text:
    The Union Central Life Insurance Company et al. v. Emigh.

      Vendor’s lien — Cannot be asserted against mortgagee — Or his privies, when.

    A vendor’s lien which arises out of a failure to pay part of a mortgage debt, which the vendor himself by stipulations in a prior deed had agreed to pay, cannot be asserted against the mortgagee or his privies in estate.
    (No. 11464
    Decided June 7, 1910.)
    Error to the Circuit Court of Paulding county.
    One Eli Need, being the owner in fee simple of certain real estate in Paulding county, executed and delivered to the plaintiff in error, The Union Central Life Insurance Company, his wife joining with him, a mortgage for the sum of three thousand dollars. Afterwards, Eli Need and Margaret, his wife, conveyed the lands to Frank Need, and the latter conveyed the same to Margaret Need. On the first of January, 1892, Margaret, her husband Eli joining with her, sold and conveyed said premises to the defendant in error, Emigh, for the sum of thirty-two hundred dollars, and as part of the consideration the grantee assumed and agreed to pay to The Union Central Life Insurance Company the sum of twenty-five hundred dollars to apply on the said mortgage given by Eli Need and wife to the said insurance company. Thereafter, Emigh sold and conveyed the said premises to one Dunfee by a deed of general warranty covenanting against all encumbrances except this mortgage of the insurance company which had theretofore been reduced to twenty-five hundred dollars. This deed contained no stipulation as to any assumption of this mortgage indebtedness by Dunfee. Subsequently the insur- . anee company commenced an action against Dunfee, Eli Need and others, t© foreclose this mortgage, but Emigh was. not made a party to said action. The petition for foreclosure contained an averment that, in consideration of the extension b> the company of the time of payment of said mortgage, the said Dunfee had agreed with the company to pay the same. Judgment was 'rendered against Need and Dunfee, the mortgage was foreclosed, and the lands were purchased at the foreclosure sale by the company. The proceeds of the sale being insufficient to pay the judgment in full, Need paid the balance to the company, and afterwards in an action against Emigh 'recovered the same upon the promise of the latter 'as contained in his deed to pay this mortgage in•debtedness. Prior to the recovery against Emigh, on October 13, 1897, the insurance company sold said premises by written contract to the plaintiff in error, Cline, for. the consideration of thirty-two hundred dollars and covenanted to convey the same by deed upon payment of the balance of the purchase price; and, the same having been paid, on September 22, 1905, the company conveyed the premises to Cline by deed of general warranty. On the execution of the contract Cline entered into possession of the premises and made valuable improvements thereon. The defendant in error claimed that there was a verbal agreement between himself and Dunfee bv winch Dunfee as a part of the consideration for the purchase of the premises promised to pay the insurance company’s mortgage of twenty-five hundred dollars, and that the insurance company had notice of that agreement. This action was begun by the defendant in error against the plaintiff in error for the purpose of obtaining a decree establishing and foreclosing a vendor’s lien upon the premises mentioned. The court of common pleas sustained general demurrers to the petition and amended petition, and on error the circuit court reversed the lower court and remanded the cause. Thereupon in the court of common pleas • issues were joined and upon the hearing a decree was rendered in favor of the defendant in error establishing a vendor’s lien a,nd ordering the same foreclosed. On appeal to the circuit court a similar finding, judgment and decree were rendered which the plaintiffs in error now seek to have reversed.

      Messrs. Snook & Wilcox and Mr. W. H. Phipps, for plaintiffs in error.

      Messrs. Waters & Spriggs, for defendant in error.
   Davis, J.

We do not think it is at all necessary to follow the intricacies of the law of vendor and purchaser in this case, for it appears to us quite clear that the defendant in error has no enforceable lien as against the plaintiffs in error.

Assuming that Dunfee agreed with ■ the defendant in error to pay twenty-five hundred dollars on the mortgage held by The Union Central Life Insurance Comnanv. which by the way is controverted the defendant in error can assert no lien against the mortgagee or those holding under it; for as between the mortgagee and Need.and the defendant in error Emigh, the latter became the principal and Need the surety for the payment of twenty-five hundred dollars on the mortgage, by virtue of Emigh’s assumption of that amount as part of the consideration for his deed. Poe v. Dixon, 60 Ohio St., 124. It was upon this theory that judgment was rendered against Need, which he paid and then recovered from Emigh. If the defendant in error had an agreement with his vendee, Dunfee, to pay twenty-five hundred dollars on the mortgage, and the latter failed to perform, undoubtedly the defendant in error would have a right of action against Dunfee; but such an agreement could not change the relations between the defendant in error and the mortgagee, The Union Central Life Insurance Company. He still remained liable for the debt, unless it were paid by his vendee, Dunfee. It was not so paid except by sale of the land under the mortgage; and therefore if the defendant in error were allowed to enforce a vendor’s lien as against Dunfee in this action, it would bring about a circuity of actions which is not tolerated in equity.

The plaintiff in error, Cline, holds under the mortgagee, The Union Central Life Insurance Company, and besides, from the conceded facts appears to have been an innocent purchaser.

The judgment of the circuit court is reversed, and we render final

Judgment for plaintiffs in error.

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


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    Van Ingen v. Berger.

      Order of Cincinnati superior court — Suspending execution' in a default judgment — Until trial of the case on its merits — Is Anal order, when — Section 6707, Revised Statutes — Rule of court cannot render nugatory a valid statute — A default judgment cannot he suspended — On motion for alleged irregularity, when — Effect of failure of clerk to note judgment — Court procedure.

    1. An order by the superior court of Cincinnati, that a default judgment rendered by the same court at a previous term be suspended and execution thereon stayed until the case should be tried on its merits, and granting leave to defendant to file answer, is an order affecting a substantial right in a summary application after judgment, and is a final order within the meaning of section 6707, Revised Statutes, from which error may be prosecuted. (Hettrick v. Wilson, 12 Ohio St, 136; Braden v. Hoffman, 46 Ohio St., 639.)
    2. A valid statute of the state cannot be rendered nugatory or materially modified by a rule by one of the courts of the state, and if a rule sought to be enforced by any of the courts is found to be in conflict with such statute, the rule will be disregarded.
    3. A judgment by default, rendered by the superior court of Cincinnati, upon default, in every way regular on its face, cannot be suspended nor execution thereon stayed by that court on a motion filed at a subsequent term for an alleged irregularity in obtaining such judgment where such irregularity consists solely in the failure of the'clerk to note such judgment on' his appearance docket, and of the plaintiff to give notice thereof in the Court Index, a newspaper,' for three successive days, notwithstanding both such acts purport to be required by a rule of that court.
    (No. 12166
    Decided June 7, 1910.)
    Error to the Circuit Court of Hamilton county.
    On November 14, 1908, the plaintiff in error, Edward H. Van Ingen, commenced an action in the superior court of' Cincinnati to recover upon an account for goods sold and delivered. Summons was thereupon duly served on the defendant. The petition was faulty in that it failed to set forth a .copy of the account and make it -a part of the petition. To correct this omission an amended petition was filed November 28, 1908, of which due notice was thereupon given. Thereafter, on December 28, 1908, the court entered the following judgment:
    “This cause coming on to be heard upon the amended petition and the evidence, the court finds that the defendant, Lizzie Berger, has been duly served with summons, and is in default, and that the allegations of the petition are confessed by her to be true, and are true, and that she is indebted to the plaintiff in the sum of one thousand seven hundred and seventy-three and 24-100 ($1,773.24) dollars with interest thereon from April 28, 1908.
    ‘Wherefore it is ordered and considered that the plaintiff, Edward H. Van Ingen, recover of the defendant, Lizzie Berger, the sum of $1,837.96, and the plaintiff’s costs herein.”
    At the subsequent term of the court, to-wit, January 9, 1909, the defendant filed a motion to set aside the judgment for irregularity in obtaining it, for improper conduct in procuring it, and because defendant has a valid defense, and that the delay in filing proper pleadings was caused by plaintiff. On February 20, 1909, an amended motion was filed, setting out the grounds of irregularity as follows:
    “Said defendant was not in default until after December 26, 1908, and three days had not elapsed as required by the rules of the said court, nor had notice of said default been published for three days in the Court Index as required by the rules of said court, and a notice had appeared in the Court Index, the court organ of said court, on December 23d, 24th, 25th, 26th, 27th, 28th, 29th and 30th that no defaults would be taken after December 22, 1908, and no summons had been issued upon the amended petition filed herein.” Also, repeating that defendant has a valid defense.
    These motions were heard March 8, 1909, on evidence, and the court, finding that there was an irregularity in obtaining the judgment by default, and that the answer tendered by defendant showed a valid defense, ordered and adjudged that the judgment of December 28, 1908, be suspended and execution thereon stayed until the case should be tried on its merits, and with leave to defendant to file an answer, which was done. It is shown by the court’s special findings of facts that the irregularity consisted in the fact that the clerk did not note the default upon the amended petition upon his appearance docket, nor was notice of the default given in the Court Index, as is required by Rule 16 of the rules of the court. Also that the following was published in the Court Index from December 23, 1908, to December 30, 1908: “Notice — -Defaults. There will be no more defaults granted this term.” But the notic-e was not caused to be published by the superior court. Rule 16 is shown by the bill of exceptions as follows :
    “If a party neglect to file the proper pleading within the time ■ provided by statute or expiration of leave granted to amend, where no amendment has been filed, he shall be held to be in default. The clerk shall note the fact of such default on his appearance docket, and notice thereof be given in the Index for three successive days; after which the cause may be proceeded in to judgment. The default may be set aside on such terms as the court may impose, and the court may either order the proper pleading filed forthwith or may give further time. If a judgment has been entered upon the default, it shall not be set aside unless, at the same term of court, the party against whom the judgment was rendered present and offer to file the proper pleading in the case, together with an affidavit of the party or the professional statement of his attorney reduced to writing, setting forth that there is a meritorious cause of action or defense, and the facts showing the cause of delay in pleading; in which case the court may set aside the default upon such terms as to costs as to the court may seem just, and- shall order the pleading, for want of which such default existed, to be filed forthwith. No default judgments will be entered during the vacation months, or at ány time except during regular sittings of the court in term.”
    The court’s order suspending the judgment was based wholly on the alleged irregularity above stated.
    Upon error by the plaintiff to the circuit court, the judgment of the superior court suspending the judgment of December 28, 1908, was affirmed. To reverse these judgments is the purpose of this proceeding.

