place of the note. This change was desired by Baum & Co., in order that they might make use of the receipts to raise money, and this purpose, or one of equivalent nature, must have been inferred by Levy & Bro. At least, as reasonable men, they ought to have known or inferred it. Of whaj; possible use could the substituted receipts, in the form they were given, have been to Baum & Co., if not for just such purpose ? And it is not improbable that Levy & Bro. assumed that the possession of the receipts, printed in the form they appear, would the more easily enable Baum & Co. to make sale of the goods, and thus the acceptances received by them the more surely be paid. Such expectation would not have been an unreasonable one. At all events, they issued the receipts with notice that they might be so used. Can they now, as against an innocent purchaser, disclaim knowledge of an intention to so use them ?

The receipts were in a form well calculated to deceive. They were gotten up in the similitude of real warehouse receipts. The heading was “ Distillery Warehouse Receipt.” The only conditions attached to delivery are return of receipt and payment of tax and storage. In the body it is recited that the whisky is held for account “ of and subject to the order of G. Baum & Co., deliverable only on return of this receipt to us properly indorsed, and on payment of U. S. government tax and charges on same.” At the foot the notice printed is: In order to insure prompt withdrawal, send this warehouse receipt with your order. No whisky will be unbonded unless the warehouse receipt accompanies the order, for credit of the quantity withdrawn.” On the margin of each, as on each warehouse receipt, was printed in full the laws of Kentucky, relating to warehousemen and warehouse receipts, though, except to facilitate deception, that act had no more to do with the receipt than a chapter from the Koran. A purchaser would naturally be led to suppose the receipt to be what its appearance indicated, to regard it, like a bill of lading, as embodying in one paper a receipt and a contract— a receipt as vendor that payment of purchase-money had been made, and a contract as bailee to hold the legal possession (though the manual possession was in Ripy), for the owner, whoever he might be. Taken altogether, a paper better calculated to mislead can hardly be conceived. The finding of the trial court is that plaintiff’s assignors were misled by it. They parted with their money on the faith of it. They were bona fide purchasers. The pledge came to them “ in the due course of business,” and “came into the possession of the plaintiff for value, in the due course of trade, from Walker’s Sons & Co.” These parties had no knowledge that the goods had not been paid for, nor that real warehouse receipts were in the hands of Levy & Bro. Indeed, they had excellent reason for believing that no such receipts existed. Not only was each papár headed “ Distillery Warehouse Receipt,” but, at the foot was the direction: “Send this Warehouse Receipt.” Would any reasonable man have assumed that Levy & Bro. had in their possession other receipts ? The clause in the finding that “plaintiff purchased without knowledge or notice that defendants retained in their possession the warehouse receipts issued by Ripy, except that notice thereof was conveyed upon the so-called warehouse receipts themselves and by the statutes of the United States,” is in reality a finding of law rather than fact, and is but the expression of opinion of the court that such notice was so given. But was it? The statute referred to makes no provision for the issuing of warehouse receipts An order or permit addressed by the collector to the storekeeper is the sole formality necessary to authorize withdrawal. Not only a distiller, but an owner, can store there. To take whisky from bond the former would be required to pay the tax and obtain the necessary permit; the latter, in addition, would simply have to pay storage. So the fact, that, as indicated by the receipts, the whisky was in Ripv’s waz-ehouse, meant only that.it was there.held for the owner, and was notice to nobody beyond that. Ripy had been paid for the whisky, and had no claim save for storage. Inquiry of him, therefore, would have developed only that fact— •already shown by the receipt. This claim plaintiff offered to pay, as well as the tax, before bringing suit.

■ It is not necessary that we find a fraudulent purpose on the part of defendants — gross negligence is sufficient. That, we think, abundantly appears, and they shall not now be heard to attach new conditions. The fair inference from the language of the receipt is, that the property will be delivered to Baum & Co., or their order, upon compliance with the conditions named. If any other claim existed, it should have been stated in the receipt. To assert such a claim now, against an innocent purchaser, is bad faith, and to support it would work ■a fraud on the plaintiff.

