author: Hitchcock, C. J.

text:
    *Pierre Choteau, Jr., et al. v. Thomas G. Raitt.
    In the prosecution of a partnership claim, as a general rule, all the partners are necessary parties, and' if one of the partners has been omitted, he is not a competent witness for the plaintiffs, although the counsel for the defendant may have stipulated before the trial that the omission to make the proper party shall not defeat the action.

    A notice given to produce a paper claimed to be in the possession of the party to whom the notice is given, is not, as a general rule, a reasonable notice, unless given before the trial of the cause in which said paper is wanted is commenced.
    Error to the Supreme Court of Huron county.
    The original action in this case was commenced by the plaintiffs in error against the defendants, in assumpsit, in the court of common pleas of Huron county.
    The first count in the declaration was special, upon a contract, of which the following is a copy:
    “Article of agreement, entered into at Detroit, State of Michigan, this Ocoto.ber 26, 1844, between Thomas Raitt, of Norwalk, State of Ohio, of one part, and P. Choteau, Jr. & Co., of New York, by William Brewster, of Detroit, aforesaid, of the other part: Witnesseth—
    “ 1. That the said Raitt does hereby agree to purchase all the furs and skins which he can obtain at safe and reasonable rates (said rates to be regulated, from time to time, by instructions from said Brewster), at Norwalk aforesaid, and the adjoining country, from the present time until the close of the season for purchasing the same next expiring, which furs and skins, so purchased by said Raitt, shall be and remain the property of the said P. Choteau, Jr. & Co., and be held ^subject to the order and con trol of the said P. Choteau, Jr. & Co., until all advances which shall be made by P. Choteau, Jr. & Co., or the said Raitt, with interest on same, shall be fully paid and canceled; and the said Raitt agrees to collect the furs and skins purchased by or for him, at Norwalk aforesaid, as fast as the same are purchased, and to keep them in safe and proper places, until he closes his purchases of the same next spring, at whieh time ho, the said Raitt, agrees to bring all of said furs and skins to Detroit, and to deliver the same to said Brewster, who shall pay the said Raitt the market price of Detroit for said furs and skins. The said Raitt shall also keep the said Brewster advised of the quantity of furs and skins which he has on hand from time to time, and the cost of the same.

      “ 2. The said P. Choteau, Jr. & Co., by said Brewster, agree to advance to said Raitt funds for the purchase of furs and skins, as above stated, in such amounts as they shall deem proper, for which advances they shall charge interest at the rate of seven per cent, per annum; but in'no case shall the said Raitt use any of the funds so to be advanced him for any other purpose than purchasing furs and skins, under this agreement, nor shall he make any advances on account of the same.
    “P. Choteau, Jr. & 06.
    “ By William Brewster.

    “ Thomas G. Raitt.”
    “Signed, sealed, and delivered on the day and year above written.”
    It was alleged in this count of the declaration, that although the plaintiffs advanced large sums of money to Raitt on this contract, as by the terms of the contract they were bound to do, yet the said Raitt did not comply, on his part, in the purchase and delivery of furs and skins at Detroit, etc. The declaration also contained the common money counts.
    To this declaration the defendant pleaded the general issue, and gave notice of set-off.
    At the March term, 1850, of the court of common pleas. *the case was tried by a jury, and a verdict returned for the plaintiffs; whereupon the defendant moved for a new trial, which was overruled by the court, and judgment entered on the verdict.
    In the progress of the trial the defendant, by his counsel, excepted to the rulings of the court of common pleas in the admission of testimony, and also in the instructions given to the jury, and tendered two bills of exceptions, which were allowed, sealed, and made part of the record.