      Mr. Charles B. Wilby and Mr. Mitchell Wilby, for plaintiff in error.

      Messrs. Hoffman, Bode & Le Blond, for defendant in error.
   Spear, J.

It is suggested by counsel for defendant in error as a preliminary question, although not strenuously urged, that the entry of the superior court complained of is not a final order such as could .be the predicate of a proceeding in error. The circuit court evidently thought otherwise. Had that court agreed with this claim of counsel its judgment would have been a dismissal of the petition in error instead of an affirmance. In this conclusion we are in accord with the circuit court. The order does affect a substantial right in a summary application after judgment, and in that sense is a final order. (Section 6707, Revised Statutes.) But for such order the plaintiff would have been entitled in law to the immediate fruits of his judgment. Of this right the order deprived him. Hettrick v. Wilson, 12 Ohio St., 136; Braden v. Hoffman, 46 Ohio St., 639.

As' to the court’s control over its journal, and the judgments and orders thereon, the general rule is well settled. It is that during the term the discretionary power to vacate or set aside its judgments is ample,' but that discretionary power ends with the term, and the power to set aside a judgment on a motion made after the term is governed by settled principles, to which the action of the court must conform. Huntington & McIntyre v. Finch & Co., 3 Ohio St., 445. This rule of court is not disputed, nor is it disputed that' courts have power to make rules of practice which are consistent with the law. The real question in the case, therefore, relates to the effect of the failure by plaintiff and the clerk to comply with the court’s rule known as Rule 16. This question, reduced to its last analysis, is whether or not the existence of Rule 16 and the failure of the clerk and the plaintiff to observe its requirements, deprived the trial court of power to render the judgment of December 28, 190.8? In other words, does the statute respecting the entry of judgment by default prevail; or, where the two provisions are inconsistent, does the rule prevail ?• The text of the rule is given in the statement which precedes. The statute, section 5133, Revised Statutes, is as follows: “In an action upon an account or written instrument for the payment of money only, or in foreclosure, judgment may be entered at any time during the term after the defendant is in default for an answer; but the court may, for good cause shown, give further time for answer.” It would seem not to require argument to show that the statute and the rights of parties under it cannot be abridged by a rule of court, and if a rule is framed so as to defeat or materially restrict the clear purpose of the statute, such rule cannot be held valid. It is insisted by counsel for defendant in error that the word “may” in the above section, and the last .clause respecting the giving of time to answer, indicate that the rendition of judgment or its refusal is discretionary, and that the rule requiring three days’ notice of default in the Co%irt Index is not an abuse of discretion. This proposition, so far as it relates to discretionary power, or at least to the extent that the action of the court involves the exercise of some discretion, may be conceded, for it is held in Dallas v. Ferneau, 25 Ohio St., 635, that where judgment is rendered on default, in an action on an account, without proof of the plaintiff’s claim, there is no error for which the judgment will be reversed, the requiring of such proof, on failure to answer, being a matter within the discretion of the court. But this does not seem to advance the argument of counsel in this case. If the court possessed discretion to allow or refuse judgment on default, and might have required proof of notice in the Court Index before allowing it, it then exercised its discretion in favor of the plaintiff; it rendered the judgment. If the court had required compliance with Rule 1<5 before rendering the judgment, and the plaintiff were complaining of that, we would then have the question which counsel argue. The findings of the trial court and entry of judgment are -explicit. They apparently show the right of the plaintiff to a judgment by default precisely as it was rendered. If it was the absolute duty of the court, irrespective of any rule of court, upon plaintiff’s demand for a judgment, to render such judgment, then of course the rule could have no effect upon the situation, while if the court had discretion to refuse plaintiff’s demand, or comply with it, it could not be deprived of that discretion by a rule of court unless the rule is in law superior to the statute. We think it is not. To hold that it .is superior would be to hold that a court is superior to the law, and by a rule can make a special rule of law for the city of Cincinnati, upon a subject of a general nature, different from the law prevailing in other sections of the state, a power which has been denied to the general assembly itself.

The rule is attacked as being invalid. We are not called upon to discuss this question, as it is not presented by the record. Whether or not, as a guide to the exercise of proper discretion in entering judgments by default, the rule is or not a reasonable one maj'- be properly left for decision until a case arises presenting the question.

The publication in the Court Index of notice that no more defaults would be granted during term is of no signification whatever upon an)r view of the case. The notice had not been directed by the superior court and could not apply to the business of that court. Nor could the failure of the clerk to note the default upon the appearance docket deprive the plaintiff of a right given by statute, the plaintiff being in no wise responsible for such omission.

We are of opinion that the record fails to show any irregularity in the rendition of the default judgment such as is contemplated by section 5354, Revised Statutes, which gives to the court after term authority to vacate or modify its judgments, and that the judgment of the superior court of March 8, 1909, suspending the judgment of the preceding term, was and is erroneous, as also is that of the circuit court affirming the judgment below. Both judgments will be reversed and final judgment rendered for plaintiff in error.

Reversed.

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


author: Crew, J.

text:
    WALCUTT V. TREISCH ET AL.

      Deed for timber land — Grantor to remove timber in certain time — • Timber cut bttt not removed — Absence of forfeiture clause in deed — Grantor retains right in timber — Grantee’s redress in damages for trespass.

    Where in a deed of conveyance of lands the timber thereon is excepted and reserved by the grantors, with the privilege of removing the same within a stipulated time, and within the time limited a portion of said timber is by them cut and severed from the realty, but is not removed from the premises until after the limitation period has expired.