The case at bar is clearly distinguishable from that of Bank v. Walbridge, 19 Ohio St. 419. In that case certain ware-housemen (Walbridge & Co.), on application of the owner, by mistake issued to the latter, at different dates, two warehouse receipts for the same property, the last of which the ■owner assigned for value to the plaintiff, to whom the defendants, the warehousemen, on demand, delivered the property. Afterwards, the assignee of the first receipt recovered the property in replevin from the plaintiff, and suit was instituted by him to recover from defendants, Walbridge & Co. The court held that in the absence of all fraud, the defendants were not estopped from showing, as against the plaintiff, the mistake in the giving of the last receipt, as a defense to the action. In the opinion, White, J., uses this language: “ The issuing of the receipt in this case involved no element of bad faith, but was simply a mistake of the defendant, which he was influenced to commit by the application of Lewis, whose ■conduct distinctly implied that no receipt had before been .given for the forty-two barrels.” In the case at bar, there is no element of mistake, but one of gross negligence, the equivalent, in law, of bad faith and fraud. There, the receipt was .issued by mistake; here, it was done intentionally, willfully.

Courts have shown extreme reluctance to permit vendors to ■.contradict instruments of this character. A strong case in point is that of Chapman v. Searle, Adm’r of Whiting, 3 Pick. 38. Whiting gave to one Ludlow a receipted.bill of parcels for 300 barrels of beef, and a certificate that he held them for the latter on storage, Ludlow giving a promissory note for the amount, payable to Whiting, or order. Afterward, the note not being paid, Ludlow made an assignment to plaintiffs, as-trustees for the benefit of creditors, including the beef. In trover by the assignees the court held that the defendant was estopped to say he never had any such goods; that the property vested in Ludlow, and that the defendant had no lien for the price of the goods. See, also, Stonard v. Dunkin, 2 Camp. 344; Freeman v. Cooke, supra, 662; Merchants’ Banking Co. v. Steel Co., L. R. 5 Ch. D. 205, 216, 217; Cuming v. Brown, 9 East. 505.

It is insisted that the receipts were to be acted on only by Baum & Co. — that the contract was exclusively between that firm and the defendants, and that where a representation is made only to one person, no other person can claim it as an estoppel. The very face of the receipts contradicts this claim. The terms imply that they may be assigned. “To be held for account of and subject to the order of G. Baum & Co.,” * * “this receipt properly indorsed,” is the language. The representations in this case cannot be confined to such narrow limit., On the contrary, the representations here made were of that class that are considered as addressed generally to all who may, in the ordinary coui'se of business, have occasion to act upon them, and where a person so acting, may claim them as an estoppel. Pence v. Arbuckle, 22 Minn. 417; Bigelow on Fraud, 89, 90.

The defendants are estopped to set up a vendor’s lien. Judgments below are reversed, and

Judgment for plaintiff,


author: Minshall, J.

text:
    Farr v. Ricker.

      Indorsement — Blank—Parol testimony not admissible to vary — May be reformed in equity — Proof required — Practice—Refusal to consider inconclusive evidence, not error to substantial rights.

    1. The indorsement of a negotiable promissory note, made to transfer the title to one who has purchased it for value, is, though in blank, an abbreviated contract in writing, whereby the indorser binds himself to pay the note if on presentment the maker does not, and due notice is given him of such non-payment; and, in the absence of fraud or mistake, the legal effect of such indorsement cannot be varied by parol.
    2. A blank indorsement may, like any other written agreement, he reformed upon equitable principles, in an action on the indorsement, for the purpose of a defense. In such action the cause of reformation should be stated by way of cross-petition with a prayer for such relief; and the averments should be supported by clear and convincing proof, to warrant the relief.
    3. Where, in an action on an indorsement, evidence is offered by the defendant in support of averments in his answer, which, if true, would make the enforcement of the indorsement operate contrary to the contemporaneous agreement of the parties and a fraud on the rights of the indorser, the liberal principles of our code would, in a trial to the court, authorize it to receive the evidence and permit an amendment of the pleadings; hut where the evidence is contradictory and inconclusive, the refusal of the court to consider the evidence, is not error to the prejudice of the substantial rights of the indorser.
    (Decided January 29, 1889.)
    Error to the Circuit Court of Butler County.

      Thomas Millikm, for plaintiff in error.

      Morey, Andrews & Morey, and P. G. Gonklin, for defendant in error.
   Minshall, J.