      To reverse the judgment, so as aforesaid rendered, a writ of error was sued out and prosecuted by the defendant in that case, and the case came before the Supreme Court of Huron county for hearing, at the August term, 1850.
    Tho errors assigned were—
    “ 1. That the court of common pleas erred in admitting the said Brewster as a witness, he being a partner and interested in said contract, and not competent as a witness for the plaintiffs.
    “ 2. That the court of common pleas erred in admitting to the jury the copy of the letter, mentioned in said bill of exceptions, of March 29, 1845.
    “3. That the court of common pleas erred in the instructions they gave to the jury, as contained in the second bill of exceptions, in respect to the construction to be put on said contract, and the effect of the testimony of said Brewster in respect'to said schedule of prices.
    “4. That judgment was given for the plaintiffs, whereas it should have been given for defendant.”
    In the Supreme Court the judgment was reversed for the first two errors assigned, the court expressing no opinion upon the last two.
    This writ of error is prosecuted to reverse the aforesaid judgment of reversal.
    The bill of exceptions is not inserted at length, because it is believed that enough of its contents appears in the opinion *of the court to show clearly the principles upon which the case was decided.
    James A. Yan Dtke and J. R. Osborn, for plaintiffs:
    Was Brewster a competent witness?
    I. The depositions of Doekstader and Hollister were not sufficient to establish the interest of Brewster.
    A witness may testify as to his “ impression,” but this testimony is to be weighed by the jury; and if the impression be “slight,” or an unwarranted deduction, then it should be rejected. 1 Greenl. Ev. 440; 1 C. & H. 154; 5 Pick. 244; Cutler v. Carpenter, 1 Cow. 81; Halliday v. McDougal, 20 Wend. 81; 2 Greenl. Ev. 456-465.
    But this question of interest, though involving facts, is for tho courWnot for the jury. 1 Greenl., 4 ed., 530, sec. 425; 7 Wood. 57; 2 Smith’s Leading Cases, note to page 65; Hart v. Hailun, 3 Rawle, 407; 2 Cow. & Hill’s Notes, 1501.