      Held: 1. That, in the absence of a forfeiture clause in the deed, grantors’ right to the timber so severed from the realty was no't lost nor their title thereto forfeited to the landowner, because of their failure to remove the same within the time stipulated in the deed.
    2. That under such circumstances the landowner cannot recover from the grantors the value of the timber cut and removed by them, but the extent of his remedy is the damages he may have sustained by reason of the grantors’ trespass upon and occupation of his land.
    (No. 11902
    Decided June 7, 1910.)
    Error to the Circuit Court of Richland county-.
    In February, 1905, the defendant in error sold, and by deed of general warranty conveyed to the plaintiff in error, James J. Walcutt, a farm of about two hundred acres in Richland county, Ohio. Said deed contained the following exception and reservation: “Saving and excepting that all timber now on west side of this farm (about sixty acres) is hereby reserved by the said grantors, together with the privilege of going on to said farm and removing same any time within two years and six months from February 15, 1905. Grantors further reserve the right or privilege of setting up and operating a mill for the purpose' of manufacturing the timber last. above mentioned.” Prior to August 15, 1907, and within the two years and six months stipulated in said deed as the time within which said timber should be cut and removed, grantors entered upon said premises and cut and felled a large number of trees, many of which they sawed and converted into lumber, but none of which they removed from said premises prior to said fifteenth day of August, 1907. On August 16, 1907, James J. Walcutt, grantee and owner of said premises, commenced an action in the court of common pleas of Rich-land county against said grantors, defendants in error herein, asking that they be enjoined, “from thereafter going upon said premises, from cutting the standing timber remaining thereon, and from removing lumber or logs of any description from said premises.” Upon the filing of the petition a temporary injunction was allowed by the court as prayed for in said petition. Thereafter a motion was made by defendants to dissolve said temporary iniunction. and the court upon hearing said motion modified the injunction theretofore granted and dissolved the same in so far as it restrained the defendants from removing from said premises the timber already cut and the lumber sawed therefrom, but refused to dissolve, and continued said injunction as to the timber still standing uncut on said sixty acres. Subsequently, under an agreement made and entered into between plaintiff and defendants and entered upon the journal of the court, the defendants took possession of and removed from the premises of plaintiff all of said lumber and all of the trees that had been severed from the realty. Thereafter, to-wit, on October 22, 1907, the'plaintiff, James J. Walcutt, by leave of the -court, filed in said cause what he denominated an amended and supplemental petition, containing two causes of action; in his first cause of action he alleged and claimed ownership of and title to the property taken and removed by defendants, because the same was not taken and removed by them within the time designated and prescribed in said deed of conveyance for cutting and removing the same, and he prayed judgment against defendants for the value of the property taken. In his second cause of action, after making the necessary and appropriate averments to that end, he asked that the temporary injunction theretofore allowed by the court, restraining defendant’s from cutting down the standing timber remaining on said premises, might be continued and made perpetual. To each of these alleged causes of action the defendants interposed a general demurrer. The court of common pleas sustained the demurrer to said first cause of action and overruled the demurrer addressed to said second cause of action. Thereupon neither of the parties desiring to further plead final judgment was entered upon the pleadings. Both plaintiff and defendants prosecuted error to the circuit court, where the judgment of the court of common pleas was affirmed. From this judgment of affirmance by the circuit court James J. Walcutt alone prosecutes error in this court, no cross-petition in error having been filed herein bjr the defendants in error.

      Mr. J. A. Godown, for plaintiff in error.
    The grantors in the deed of conveyance retained to themselves out of their grant an interest, so to speak, in the property that they conveyed away. This interest the law characterizes as “a reservation.” Blackman v. Striker, 142 N. Y., 555, 37 N. E. Rep., 485; Youngerman v. Supervisors, 110 Ia., 731; 81 N. W. Rep., 167; Elliott v. Small, 35 Minn., 396, 29 N. W. Rep., 159.
    The reservation was, in effect, the retaining of an interest by grantors in derogation of their grant. The time was voluntarily fixed by the grantors, and it would seem that the law ought to compel them to stand by it. The grantors themselves fixed a long period of time to get their timber off, and then allowed this time to expire, and now seek to find relief through the channels of the courts, whereby the. contract is materially changed against the will of the grantee, as far as the grantee is concerned, deliberately destroying this part of the contract. Meredith v. Frank et al., 56 Ohio St., 488.
    If the plaintiff had a property right in this timber, we maintain that he had several remedies at his option, to pursue defendants for their violation. He might have brought an action for conversion; he might have brought a replevin suit, or, if the time to go on the farm had expired, any acts hy the defendants in going on the farm thereafter were acts of trespass. . Now, if all or atiy of the above, propositions are correct, we submit that plaintiff had a lawful right to enter into contractual relations with the defendants relative thereto. 'Clark v. Guest, 54 Ohio St., 298; Ripy v. Less, 118 S. W. Rep., 1084.
    It is difficult for us to conceive of a clearer enunciation of the principles of law applicable to the case at bar than in the language used by Judge Burket in Clark v. Guest, supra. Pease v. Gibson, 6 Greenl., 81; Saltonstall v. Little, 90 Pa. St., 422;. Monroe v. Bowen, 26 Mich. 523.
    We regard the law as expressed in the case of Clark v. Guest, supra, as a rule of property in this state, and entitles plaintiff to an application of the maxim stare decisis and is no longer an open question for the courts of this state. Menge v. Madrid, 40 Fed. Rep., 679.
    We think the law of Ohio, as applied to the case at bar, is that the defendants, under the reservation of the deed, had full title to the trees for a period of two years and a half from February 15, 1905, and the title to the trees was defeasible by a failure to go and remove them within said period of time, and the mere cutting of the timber before the time, but not removing it from the premises, is not a compliance with the contract of reservation so as to entitle the defendants thereto. Brown v. Fowler, 65 Ohio St., 507.

      Messrs. Cummings, McBride & Wolfe and Mr. J. W. McCarron, for defendants in error.
    The cases are nearly uniform that timber “cut” belongs to the purchaser, and that a “cutting” is a removal. 25 Cyc., 1552, 1553; Brewster on Conveyancing, Section 124; Halstead v. Jessup, 150 Ind., 85; Alexander v. Bauer, 94 Minn., 174.
    Practically the same doctrine is held in: Erskine v. Savage, 96 Me., 57; Hodges v. Buell, 134 Mich., 162; Macomber v. Railroad Co., 108 Mich., 491; Hicks v. Smith, 77 Wis., 146; M'Gregor v. M'Neil, 32 U. C. C. P., 538.
    The deed under which this reservation of the timber was made by Treisch contains no forfeiture clause, nor is there anything in the language of the deed indicating any intention of the parties that upon failure to remove the timber in the time stipulated the title to the same is to pass to the grantee. Carpenter v. Denoon, 29 Ohio St., 379; Koltenbrock v. Cracraft, 36 Ohio St., 584; Insurance Co. v. Pottker, 33 Ohio St., 459; Hulett v. Fairbanks, 40 Ohio St., 233.
    The above and many other authorities might be cited to show that forfeitures are looked upon with great disfavor and are construed very strictly against the party asking for same, and we believe a search of the authorities of Ohio will disclose but very few instances in which the court has gone to the extent of providing for forfeitures where the contract did not call for the same. 2 Page on Contracts, Section 1160; Thacker, etc., Co. v. Mallory, 27 Wash., 670; Irons v. Webb, 41 N. J. L., 203, 32 Am. Rep., 193; Hoit v. Stratton Mills, 54 N. H., 109, 20 Am. Rep., 119; Heflin v. Bingham, 28 Am. Rep., 706.
   Crew, J.