The suit below was upon the blank indorsement of a promissory note by tbe defendant, Ricker, to the plaintiff, Farr. The petition contains the necessary averments to show the liability of the defendant as an indorser; but among other defenses, tbe defendant set up that at the time be made the indorsement, there was a parol agreement between them that he was not to be liable as an indorser, in other words, that the plaintiff was to take the note without recourse. This was denied by the plaintiff, and, a jury having been waived, the case was tried to the court, which found for the plaintiff, and, after a motion for a new trial had been made and overruled, rendered judgment for the plaintiff. The judgment was reversed, on a proceeding in error by the circuit court, on the ground, as stated in the entry, that the court held, “as incompetent, and excluded from consideration, defendant’s verbal evidence, which tended to show that he wrote his name on the back of said note without recourse, or tended to show a verbal agreement between said parties, that the defendant was not to be held liable as an indorser on said note.” Evidence to this effect had been introduced by the defendant, which on motion was ruled out. The note had been purchased by the plaintiff of the defendant for value in the due course of business, and the indorsement was made to transfer the title. So that the case presents the question, whether parol evidence is admissible for the purpose of varying the legal effect of such an indorsement. There has been some conflict in the decisions as to this, but it now seems that the decided weight of authority is against its admission for such purpose. Its admission has generally been placed on the ground, that the contract of indorsement is an implied one, not in writing, and so not within the rule excluding parol evidence offered for the purpose of varying, or contradicting the terms of a written agreement. But this is not the generally received opinion, and is contrary to the usage and understanding of the commercial world. It is said by Justice Matthews in Martin v. Cole, 104 U. S. 37: “The contract created by the indorsement and delivery of a negotiable note, even between the immediate parties to it, is a commercial contract, and is not in any proper sense a contract implied by the law, much less an inchoate or imperfect contract. It is an express contract, and is in writing, some of the terms of which, according to the custom of merchants and for the convenience of commerce, are usually omitted, but not the less on that account perfectly understood. All its terms are certain, fixed, and definite, and, when necessary, supplied by the common knowledge, based on universal custom, which has made it both sáfe and convenient to rest the rights and obligations of parties to such instruments upon an abbreviation. So that the mere name of the indorser, signed upon the back of a negotiable instrument, conveys and expresses his meaning and intention as fully and completely as if he had written out the customary obligation of his contract in full.” And it was there held that parol evidence is not competent to contradict or vary the legal effect of such an indorsement; and it is also stated that the cases in support of the rule “are too numerous for citation.” Regarding the indorsement, though in blank, as an abbreviated written agreement, all of whose terms are, by usage and custom, made definite and certain, such would seem to be the logical result of the previous decisions of this court. Thus it has been applied in a number of cases to the making of a note. Titus v. Kyle, 10 Ohio St. 444; Collins v. Insurance Co., 17 Ohio St. 215; to the drawing of a bill, Cummings v. Kent, 44 Ohio St. 92; and, also, to the acceptance of a bill, Robinson v. Kanawha Bank, 44 Ohio St. 441.

There are some exceptions to the rule : It is competent to an indorser to show as against his indorsee, that they became parties to the paper, for the accommodation of th.e maker or some other party, though in so doing, he may change his apparent liability to his indorsee. This is illustrated by the early case of Douglas v. Waddle, 1 Ohio, 413, and numerous cases elsewhere, on the ground that such evidence does not vary the contract, “ but, admitting its efficacy, would sho w.how the parties had agreed to bear the burden of it if need were.” Big. Lead. Cases, Bills & Notes, 169. It is also competent for an apparent indorser as against his immediate indorsee, or one with notice, to show that his indorsement was without consideration; for this is no more than may be done by a makér, drawer or. acceptor under like circumstances. Or he may show that his name was placed on the paper for a different purpose, than to transfer the title to the indorsee. The case of Morris v. Faurot, 21 Ohio St. 155, cited and much relied on by counsel for the defendant in error, is of this class. That such was the ground of the decision, is apparent from the facts, and the language employed by the judge in delivering the opinion of the court. He says: “A blank indorsement, which evidences a contract, the terms of which can not be contradicted or varied by parol testimony, is one made in the usual course of business, for the purpose of transferring the title or giving credit to the paper. The defense in this case was, that no transfer of title was intended, nor was credit intended to be given this note by the transaction, but that it was paid and discharged by the makers through and by the plaintiff, who was acting for them and at their request,” and that the defendant simply indorsed his name on the note to enable the plaintiff to show the makers that he had paid it. The case of Hudson v. Wollcott, 39 Ohio St. 618, also falls within this distinction. The name of Burt, who was sought to be made liable as an indorser, had, for the purpose of collection by the savings bank, been indorsed on the note some months before its transfer to Hudson, and the issue was whether this indorsement had been adopted in the transfer of the note to Hudson. Burt claimed that by the agreement Hudson was to take it without recourse, and that the omission to erase the indorsment was an oversight. It was held that he might do so. Morris v. Faurot, is cited and relied on, which shows that the judge did not intend to announce, as the facts of the case did not require, any rule different from that applied in the former case.