      Competency of witness is always presumed. The burden of showing to the contrary lies on the objectors. Marsdell v. Stanfield, 7 Barn. & Cres. 815 ; 4 Cow. 427, 430 ; Milligan’s Lessee v. Dickson, 1 Pet. C. C. 434, note; see Starkie, (6 Amer. ed.) 121, 122.
    Was Brewster a competent witness as shown on his voir dire? See 1 Greenl. 527, 528, secs. 422, 423; also, Cow. & Hill’s Notes, 780, 1576.
    On cross-examination, he says he never was a partner of the firm of P. Choteau, Jr. & Co., the parties to said contract, and plaintiffs in the suit; that he was interested in the subject matter as stated with Pierre Choteau, Jr. & Co., but that, at the time of his being sworn, he had no interest—mutual releases had passed. It is interest at the time of examination which disqualifies. 2 Binn. 497. See 2 Wend. 527; Bayley v. Osborn, 1 Pet. C. C. 306; 1 Cow. & Hill, 266.
    *But we now proceed to show, that, in fact, Brewster was not a necessary, or even a proper party to the suit. See Cothey v. Fennel, 21 Eng. Com. Law. 7, 146.
    Brewster was, by a contract between himself and Pierre Choteau, Jr. & Co., placed in a relation with them which the law declares to be a partnership. Dejure, he was a partner; defacto, he was not. Bickerton v. Bonnell, 5 M. & Sel. 383; 2 Greenl. Ev., sec. 478; Comyn on Contracts; 4 Barnw. & Cresw. 666; Collyer on Partnership, secs. 653, 651; 2 Barr. 89; 21 Eng. Com. Law. 146.
    II. It is sufficient to give notice to produce the letter during the trial, if there be sufficient time to comply with it, without interrupting the trial, and where the paper is, or may be presumed to be, at place of trial. 2 Cow. & Hill, 1186.
    The showing; to admit the secondary evidence, was sufficient. See 6 Cow. 90, 100, 101; Thallburn v. B., 2 Cow. & Hill’s Notes, 1203, 1204; Id. 1242. It does not appear that any exceptions were taken to the rulings of the court as to this letter.
    And we assume it to be the law, that, not only must objection be interposed, but exception taken, at the time of the ruling. See the doctrine aud ruling on this subject, well condensed, in 2 Cow. & Hill’s Notes, 788, 990-993. As to vagueness in bills of exceptions, 1 Ohio, 212; 4 Ohio, 79, 388; 1 United States Dig. 412, No. 9; An. Dig. 1847, 96, No. 54; 2 United States Dig. 167, sec. 216; Clark v. Dubehn, 9 Cow. 674; Smith v. Carrington, 4 Cranch, 62 ; 1 United States Dig. 415, No. 92; 1 Sup. to same, 285, Nos. 188, 191, p. 287, No. 231; Wagers v. Dilly, 17 Ohio, 439; Armstrong v. Clark, 17 Ohio, 495; Hall v. Reed, Id. 498; Coil v. Williams, 18 Ohio, 28.
    See also 7 United States Dig. 96, see. 54; 8 United States Dig. 50, sec. 20; 9 United States Dig. 76, secs. 20, 21, 25, 28, 34; 6 How. U. S. 279; 3 Hill, 75; 9 Wend. 262; 2 Cow. & Hill’s Notes, 791; McDougal v. Fleming, 4 Ham. 81; 1 United States Dig. 415, secs. 91, 92.
    *111. If it was erroneous to have examined William Brewster, the error is cured by the statute. Laws 1849-50, p. 33.
    The statute “ to improve the law of evidence,” which has since ■gone into effect, cured the error. This statute by its terms applies to actions pending at the time it took effect—not merely to actions thereafter to be commenced. If it is not made expressly applicable to such actions, the rules.of law will so apply it, as it is a mere regulation of practice. People v. Livingston, 6 Wend. 526, n., 530, 531; 1 Morris, 238; 8 United States Dig. 336, sec. 2; 9 Ib. 405, sec. 8; 5 United States Dig. (Supplement, vol. 1,) p. 242, No. 555. “ The court refused to reverse a judgment where a statute had been passed since its rendition, which would obviate the •error upon a new trial. Lyons v. Jackson, 1 How. (Miss.) 474.”
    We have already cited cases to show that there can be no reversal after judgment, on account of erroi’, if the error was immaterial, because the party is not prejudiced by the verdict. 1 United States Dig. 419, sec. 207; 2 Ib. 162, sec. 64; 6 Mass. 445 ; 17 Conn. 288; 17 Vt. 499; 10 Vt. 520; 11 Mass. 417; 20 Pick. 471; 4 Pick. 25 ; 9 Pick. 46 ; 24 Pick. 181; 11 Pick. 322; 3 United States Dig. 567, sec. 475.; 11 Conn. 342; 4 Vt. 471; 6 Mass. 445.
    IY. The act requiring notice, etc., practice act, pages, 676 and 97, has no application to this case. Bronson v. Kensey, 3 McLean, 180; 1 Baily, 540 ; 2 A. H. Notes, 1182 ; 2 Cow. & H. Ootes, 1180; Graham’s Prac. 524; Townshend v. Lawrence, 9 Wend. 458; 20 Wend. 682; 2 Hill, (N. Y.) 320; 3 Wash. C. C. 381.
    Y. If, therefore, an error has occurred, which could not have influenced the final result, the court will not reverse the judgment for that error. The principle is well recognized in the adjudicated cases.
    Conover v. Welch, 15 Ohio, 156 ; Vollan v. Moses, 3 Barl. Sup. C. 31; 2 Comstock, (N. Y.) 198, 193; 7 Ham. O. 214; 3 Met. 19; 1 Taunt. 12 ; 19 Eng. C. L. 162 ; 4 Wend. 453 ; 12 Ib. 41.
    *See also Reynolds v. Ex’rs of Hughes, 5 Hammond, 169 (5 O. Cond. 104, 106); Miller v. Stone, 13 Johns. 417; United States Dig. 186, see. 749; 3 Scam. 427 ; 3 Shep. 67; 2 Shep. 275; 10 Ib. 453; 3 Ib. 67; Baily v. Campbell, Scam. 47; 7 Serg. & Rawle, 219 ; 1 United States Dig. 415, sec. 106; 2 C. & H. Notes, 786 ; 2 Pet. 625; Hamilton v. Russell, 1 United States Cond. 318 (1 Cranch, 309) ; 9 Cow. 680; 1 Cranch, 132; 3 Gill & Johns. 450; 2 Hulst, 357.
    Worcester & Pennewell, for defendant:
    I. Was Brewster a partner with P. Choteau, Jr. & Co ? If so, he was not a competent witness, for he was interested in the result. According to his own statement, “P. Choteau, Jr. & Co. were to furnish him money for the purpose of purchasing furs over a large extent of country, and the profits and losses of the transactions were to be divided between lvimself and them." How to be divided does not appear; the presumption would be equally.This being so, it is vain for Brewster to swear to a conclusion of law, “that he never was a partner." The question is, was he to participate in the “profits?" He says he was to do so, and in the “ losses” also. And he would remark that the contract itself, is, in all respects, consistent with the fact of Brewster’s partnership. His copartners were to lurnish the cash capital, and he was to put in his service as an equivalent. He does not describe himself in the contract as “ agent ” oven, but he does describe himself throughout as the acting and business member of the firm—the party through whom, and by whom, the money was to be received and disbursed—whose duty it was to give directions and instructions—to whom the furs, when purchased, should be delivered, and with whom the final settlement was to be made. The contract does not state who constitute the firm of P. Choteau, Jr. & Co., and the words “ & Co.,” may, with as much consistency, embrace Brewster as Sanford, or any one else of the persons admitted to be members of the firm.
    - *Wo think it will not be seriously urged, as it was not at the trial below, that Brewster’s participation in the “profits and losses,” as to those adventures, was a mere mode agreed upon between himself and his associates, for fixing the amount of “compensation” for his services, without making him liable to third parties as a partner. This construction of the arrangement would be carrying the doctrine of “ compensation ” to an extent for which we think no precedent can be found in the books, and which, under the circumstances, would be exceedingly dangerous.
    We know of no instance in which one of several parties to a contract, whether general partners or not, has been allowed, in the mode pursued in this suit, to settle his interest in the subject matter of the suit with his co-contractors, exchange mutual releases pending the suit, and then be offered and admitted as a witness for the plaintiffs. If any precedent can be found for such practice, or that looks toward sustaining it, in any common law court, it has yet to come under our notice. See Story on Partnership, 50-52; Id. 344, 345, and 356 in notes; Id. 54, and 57 in notes; 2 Greenl. Ev. 393, 394; Gow on Partnerships, 16-18, and 137-141.