The case presented by the record now before us is obviously controlled and must be determined by the construction proper to be placed upon the reservation clause found in the deed executed by defendants in error as grantors, to the plaintiff in error, James J. Walcutt, as grantee, in February, 1905. Said deed was a deed of warranty and convej^ed to said James J. Walcutt about two hundred acres of land situate in the townships of Monroe and Washington in Richland county,. Ohio, subject, however, to the following exception and reservation, to-wit: “Saving and excepting that all timber now on west side of this farm — about sixty acres — is hereby reserved by the said grantors, together with the privilege of going on to said farm and removing same any time within two years and six months from February 15, 1905.” The question here presented is: Did the grantors by this language exclude from the operation of said grant, and thus reserve to themselves the absolute ownership and title to the timber growing upon said sixty acres at the time of the execution of said conveyance ; or did they thereby reserve and secure to themselves only the right to cut and remove so much of the timber growing thereon as they might cut and remove within two years and six months from February 1-5, 1905? It is the contention of plaintiff in error that the latter construction is the one proper to be eriven the clause of the deed above cited, and therefore it is claimed, that defendants not having cut and removed all the timber within the time stipulated for its' removal, the reservation or exception contained in the deed lapsed, and the title to all of said timber then remaining on the premises — as well that theretofore severed from the realty as that left standing— passed to the owner of the land, and that the latter had the right to hold and retain the same as his own, or it having been converted had the right to sue for and recover its value. Such claim we think is contrary to the clear weight of authority, and is not a correct statement of the law governing in such cases. In Plumer v. Prescott, 43 N. H., 277, which was an action for trespass, the contract was for the sale of all wood and timber on certain land belonging to plaintiff, the same to be cut and removed within a designated time. The wood and timber was all cut before the time named, and all the timber and part of the wood hauled off the premises. The balance was removed by defendant after the time limited for its removal. The court in that case said: “The question is, whether in an action of trespass for breaking and entering this tract of land after October 1, the plaintiff is entitled to include in his damages the value of the wood thus hauled off. Assuming that the sale was limited to such trees as were cut during the time specified (as would seem to be the doctrine of Pease v. Gibson, 6 Greenl., 81; recognized in Putney v. Day, 6 N. H., 430; and also of Kemble v. Dresser, 1 Met., 271; and Reed v. Merrfield, 10 Met., 155) still it does not follow that the vendee acquires no property in such trees as he had cut before the expiration of the time limited, although he permitted them to remain until after. Until cut they may be regarded as part of the soil in which they are rooted; and so it is decided in Green v. Armstrong, 1 Denio, 550; and Olmstead v. Niles, 7 N. H., 522; and it might well be held, that no interest remained to the vendee in the land, or in the trees which are parcel of it, after the time limited in the contract. Otherwise, we should be driven to hold that the interest of the vendee in the land was not governed by the contract, but was extended beyond it indefinitely, by an assumption that a property in the trees as chattels, and not as parcel of the soil, was vested in the vendee, and at the same time giving him the use of the land for their support. When, however, these trees are lawfully cut by the vendee, within the time limited by the contract, they cease to be parcel of the land and become the personal property of the vendee; and unless it can be considered that he has waived oi; forfeited his title to the timber by neglecting to remove it within the time, it must stand for aught we can see upon the footing of other personal property of the vendee’, which, by his fault or neglect, and without any fault of the vendor, is upon the land of the latter. It is very clear, we think, that having been lawfully severed from the land, it has become personal property, and at any period before the expiration of the limited time, at least, the title is vested in the vendee as fully as any other chattels. If this be the case, it is difficult to see how the title can be lost by the neglect to remove it.” For the reasons stated the court held that plaintiff was not entitled to judgment for the value of the wood taken. The same rule was applied in Irons v. Webb, 41 N. J. L., 203, where the reservation in the deed was in these words: “Excepting and reserving the timber on the said land being conveyed, for the removal of which the said party of the second part agrees to and with the said party of the first part that he, the said party of the second part, that he will give two years from the date hereof to the said party of the first part.” In the opinion in this case Beasley, Chief Justice, says: “The plaintiff founds his action in this case on the proposition that the timber in controversy was conveyed to him in an absolute form and clear of all conditions, and that the subsequent-clause in the deed, restricting to the period of two years his right to enter upon the premises to remove such timber, had no effect on his title, either to limit or otherwise condition it. In opposition to this, the contention of the defendant is that the plaintiff, by the right construction of the conveyance, became entitled only to such of the timber as was removed by him from the premises within the period designated. My examination of this subject has led me to the conclusion that the construction of this conveyance claimed in behalf of the plaintiff is correct. * * * In the present case, if the contention of the defendant is right, then this timber continued to be the property of the plaintiff up to the running out of the two years, and then, by its non-removal it became forfeited and passed to the defendant; and it is entirely obvious- that such a condition is not favored in law, and that it will not be raised up by implication, unless by the force of demonstrative indication. Looking at the terms of the present agreement and its subject matter, I can see no mark, certainly no decisive mark, signifying that it was the intention of these parties that by the plaintiff's neglect to remove the timber it should be forfeited to the defendant. Such a purpose, it is certain, is not contained in any part of the language of the instrument; for it nowhere says that, in any event, the title to the timber is to pass to the grantee. As a consequence, as it is not in the words, such a right must be derived by inference from the nature of the transaction itself. ’ But, then, what feature of the business is to have such an effect? The only particular relied on is the circumstance that if the timber was permitted to remain on the premises until the time of- removal had expired, it became unlawful to enter for the purpose of taking- it away. But the effect of such an incident is not in law to work a forfeiture of title. Such a position of property is not uncommon. Chattels are frequently placed, or left, by their owner, on the land of another without his permission, but it will scarcely be pretended that, by so doing, the title to such chattels becomes vested in the proprietor of the land. In such case, the landowner has an adequate remedy for the wrong suffered by him: he is entitled to be indemnified for all the loss he may have sustained by having had his land illegally burthened by chattels placed there without right, and in consequence of the entry to remove them; and m this way, instead of by the exorbitant method of a forfeiture of such chattels, the law anolies to tue case its ordinary measure of damages, and thus gives compensation.” In Erskine v. Savage, 96 Me., 57, the deed contained the following reservation : “Reserving all hard and soft wood growth thereon, with right of entry upon the premises at any and all times for a period of five years from the date hereof with men and teams for the purpose of cutting and removing the same.” The grantor afterwards sold to the plaintiff by “bill of sale” all rights reserved to himself by the foregoing reservation. Within the five years the plaintiff cut all the wood reserved, but some of it had hot been removed before the expiration of that period. Thereupon the defendant forbade the removal of the remaining wood, and for this alleged conversion trover was brought. Held: “That the wood remained part of the real estate until severed from the soil; that as soon as it was severed, within the period limited,' it became personal property, that the title then vested in the plaintiff, and that plaintiff did not lose his title to the. wood cut, but not removed, by failure to remove it within the five-year period.” In the comparatively recent case of Alexander v. Bauer, 94 Minn., 174, under a contract whereby defendant was to have until a certain time to cut and remove several thousand feet of logs from the plaintiff’s land, a portion of which was cut before the limitation provided for in the contract expired, but was not removed until six months after-wards, it was held: “That upon the failure to remove the logs before the time limited, the title thereof did not revert to and become reinvested in.the owner of the land.” The court in the opinion says: “Conceding, as necessary, that the case calls for a construction of the terms of the agreement, which provides that the defendant had a right to 'cut and remove’ until June 1, 1902, we are not able' to adopt the view that this embraced a provision for forfeiture of defendant’s acquired rights, whereby the title to the property was to depend absolutely -upon' the actual removal of the severed logs before that time. Tt cannot be doubted that the defendant’s right to cut the logs was clear, and that he could avail himself of that privilege previous to the expiration of such limitation ; but it does not conclusively follow that the character of the property was changed from personal chattels, the defendant’s dominion over which, for the time at least, was plain and absolute, to an interest in real estate, nor that by the failure to remove it was to revert to and revest in the plaintiff. If this followed, the defendant would lose the benefit of his entire .labor, as well as the right to that which for a period of time had remained in him, with all the benefits and incidents which attach to personal property. It is true that there are decisions which, upon examination, will justify such conclusion — as, notably, the case of Boisaubin v. Reed, 2 Keyes, 323, and some other cases of similar import. We are not satisfied with the principles upon which these cases rest. It seems much more equitable and just, as well as consonant with the rights of the parties and the analogies of the law, to hold that as to standing timber, which is a part of the freehold, when cut under the authority' of the owner and converted into chattel property, the ownership of which becomes vested in the person cutting the same, while the right to remove is limited to a certain time, there is no implied condition that such title shall revert if the independent duty to remove it is not strictly performed. Or in other words, that, by failure to perform the agreed duty to remove, the owner’s rights would become absolutely and irrevocably forfeited. That there might be an action for trespass against the defendant upon the freehold, if the person cutting the logs should enter thereon after the limitation, may be true, or that damages for occupation of the land would follow from a removal after this time might also be true; but we are not prepared to approve any decision which holds that there is an implied Condition upon which the right to the title to property, once vested, can be changed by the failure or breach thereof, and retransfer the title to the entire property.” The rule and doctrine announced by the authorities above cited was also applied in Halstead v. Jessup, 150 Ind., 85; Hicks v. Smith, 77 Wis., 146; Goodwin v. Hubbard, 47 Me., 595; Hoit v. Stratton Mills, 54 N. H., 109.

The authority and reasoning exhibited in the foregoing cases would appear to be, and we think is, decisive of the case at bar, as obviously, defendants in the present case cannot be held liable to plaintiff for the value of the timber removed by them after February 15, 1907, if at the time of its removal it was-their property. The case of Clark v. Guest, 54 Ohio St., 298, relied upon by counsel for plaintiff in error, is clearly distinguishable from the case now under consideration, in that, there was involved in Clark v. Guest no question whatever as to the ownership of timber that had been severed from the land; and it sufficiently appears from the syllabus in the case that the word “timber” as used by Furket, J., in the opinion in that case, had reference to growing timber; timber, which in the language of the syllabus, “adhered in the land,” and was a part of the realty. In the present controversy there is now in dispute only so much of the timber reserved by the grantors— defendants in error — as had by them been severed from the realty prior to February 15, 1907, no claim being here made by them to any portion of the timber then left standing and uncut. It follows therefore that the timber in controversy having' all been lawfully cut by defendants in error within the time limited and reserved in their deed, the same ceased to be parcel of the real estate and became their personal property, and in consequence, there being no clause of forfeiture in the deed, they cannot be held liable to plaintiff for the value of the property taken, although the same was not removed until after the limitation period' named in the deed had expired. The view we have taken in this case makes it unnecessary for us to notice or consider the effect of the arrangement and agreement entered into between the parties, while this cause was pending in the court of common pleas, touching the removal of this property by the defendants.

Judgment affirmed.

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


author: Summers, C. J.

text:
    The Baltimore & Ohio Southwestern Railway Company v. Good et al.