A further exception is made, that is more apparent than real, in favor of the indorsee, by which he is permitted to show a parol waiver of demand and notice. The cases of Dye v. Scott, 35 Ohio St. 194, and the second branch of Hudson v. Wolhott, supra, are of this character; and also, McMonigal v. Brown, 45 Ohio St. 499. The exception is on the ground that demand and notice is not a part of the contract,' but a mere step in the remedy, which may be waived by the indorser. By]. Bills, 6th Am. Ed. Sharswood’s Notes, 160 ; Bassenhorst v. Wilby, 45 Ohio St. 333, 339 ; 1 Par. N. & B. 584.

The limits fixed by these exceptions, confine the rule to an indorsement made for value in the usual course of business for the purpose of transferring the paper or giving it credit ; and within these limits, the rule is general that a contract of indorsement as interpreted by mercantile law, though in blank, can not be varied by parol evidence of what was then agreed on by the parties. The case of Bailey v. Stoneman, 41 Ohio St. 148, is claimed to be opposed to this. The indorsement sued on in that case had been made in performance of a previous contract for building a house. The builder had agreed to take the note secured by mortgage in part payment for his work. The house was built, and the indorsement then made according to the previous agreement, The plaintiff, a subsequent indorsee, knew the facts. The court held that the indorsement being in blank, parol evidence of what was said by the parties in and about the transfer was properly admitted. If this case can be construed to hold that such evidence of a parol agreement, made at the time of the indorsement for the purpose of- varying its effect, is admissible, it is contrary to the subsequent case of Cummings v. Kent, supra; for it is there held that such evidence is not competent for the purpose of varying the liability of a drawer of a bill, and the drawer of a bill is, according to mercantile law, the same as the indorser of a note, or, in other words, every indorser of a note is regarded as the drawer of a new bill. And as Cummings v. Kent is the later case, the rule established by it should be followed until it is overruled. We are virtually asked to do so ; but this we are not disposed to do, as it is supported by, not only what seems to be the better reason, but also, the greater weight of authority. Bigelow’s N. & B. 178, § 3; Byl. Bills (7 Am. Ed. Sharsw.), 101 n. 1; 2 Whart. Ev. § 1059 n. 2; Benjamin’s Chalmer’s Dig. Art. 56; and cases cited in Cummings v. Kent, 44 Ohio St. at p. 97; Castle v. Rickley, 44 Ohio St. 490.

That an indorsement may be reformed in equity on the ground of accident, fraud, or mutual mistake, so as to make it conform to the real intention of the parties, as any other written agreement, will not admit of much doubt. In the case of McElvain v. Merchants’ & Farmers’ Bank, decided by this court a,t the January term, 1887, but not reported, in which the defendants below, who had been sued upon a note signed in their individual capacities, answered by way of cross-petition, that by mutual mistake the note had been so signed, when by the agreement of the parties it should have been made the note of the association of which they were directors, and asked for a reformation, it was held that the action was appealable ; which, under our practice, was simply a holding that the parties were entitled to the relief they asked in case the averments were supported by proper proof. But such remedy must have been obtained, either by a suit for that purpose or by cross-petition in an action on the indorsement, before it can be relied on as a ground of defense. In such case the issue is triable to the court and must be sustained by clear and convincing proof, as in all similar cases, before the reformation can be had. This remedy affords a sufficient protection against any possible wrong that may result from the rule at law, and adequately protects the holder of negotiable paper.