      Sale of chattels for cash on delivery — Chattels in custody of bailee— Vendor without requiring payment — Gives vendee order on bailee — Vendee transfers to innocent purchaser — Original vendor cannot replevin from. ■ sub-vendee — Lazo of sales — Title of chattels.

    1. In sales of specific chattels for cash on delivery, delivery and payment are concurrent acts, and delivery in the expectation of receiving immediate payment is not absolute but conditional, and, when there is no waiver of payment, the property does not pass until the price is paid.
    2. In a sale for cash on delivery, when the goods are in the custody of a bailee and the vendor, without requiring payment, gives to the vendee a delivery order directing the bailee to deliver the goods to the vendee, or to his order, intending to transfer both the. property and possession, and the bailee pursuant to the order delivers the goods to a bona Me purchaser from the vendee, the delivery is as to the innocent purchaser absolute and not conditional, and the title of such sub-vendee is good against the seller, although the sale between the vendor and vendee was fraudulent.
    3. G. sold a car of oats to 13., terms cash on delivery, the weight to be ascertained and certified by the official weigher of the Cincinnati Chamber of Commerce, of which both were members. G. at the time of sale gave B. a delivery order on the carrier, in whose custody the car was, to deliver the car to B. or to B. or order. B. sold the oats to M. and transferred to him the delivery order. M. sold the oats to G. B., who surrendered the order to the carrier and ordered the car turned over to another carrier, which was done. M. on account of the sale to him paid B. $400, and G. B. paid M. $250. B. was insolvent and G. replevied the car in the possession of the carrier who had received it for G. B. Held: That G. was not entitled to recover the car.
    (No. 11370
    Decided June 7, 1910.)
    .Error to the Circuit Court of Hamilton county.

      In September, 1905, a car of oats was shipped to Good & Company at Cincinnati with a sight cffiaft attached to the bill of lading. Upon arrival of the car in Cincinnati on the C. H. & D. railroad, the consignee paid the draft and surrendered the bill of lading to the railroad company. The official grain inspector for the Cincinnati Chamber of Commerce graded the car and delivered a sample of the oats to the consignee, who, on the same day, sold the oats on “change” to A., Bender at 30 cents per bushel, and gave him the following written delivery order:
    “To the Cincinnati, Hamilton & Dayton Railroad Company:
    “Please deliver to the order of A. Bender or A. Bender Car 1427 oats consigned to us.
    “Goon & Company.”
    On the same day Bender sold the car of oats to Maguire & Company at 29j4 cents and turned the delivery order over to them and received their check for four hundred dollars, and something over — the exact amount is not given. The following day Maguire & Company sold the oats to Gale Brothers at 30 cents and gave them the delivery order arid received their check on account for $250.00. Gale Brothers surrendered the delivery order to the C. H. & D. Railroad Company and ordered the car turned over to the plaintiff in error, the B. & O. Southwestern Railway Company, to be placed at their elevator, and the C. H. & D. Railroad Company accepted the delivery order and placed the car in the yards of the B. & O. Southwestern Railway Company.
    At the time of the sale Bender was insolvent, and, for the purposes of this case, it is assumed that the purchase by him was fraudulent.
    After the car had been turned over to the B. & O. Southwestern Railway Company, and before it had been placed by that company at the elevator of Gale Brothers, Good & Company, replevied the car from the railroad company.
    The jury found against Good & Company, and on error in the circuit court, that court reversed the judgment, and upon the undisputed facts entered judgment for Good & Company.

      Mr. L. W. Goss and Mr. H. D. Peck, for plaintiff in error.
    In this case, Good sold this car of oats to Bender, trusting him for-payment. If Bender did not pay him he could retake the car so long as it remained in Bender’s possession. But when it had passed into the hands of bona fide purchasers, innocent of any collusion, the case is entirely different.
    If Good failed to so protect himself under the rules, can he now call on a bona fide, innocent purchaser to recoup his loss?
    Does it not come within the principle laid down by this court in Combes v. Chandler, 33 Ohio St., 178, and Eaton & Co. v. Davidson, 46 Ohio St., 362?

      Messrs. Kelley & Hauck, for defendants in error.

      This order' was neither a muniment of title, an assignment or transfer of title or possession of the carload of oats, in the actual possession of the railway company, and did not clothe Bender with an insignia of ownership or apparent ownership of the carload of oats.
    The transaction between Good and Bender, if anything, was an executory contract of sale, and we contend not even a conditional sale, because there was no delivery of either title or possession either actual or constructive.
    The delivery order was a mere request to the C. H. & D. railway to deliver the car of oats, nothing more. Hoskins v. State, 11 Ga., 92.
    A delivery order, merely, transfers no title to the goods mentioned in it. Anderson v. Read, 106 N. Y., 348; M’Ewan v. Smith, 2 H. L., 309; Benjamin on Sales (6 ed.), Section 776; Railroad Co. v. Bank, 54 Ohio St., 72.
    Until the car was placed at Gale Brothers’ elevator and acceptance by them there, was no change of possession as amounted to actual receipt, and possession was still in Good & Co., the vendor. Benjamin on Sales (6 ed.), Section 173.
    The same principle applies as in the exercise of a vendor’s right of stoppage in transitu, which is not extinguished by the actual and complete delivery of the goods consigned to the vendee or to some agent of and for him. Calahan v. Babcock, 21 Ohio St., 281; Car & Wheel Works v. Shorter, 8 Dec. Re., 290.
    The vendor and the vendee and his sub-vendees were all fellow members of the Cincinnati Chamber of Commerce, and as between members those rules have the same effect as rules of law, and in so far as they are applicable they enter into and form a .part of all contracts made by members with transactions on “change.” 17 Cyc., 866, 867.
    Bender and his sub-vendees were charged with notice of the rules that all purchasers of grain were to be for cash and to be paid for on delivery, and that delivery was not complete until the car was unloaded -and officially weighed out by the official weigher of “change.”
    This was not an absolute delivery, and no title passed to Bender until it was officially weighed and the price paid. Car Co. v. Rolling Mill Co., 4 C. C., 301; Elevator Co. v. Bank, 23 Ohio St., 311; Hodgson v. Barrett, 33 Ohio St., 67; 2 Mechem on Sales, Sections 541-557.
    A sale of goods for cash is strictly speaking a sale on condition until payment has been made or waived, the contract remains executory and delivery in such case is not a completion of the contract. Frech v. Lewis, 218 Pa. St., 141.
    The ascertainment of the official weight and the payment of the price was a condition precedent to the passing of title. 1 Mechem on Sales, Section 540; Elevator Co. v. Bank, 23 Ohio St., 311; Bonham v. Hamilton, 66 Ohio St., 89; Benjamin on Sales (6 ed.), Section 318.
    And if the condition be not performed the goods may be retaken b)^ the vendor. 1 Mechem on Sales, Section 554.
    Even from a bona tide sub-vendee for value if the vendor had done nothin s: to estop himself. 1 Mechem on Sales, Section 555; Bank v. Railroad Co., 44 Minn., 224; Freeman v. Kreamer, 63 Minn., 242; Benjamin on Sales (6 ed.), 282, 283; Coggill v. Railroad Co,, 3 Gray, 545.
    Even though the goods were purchased for resale. Sargent v. Metcalf, 5 Gray, 306; Armour v. Pecker, 123 Mass., 145.
    And this right of the seller to retake his goods is one which cannot be defeated by any local usage.
   Summers, C. J.

All the parties to the sale were members of the Cincinnati Chamber of Commerce, the sale was there made and was subject to the following rule of the organization governing purchases of grain:

“Rule 7, Section 1. All purchases of grain, unless otherwise agreed upon, are understood to be for cash and to be paid for on delivery.”

A witness for the plaintiffs testified that the manner of selling grain in carload lots on “change” is as follows: The official grain inspector of the Chamber of Commerce grades the grain in the car in the railroad yards, and delivers a samplé of the uniform grade of the grain in the car to the consignee or owner, who then exhibits the sample on “change” and when he makes a sale he delivers to the purchaser the sample and a delivery order, like that set out in the statement of facts, to the carrier to deliver the car to the purchaser or order, and the purchaser then orders the car to his elevator or switch, or wherever he wishes to unload it, and as it is being unloaded it is weighed by the official weigher, who gives the seller a certificate of the weight and the seller then makes a bill to the buyer at the agreed price, which the buyer pays in cash upon its1 receipt. A witness for the defendants testified on cross-examination that on “change,” in the trade, a delivery of the order is considered a delivery of the property, and that when the order is delivered it is customary for the buyer to pay 80 per cent, of the price, according to the estimated weight of the car, and that the balance is paid upon receipt of a bill with the certificate of the official weigher attached.

It is undisputed that settlement was to be based upon the certificate of the weigher, and the circuit court based its decision upon the assumption that, as under the rule, sales were cash on delivery and as under the usage the weight was to be ascertained as the car was unloaded, delivery could not be complete until the weight was certified. It is elementary in a sale of specific chattels that neither payment nor delivery is essential to the passing of title. The passing of the title may be conditional on payment, but generally, in such sales the title passes, but delivery and payment are immediate and concurrent acts, and if delivery be made in expectation of immediate payment and such payment is not made, the seller may reclaim the goods. When the goods must be counted, weighed or measured in order to identify them, the property does not pass, but when they are specific and these acts are to be done merely to ascertain the sum to be paid, the title may pass although the goods have not been delivered. The passing of the title depends upon the intention. If delivery has not been made, or if made in order that the price may be ascertained, the presumption is that the property has not passed. If the sale is for cash, or cash on delivery, and delivery is made, the presumption is, that it was made in expectation of immediate payment, and that the delivery was conditional; and the same is true and the presumption stronger when weighing is to be done by the buyer. In Wabash Elevator Co. v. First National Bank of Toledo, 23 Ohio St., 311, there was a sale on “change” between two commission men of five thousand bushels of corn. The seller sent by a clerk warehouse receipts to the buyers in expectation of immediate payment. The buyers accepted the receipts and informed the clerk that they would credit the seller with the price. The seller would not consent to this and the buyers refused to return the receipts. The court held that a delivery with the expectation of receiving immediate payment is not absolute, but conditional until payment is made, and, when there is no waiver of payment, no title vests in the purchaser until the price is paid. In Hodgson v. Barrett, 33 Ohio St., 63, the sale was of a barge load of coal, one-half cash. The coal was delivered and a check given for the cash. The check went to protest and the seller replevied the coal, and it was held: “2. Where goods are sold for cash, delivery and payment are concurrent conditions of the sale; and a delivery made in expectation of immediate payment is conditional only; so that if payment be refused, the vendor may reclaim the goods. 31 Where payment is made by a check, drawn by the purchaser on his banker, this is a mere mode of making a cash payment, and not the acceptance of a security. Such payment is conditional only, and if the check upon due presentation is dishonored the vendor’s right to retake the goods from the purchaser remains in full force.”

But payment as a condition may be waived by the seller, and if it is the .property vests' in the buyer. All attending circumstances may show that the delivery was not conditional, even when weighing is necessary to ascertain the price, and that the intention was to transfer both the title and possession and to trust the buyer to pay when the price is ascertained. In the present case no presumption of waiver would arise merely from the delivery of the car to the buyer, for by the rule of the Chamber of Commerce the sale was for cash on delivery and the sum to be paid could not be ascertained until the oats were weighed, which by the usage on “change” was- to be done by the official weigher as the car was unloaded, so that delivery would not be complete until the oats were weighed. But if by the usage on “change” the delivery of a delivery order was the delivery of the oats and 80 per cent, of the estimated price was then payable and the balance when the, weight was officially certified, then Good & Company waived payment in cash on delivery when they gave the deliver}^ order without the cash payment, and the 80 per cent, either was payable on demand or credit for the whole price was extended to Bender until the weight was officially certified, and the title of an innocent sub-vendee from Bender would be good against Good & Company. And, independently of the usage, last referred to, when it is considered that the sale was made on “change” b}r one dealer to another dealer and not to a consumer, and that a delivery order was given directing the delivery not merely to the buyer, but to him or to his order, the conclusion must be that Good & Company assented to a sale and delivery of the oats by Bender, and that it was the intention of Good & Company by the sale and the giving of the delivery order to transfer both the title and the unconditional possession of the property to Bender.

The transaction, though fraudulent on the part of Bender, was not void, but only voidable. If the delivery without payment was merely a waiver of immediate payment, or an extension of credit, it may be that as between thé vendor and the vendee the vendor could have protected himself, for it is an implied condition in a sale on credit that the buyer shall keep his credit good. Diem v. Koblitz, 49 Ohio St., 41. Good & Company as against Bender might have repudiated the transaction, but they could not do so at the expense of an innocent sub-vendee. “When a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and possession, although the vendee has committed a false and fraudulent misrepresentation in order to effect the contract or obtain the possession, the property vests in the vendee until the vendor has done some act to disaffirm the transaction; and the legal consequence is that if before the disaffirmance the fraudulent vendee has transferred either the whole or a.partial interest in the chattel to an innocent transferee, the title of such transferee is good against the vendor.” Kingsford v. Merry, 1 H. & N., 503; Pease v. Gloahec, L. R., 1 P. C., 219.

It is true that a delivery order, unlike a bill of lading, is not considered a symbol of the goods so that a transfer of it is constructively a delivery of the goods, but is considered merely a request in writing by the owner of goods to his agent or bailee, having custody of the goods, to deliver them as therein directed, and that the seller may revoke the order against an innocent sub-vendee of the goods and transferee of the order. But when the order has been executed and the goods have been delivered to an innocent sub-vendee, or the bailee has attorned to him, it is too late to revoke the order. As to him there is nothing to revoke, the delivery has been actually or constructively made and the goods are no longer in the possession of the seller, but in the possession of the sub-vendee or in the possession of his agent. In Ker & Butterworth’s Fifth Edition-of Benjamin on Sales, 471, it is said in substance that in this country, as well as in England, purchases by an insolvent buyer who does not intend to pay are treated as voidable and not void, and that while in some of the 1 states the transaction is treated as absolutely void, the rights' of innocent purchasers from a fraudulent buyer are protected, and that it is of little practical importance whether the protection is afforded on the ground that the original contract of sale is valid until disaffirmed, or whether the preference of the right of an innocent third person is based upon the principle, that when one of two innocent parties must suffer from the fraud of a third, the loss shall fall on the one who enabled the third party to commit the fraud.

It follows that the correct result was reached in the court of common pleas and that the circuit court was in error in reversing the judgment, and the judgment of the circuit court is reversed and the judgment of the court of common pleas is affirmed.

Reversed.

Spear, Davis, Spiauck and Price, JJ., concur.


text:
    Thompson & McDonald v. Miser.

      Sale of stallion for breeding purposes — -By one not dealer in horses— No implied warranty by vendor.

    In a present and executed sale of a stallion, by one who is not a dealer in such horses for breeding purposes,'1 there is no implied warranty that the stallion is reasonably fit for breeding purposes, although the seller knows that the vendee buys the horse for such use. (Hadley et al. v. 'The Clinton County Importing Co., 13 Ohio St., 502, followed.)
    (No. 11546
    Decided June 7, 1910.)
    Error to the Circuit Court of Jefferson county.
    On the 13th day of March, 1901, John G. Thompson, one of the plaintiffs in error, sold to the defendant in error, John G. Miser, a stallion owned by Thompson and the other plaintiff in error, Andrew W. McDonald, for $800 cash and $100 on July 1, 1902, providing the stallion served eighty or more mares during the year 1901.
    There was a written contract, a copy of which is as follows:
    “This contract of agreement made this, the 13th

      day of March, 1901, between John G. Thompson, party of the first part, and John G. Miser, party of the second part, both of Jefferson County, Ohio.
    “Wherein : Party of the first part sells to party of the second part the stallion Royal Windsor (9059) (10005) and in consideration party of the second part pays the sum of ($800) eight hundred dollars cash on the signing of this contract and party of the second part further agrees to pay ($100) one hundred dollars more on July 1, 1902, provided, the said stallion Royal Windsor (9059) (10005) serves eighty or more mares during the .year 1901.
    “J. G. Thompson,
    “(Signed) ' '“J. G. Miser.”
    In 1903 the defendant in error commenced an action against the plaintiffs in error to recover damages in the sum of $700 on the ground of false representations in the sale. The answer does not appear in the printed record, but it does appear that upon a trial a verdict for $365 was rendered and judgment entered upon the verdict, and that on error in the circuit court, the judgment was reversed on the ground that the verdict was against the evidence, and the court erred in the admission and in the exclusion of evidence and in its charge to the jury.
    An amended petition was then filed, setting up two causes of action, a copy of which is as follows:
    “Now comes the plaintiff herein with leave of the court and says that at the time hereinafter mentioned, defendants were co-partners doing business in Jefferson county, Ohio. That said defendants were breeders and dealers in horses, stallions, etc., and at the time hereinafter mentioned were engaged in breeding, raising and dealing in breeding horses for breeding purposes.
    “That on the 13th day of March, 1901, said defendants sold to plaintiff a certain stallion ‘Royal Windsor’ for breeding purposes, for the consideration of $900; cash in the sum of $800 and $100 in July, 1902. _
    _ “That said defendants were informed and knew of the purpose for which said horse was wanted, and sold him to plaintiff for breeding purposes and no other, and that said defendants thereby impliedly warranted said horse to be fit and suitable for breeding purposes and a reasonably sure foal getter; and said plaintiff accepted said horse' with the implied warranty and belief that said stallion was fit for the purpose of breeding and a reasonably sure foal getter.
    “Plaintiff furthet says that said stallion was not as represented; did not fulfill said warranty and did not answer the purpose for which he was warranted and for which he was bought and sold; he was not an average breeder and was not a reasonably sure foal getter. That said plaintiff gave said horse a fair trial of two seasons and he at no time was reasonably fit for breeding purposes and was not a sure average foal getter. Plaintiff was therefore damaged in the sum of $800.
    “Plaintiff for a second cause of action says that on the 13th day of March, 1901, the defendants sold and delivered to plaintiff a certain stallion ‘Royal Windsor’ for the sum of nine hundred dollars. That the defendants for the purpose of inducing plaintiff to purchase said stallion and enter into the contract for the payment of said price, and with the intention of deceiving plaintiff, then stated to plaintiff that said stallion was a sure average breeder and would get with foal 60 per cent, of the mares bred to him; that they had a 60 per cent, guarantee for said stallion which said stallion fulfilled; that he was a 60 per cent, breeder and a sure average foal getter.
    “Said plaintiff relying upon said representations was induced thereby to purchase said stallion for the sum of $900, payable as shown by the paper writing hereto attached and marked exhibit ‘A.’