There was no averment of any mistake or fraud contained in the answer, and no reformation was asked; and the evidence introduced, and not considered by the court, was insufficient to warrant a reformation, had it been asked. It consisted of the evidence of the defendant contradicted by that of the plaintiff; so that, were we, under the liberal principles of our code, to regard the answer as in the nature of a cross-petition for a reformation of the indorsement, which it is not, still the refusal of the court to consider the evidence could not be assigned as a ground of error, since, had it been considered, it would have been the duty of the court, by reason of the insufficiency of the evidence, to deny the relief; and it, alone, was the proper tribunal to consider it. Hence, in any view, there was no error to the prejudice of any substantial right of the party in the ruling of the court.

Judgment of the cireuit court reversed, and that of the common pleas affirmed.


author: By the Court.

text:
    Commissioners v. Osborn et al.

      Attorney appointed to assist prosecution — Compensation—No appeal from allowance by commissioners.

    There is no appeal from the amount allowed by the commissioners to an attorney appointed by the court to assist the prosecution in a criminal ease.
    (Decided February 5, 1889.)
    Error to the Circuit Court of Geauga County.
   By the Court.

The defendants in error, attorneys-at-law, were appointed by the Court of Common Pleas of Geauga County to assist the state in the prosecution of an indictment found by the grand jury; and, at the termination of the prosecution, were allowed by the court for their services rendered under the appointment, the sum of $800; this sum, on presentation of the claim to the commissioners, was reduced by them, to the sum of $300, in the exercise of the power conferred on them by the provisions of § 7196, Revised Statutes, to the effect that the compensation to be paid an attorney for services so rendered, should be such sum “ as the court approves, and to them (the commissioners) seems just and proper.” From this allowance as made by the commissioners, the attorneys appealed to the court of common pleas. A motion was made by the commissioners to dismiss the appeal on the ground that the case was not appealable, and that the court, for such reason, had no jurisdiction. The motion was overruled and judgment rendered for the sum of $800 and interest; which judgment was on error affirmed by the circuit court.

Held, that no appeal lies from the final allowance made by the commissioners for services rendered by an attorney in such ease. We can see no difference in principle between an allowance made to an attorney appointed to assist the prosecution, and that of an allowance to one appointed to defend the accused ; and as it was held in Commissioners of Geauga County v. Ranney, 13 Ohio St. 388, that there is no appeal from the allowance made an attorney appointed to defend, like reasons require us to hold that there is no appeal from the allowance made by the commissioners to an attorney appointed to assist the prosecution. The power reposed in the commissioners is discretionary and final. The case of Shepard v. Commissioners of Darke County, 8 Ohio St. 354, did not present the question whether an appeal would lie or not. It was an original suit brought in the common pleas on a claim that had been presented to, and passed on by the commissioners. The court held that the action would not lie; and this would have been so whether there was an appeal from the action of the commissioners, as said by the court, or not, on the principle of the later case of Commissioners v. Ranney. In any event, the lattercase is not only the later one, but is more in point, and •governs, as we think, the decision of the case under review. For these reasons, we think the court of common pleas erred :in not dismissing the appeal, and the circuit court erred in .affirming its judgment.

The judgments of the common pleas and that of the circuit •court are reversed, and the appeal dismissed.


author: Owen, C. J.

text:
    Rutter v. Henry.

      Animals — Running at large — Sections 4202, 4207 and 4208 construed — Pleadings-
    1. Where, -without the fault of the owner, a horse passes from, such owner’s inelosure over or through a line fence into the inelosure of an adjoining proprietor, and thence through a gap in a fence into the inelosure of another and adjacent proprietor, he is not running at large contrary to the provisions of section 4202 (Rev. Stats.); and no person is authorized to take up and confine him until the owner pay or tender compensation or other charges, as provided by sections 4207 and 4208 (Rev. Stats.)

      % An allegation that such animal was “ unlawfully running at large,” with no further statement of the facts, is not a sufficient averment that it was running at large in violation of the provisions of said section 4202.
    (Decided February 5, 1889.)
    Error to the Circuit Court of Washington County.