    “Said representations were false; said stallion was not as represented by defendants; he was not and is not a sure average foal getter and was not a sixty per cent, breeder and is not and was not reasonably fit for breeding purposes. Said defendants did not have a 60 per cent, guarantee when said representations were made as aforesaid, but on the contrary, at the time said plaintiff purchased said stallion, the defendants had no guarantee as represented and never had more than a conditional guarantee which had expired and the truth about which defendants concealed from plaintiff and misrepresented as aforesaid, for the purpose of inducing said sale.
    “Said representations were false and said defendants knew them to be false or should have known them to be false at the time they were made; and the aforesaid conduct and statements of defendants were made' with the intention of deceiving plaintiff and inducing him to purchase ■said stallion; said plaintiff had faith in the conduct and statements of defendants; relying thereon and deceived thereby, he purchased said stallion for the purpose aforesaid greatly to his'loss and damage.
    “Wherefore, by reason of the allegations .aforesaid, plaintiff has sustained damages in the sum of $800 for which he asks judgment, and for all other and proper relief.”
    The defendants answer, admitting the sale, but deny “that they or either of them ever stated or represented to plaintiff that said stallion would get with foal 60 per cent, of the mares bred to him and further deny that they or either of them stated or represented or guaranteed that they had purchased said stallion on a 60 per cent, guarantee or that he was guaranteed to get with foal 60 per cent, of the mares bred to him, but say and aver that they did purchase said stallion from one Alex. Galbraith on the 4th day of March, A. D. 1899, and that said stallion was guaranteed by said Galbraith to defendants, to leave with careful handling-60 per cent, of foals from mares known to be regular breeders, but defendants aver that no statement or guarantee was made by defendants or either of them as to the terms or conditions on which defendants had purchased said stallion.” Defendants further aver that the plaintiff did not properly handle the stallion but misused him. The case was again tried to a jury and a verdict returned for $500 upon which judgment was entered and the judgment affirmed on error in the circuit court.

      Mr. Henry Gregg and Mr. Ira C. Blackburn, for plaintiffs in error.
    Mr. Miser examined the horse and made a thorough investigation and spent some time in making. said examination according to his own testimony. “Where a definite and ascertained article is agreed upon” (as in this case this horse, Royal Windsor) “and the buyer gets the very thing he barg-ained for, there will be no warranty implied that it is suitable.” Mechem on Sales, Sections 1311, 1155. And this is the case where the party selling is the grower and knew the purpose of the buyer and it is equally true of a dealer in like articles under similar circumstances, but in this case the evidence shows that plaintiffs in error were neither the growers, breeders nor dealers in horses and this evidence is uncontradicted. White v. Stelloh, 74 Wis., 435; Eagan v. Call, 34 Pa. St., 236; Lord v. Grow, 39 Pa. St., 88; Boiler Co. v. Duncan, 87 Wis., 120; Horner v. Parkhurst, 17 Atl. Rep., 1027; Seitz v. Refrigerating Co., 141 U. S., 510; Hight v. Bacon, 126 Mass., 10; Shisler v. Baxter, 109 Pa. St., 443; Weimer v. Clement, 37 Pa. St., 147; 3 Page on Contracts, 2285; Swan’s Treatise, 826; Scott v. Renick, 35 Am. Dec., 177; McQuaid v. Ross, 85 Wis., 492, 39 Am. St., 864; Mechem on Sales, Sections 1311-1320.
    No warranty implied on sale of ascertained chattel open to inspection. Mechem on Sales, Section 1355.
    Mr. Miser wrote the contract and if there was to be any warranty in this kind of a sale under the law governing such a sale it was Mr. Miser's duty to have taken advantage of this and have so drawn the contract that it would have contained an express warranty. 3 Page on Contracts, 2285.
    Knowledge of purpose no warranty of fitness. Marsden v. Soper, 11 Ohio St., 502; Benjamin on Sales, Section 647.

      Mr. Jay S. Paisley, for-defendant in error.
    In the case at bar the very thing bargained for by.defendant in error was a sure average breeder —at least 60 per cent. The evidence clearly shows that Miser did not get the “very thing he bargained for.” Redhead Bros. v. Cattle Inv. Co., 102 N. W. Rep., 144; McCorkell v. Karhoff, 90 Ia., 545, 58 N. W. Rep., 913; Wingate v. Johnson, 101 N. W. Rep., 751; Bank v. Prase, 36 N. E. Rep., 378; Supply Co. v. Davidson, 8 C. C., N. S., 417, 75 Ohio St., 611.
   Summers, C. J.

The court charged the jury that the second cause of action was founded upon an express warranty and upon false and fraudulent representations, and then said that there was no evidence to support that cause of action and that the jury should not consider it. The court then charged the jury, before argument:

“If you find from the evidence that the defendants were breeders or dealers in breeding horses and that the stallion, Royal Windsor, was sold to plaintiff for breeding purposes, and that it was so known and understood by both parties, then I charge you, in the absence of express warranty, that there was an implied warranty that said stallion would be reasonably fit for breeding purposes and a reasonably sure average breeder; and if you shall also further find from the evidence that said stallion was not a reasonably sure foal getter and reasonably fit for said purpose, without any fault of plaintiff, you should find for the plaintiff, J. G. Miser.”

The court was in error in both instructions. The second cause of action was not based upon an express warranty but upon deceit, and it appears from page 67 of the record that the plaintiff testified as follows: “Of course, I knew where' he had bought the horse before that, from Mr. Galbraith. I asked him on what terms he had bought the horse and he told me he had bought that on a 60 per cent, guarantee and he said that he had fulfilled that guarantee, that he was a sure breeder with them. He said that he was a sure breeder and had been a sure breeder with them, and I thought, if he was sure with them, he would be sure with me. I bought him with that understanding.”

The first cause of action was grounded upon an implied warranty, and the court instructed the jury that if the defendants were breeders or dealers in breeding horses and sold the stallion to the plaintiff for breeding purposes, and it was so known and understood by both parties, then, in the absence of an express warranty, there was an implied warranty that the stallion would be reasonably fit for breeding purposes and a reasonably sure average breeder; and that if they found that he was not a reasonably sure foal getter and reasonably fit for that purpose, without any fault of plaintiff, they should find for the plaintiff. There was no evidence tending to prove that the defendants were breeders or dealers, and, if they were, the instruction is contrary to the law laid down by this court in Hadley et al. v. The Clinton County Importing Co., 13 Ohio St., 502.

On page 171 of the record McDonald- testified, and his testimony is uncontradicted, that he was not such a producer or dealer, that he had several teams, and that wishing to raise some good horses for his own use, and in order to help Mr. Thompson buy a good horse when his other horse died, he took a half interest in the stallion, that he bred some of his mares to the horse, that he had nothing to do with the sale of him, and when Mr. Thompson first asked permission to sell him he said “no,” but that he afterwards told him to sell him if he wished to. And as to Mr. Thompson, the evidence does not show that he was a dealer in stallions, but that he had a couple of young stallions and offered to sell one of them to the plaintiff, that the plaintiff came to his place to see these stallions, but took a fancy to the horse Royal Windsor, that he remained over night at Mr. Thompson’s residence, examined the stallion Royal Windsor several times and also looked at a number of his colts, some owned by -Mr. Thompson and others in the neighborhood, and at some mares that were in foal by the stallion. It further appears from the evidence that the plaintiff himself had kept a stallion for breeding purposes for a number of years.

In Hadley et al. v. The Clinton County Import ing Co., supra, there was a sale at auction of imported breeding cattle, and the plaintiffs purchased a cow for breeding purposes paying for her $1,050. A short time previous to the sale, the vendors had, by artificial means, taken from the cow a calf which had the appearance of being dead for several weeks prior to its delivery, and it was claimed that this in the opinion of breeders greatly, if not totally destroyed the value of the cow for breeding purposes, and- that this fact had not been made known to the purchasers. The suit was to recover damages, either on account of a warranty, or on account of fraud. Tt was held: “1. In executed contracts of sale of personal property, the rule of the common law is, caveat emptor, and there is no implied warranty as to the quality of the article sold. But' fraud in the vendor constitutes an exception to the rule. 2. Where the evidence tended to^ show, that a cow had been sold and purchased for a breeder, and to improve the plaintiff’s herd of cattle, that there was a latent defect, which would greatfy impair, if not destroy her capacity to breed, that this was known to the vendors, and unknown to the vendees, and was not disclosed at the time of sale, and a charge was asked that if these facts were found by the jury, then, and in that case, the defendants would be guilty of practicing a fraud. Held: that the charge was properly refused, as asking from the court a conclusion of fact and not matter of law.”

The common law maxim of caveat emptor is stated as follows: “It is the well settled and general rule of the common law, differing in this respect from the civil law, that, upon the present and executed sale of a definite, ascertained and existing chattel which is open to the inspection of the buyer, and of which the seller is neither the manufacturer nor the grower, no warranty whatever as to quality, fitness or condition is implied. In such cases, unless there is fraud or the seller gives an express warranty, the rule of the common law is practically without exception that the buyer purchases at his own risk. Caveat emptor is the invariable maxim*. If the buyer wishes further protection than his own inspection or judgment can give him, he must exact a warranty.” 2 Mechem on Sales, Section 1311; Rodgers & Co. v. Niles & Co., 11 Ohio St., 48, 53; Jones v. Just, L. R., 3 Q. B., 197. There are many exceptions to the rule. Scott, J., in Rodgers & Co. v. Niles & Co., 11 Ohio St., 48, 53, says that the exceptions are found in cases where it is evident that the purchaser did not rely upon his own judgment of the quality of the article purchased; the circumstances showing that no examination was possible on his part, or the contract being such as to show that the obligation and responsibility of ascertaining and judging of the quality was thrown upon the vendor, as where he agrees to furnish an article for a particular purpose or use.

In Scott v. Renick, 1 B. Monroe, 63, in a suit for a rescission of the purchase of an imported short horn cow, Mr. Chief Justice Robertson said: “There is no proof of either fraud, express warranty, or even any misrepresentation by Renick. And we" cannot admit that Scott, having as he had, as much or nearly as much acquaintance as Renick had with the cow when he made the contract of purchase, the law implied any warranty that she was, or would continue to be a good breeder merely from the fact that she was bought with that expectation and for that kind of use. In such a sale of such an article, it seems -to us that custom, policy and law unite in applying the maxim caveat emptor, -and that the purchaser takes the thing upon his own judgment, risking both the quality and the value of it.” In White v. Stelloh, 74 Wis., 435, it is held:- “A bull calf at the time of sale having been but three months old, apparently free from defects, and present to the view of the purchaser, it cannot be held as a matter of law that his sterility, which transpired two years later, existed at the time of sale and that there was an implied warranty that at maturity he would possess the power of procreation.” In McQuaid v. Ross, 85 Wis., 492, it is held: “Where, upon the sale of a bull, both parties are alike destitute of knowledge or the means of forming an intelligent judgment as to his ability to generate his kind, and there is no misrepresentation' or fraud and no express warranty, no warranty can be implied in that respect merely because a full price was paid for a bull for breeding purposes and the seller knew that he was being purchased for that purpose.” In Merchants’ & Mechanics’ Savings Bank v. Fraze, 9 Ind. App., 161, 53 Am. St. Rep., 341, it is held that there is an implied warranty in the sale of a stallion for breeding purposes, when the sale is made by one who raises horses of that kind, deals in them, and therefore knows their qualities, that he shall be reasonably fit for breeding purposes.- This case seems to have been followed in the instant case, but in that case, the sellers were producers and dealers, and the contract was treated as executory, though it was stated in the opinion that it was not strictly such. As we understand Hadley et al. v. The Clinton County Importing Co., 13 Ohio St., 502, supra, the rule of caveat emptor applies to the present case and the only issue for the jury was that of fraud. The contract was in writing and contains no warranty, and the purchaser seems to have assumed that the horse was a sure foal getter, for he agrees to pay an additional sum if the liorse covered a stated number of mares, but he avers in his petition that the defendants made false representations upon which he relied and upon the trial he so testified, so that the judgment must be reversed and the cause remanded for a new trial.

Judgment reversed.

Davis, Shauck and Price, JJ., concur.


author: By the Court.

text:
    Lee v. Benedict.

      Revieiuing court to pass on alleged errors — On motion to vacate judgment• — Requires finding of forts or bill of exceptions— Error for court hearing such motion to enter judgment, when.

    1. To enable a reviewing court to properly pass upon alleged errors occurring at the hearing of a motion in the court of common pleas to vacate a judgment of a previous term for irregularity in obtaining such judgment, there should be presented a record including a finding of facts, or a bill of exceptions showing all the evidence given at the hearing.
    2. Proper practice in such case requires that the court, upon the hearing of such motion, should first pass upon the ground of irregularity charged and if sustained and the defendant had shown what in law if established would- be a defense, then order the judgment suspended- until the cause should be tried on its merits. And it is error for the court, upon the hearing of such motion, to enter final judgment of vacation. Watson v. Paine, 2S Ohio St., 340; Pollett v. Alexander, 58 Ohio St., 202, approved and followed-.
    (No. 11946
    Decided June 7, 1910.)
    Error to the Circuit Court of Cuyahoga coúnty.
    From the very scanty record printed in this case it appears that the controversy between the parties originated in a suit before a justice of the peace, and was appealed to the common pleas, the petition of the plaintiff below, F. W. Benedict, being filed in that court August 7, 1908. The party sought to recover the sum of one hundred and sixty dollars for commissions claimed to be due plaintiff for services rendered in and about the leasing of certain buildings in the city of Cleveland. No answer, or other pleading, having been interposed by defendant, and the cause standing on default, the court of common pleas, on February 23, 1909, rendered a judgment for plaintiff for the amount claimed with interest. On April 21, following, the defendant, Louis J. uee (plaintiff in error in this court), filed in the common pleas a motion to vacate and set aside the judgment rendered against him of February 23, 1909, and later, to-wit: April 28, 1909, an amended motion seeking the same relief, the motion being based on section 5357, Revised Statutes, and the ground stated therein being irregularity in the manner of obtaining the judgment. That motion was heard and sustained May 5, 1909, the court thereupon rendering judgment against plaintiff for costs, and further adjudging: “And said judgment is hereby vacated and set aside, and this cause is reinstated on the docket.” On error to the circuit court this judgment was reversed. To obtain a reversal of the latter judgment this proceeding is prosecuted.

      Mr. John A. Thompson, for plaintiff in error.

      Mr. Geo. A. Groot, for defendant in error.
   By the Court.

It is manifest that, upon the record here presented, the judgment of the circuit court should be affirmed. Whatever irregularities, or errors, if any, attended the rendition of the judgment of February 23, 1909, it was not absolutely void, and no ground was shown justifying its unqualified vacation. It was the duty of the trial court, therefore, on the hearing of the motion, before entering any judgment to first find and adjudge that there had been shown a valid defense to the action, and then, upon finding that the irregularity complained of 'had been proven, to suspend the judgment until the cause should be tried on its' merits. Whatever irregularities may have been proven at the hearing of the motion, there was no justification in law for the final judgment that was rendered. Watson v. Paine, 25 Ohio St., 340; Follett v. Alexander, 58 Ohio St., 202.

It -is just possible that this court, if a full record' had been presented, might dispose of the motion finally at this-time, but that cannot be done on the meager and very unsatisfactory record before us. If the motion should be again heard it is presumed that counsel will see and act upon the importance of a full bill of exceptions, or at least a finding of the controlling facts, and a complete record, should a review be desired. The judgment of the circuit court will be affirmed and the cause remanded to the court of common pleas with directions to hear the motion to vacate, and for any further proceedings that may be necessary.

Judgment affirmed.

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