      The original action was one in replevin brought by the plaintiff to recover a horse from the defendant. The plaintiff alleged in his petition, in the usual form, his ownership of the horse, his right to the immediate possession of it, and its unlawful detention from him by the defendant. The latter answered, denying the unlawful detention simply, and “ for further answer and cross-petition ’•’ alleged that the horse was unlawfully running at large; that the defendant being the owner of land in the same township, took him up when so found running unlawfully at large, and confined him, and gave notice thereof to plaintiff the same day; that plaintiff refused to pay the statutory charges for taking up, and reasonable compensation for keeping the horse, wherefore he detained him as he lawfully might do. That he was entitled to $1.00 for taking the horse up, and reasonable compensation for keeping him two days, $1.50, for which, with $10.00 damages, he prays judgment. Replying, the plaintiff says “ that the said horse was not at large with his knowledge or by his fault.”
    Upon these issues the action proceeded to trial to a jury. The plaintiff gave evidence tending to show that the horse when taken up by the defendant was not running at large, nor caused to be detained for purposes of grazing in or upon any of the places specified in section 4202, Rev. Stats. That without his fault the horse passed from his inclosure through or over a line fence into an adjoining inclosure, and then through a gap into defendant’s field, where the latter took him up, notified the plaintiff, and demanded the payment of $1.00 “ damages” as a condition of delivering him up to the plaintiff; that the plaintiff made no tender of $1.00 or any other sum, but stated that he was ready to pay what was right; that only nominal damage -was committed by the horse. Thereupon the plaintiff rested his case, when the court, on motion of defendant, arrested the ease from the jury and gave judgment for defendant, upon the ground and for the reason that there was no evidence tending to prove a payment or tender of any sum of money by plaintiff to defendant, as compensation for taking up the horse. This action is assigned for error.

      This judgment was affirmed on error by the circuit court, and it is to reverse these judgments that this proceeding is-prosecuted.
   Owen, C. J.

The case should have been submitted to the-jury. The horse was not, when taken up by the defendant,, running at large in any public road or highway, or in any street, lane or alley, or upon any uninclosed land, or caused to be detained for grazing upon any of the places pointed out in section 4202, Rev. Stats., and hence no person was authorized to detain him until either damages or compensation- should be paid or tendered by the owner. It was wholly without his fault or knowledge that the horse found his way into the defendant’s inclosure. He did not suffer him to run at large in any sense contemplated by the statute, and consequently the case was not brought within either section 4207 or 4208, Rev. Stats.

Nor is it enough to bring the case within the statute that the ' animal taken up was “ running at large.” It must have been so at large in one of the places and conditions defined in the statute. It is assumed by counsel for defendant that the plaintiff admitted, by not denying, that the horse was “ unlawfully running at large,” as it is alleged in the answer. This view magnifies the legal significance of this averment. It means no more than that the horse was running at large— whatever that is. The meaning is not enlarged by the epithet employed. It involves no issuable fact. ’Whether it was unlawfully running at large depends upon the facts, and these are not stated.

' It was incumbent upon the defendant to show, if the plaintiff’s evidence did not, that the horse v7as suffered by the plaintiff to run at large, or caused by him to be detained for grazing upon some place specified in section 4202. This is not accomplished by an undenied averment that the horse was “ unlawfully running at large.” The facts should have been shown so that the court could say whether they brought the ease within the statute. Beyond the fact that the horse was-“at large,” the averment is of the mere conclusion of the pleader. The reply avers that the horse was not at large with plaintiff’s knowledge or by his fault. Besides, it may well be said, that all averments beyond the denial of defendant of the unlawful detention, were surplusage and immaterial. This denial made an issue as broad as the entire case. Every material fact was put in issue by it. Bailey v. Swaine, 45 Ohio St. 657.

The assumption that the plaintiff admitted the case to be within sections 4202, 4207 and 4208, being unfounded, there is nothing in the record that tends even to bring the case within any of these provisions; and as, therefore, no case calling for a tender was made, the trial court erred in arresting the case from the jury and giving judgment for the defendant by reason of the failure of the plaintiff to prove such tender, and for this error the

Judgments below are reversed and the cause remanded for further proceedings.