      The letter of March 29, 1845.—The court permitted a copy of a letter to be read in evidence, upon notice to produce the original, never proved to have been received, served during trial. By law, ten days’ notice must be served. Sec. 113 of the Practice Act.

       After the death of an ostensible partner, a surviving dormant partner may sue alone upon a partnership contract. Beach v. Hayward, 10 Ohio, 455.
      The names of dormant partners, though interested, and an ostensible partner, if it can be clearly proved that he had no interest, may be omitted. I Swan’s Prac. 41.

   Hitchcock, C. J.

The record in this case shows that the original suit was commenced by Pierre Choteau, Jr., John B. Sarpy, John F. A. Sanford, and Joseph A. Sire, under the name of P. Choteau, Jr. & Co. At the trial term of the court of common pleas, and before the trial was commenced, the counsel for the res]iective parties entered into a stipulation, which is as follows : “In this case it is matter of stipulation, that in event it appears that William Brewster should have ^joined as plaintiff, it shall not affect the suit or bar a recovery in the present form. Should Brewster be offered as a witness, and received, the defendant retains the right to except to any ruling admitting him.”

On the trial, the plaintiffs, to sustain the issue on their part, among other testimony, offered in evidence the contract declared upon in the first count of the declaration, and rested in chief.

After the plaintiffs had closed their testimony in chief, the defendant examined several witnesses, and read sundry depositions to sustain his defense.

To rebut the defense made, the plaintiffs offered William Brewster as a witness, to whose examination the-witness objected, on account of his incompetency; and to show this incompetency, read portions of the depositions of Nicholas Dockstader and Benjamin F. Hollister. Dockstader states that he is “acquainted with Raitt; that he is acquainted with P. Choteau, Jr., and John F. A. Sanford, of the firm of P. Choteau, Jr. & Co., and is also acquainted with William Brewster, of Detroit, but is not able to say whether said Brewster is a member of said firm or not; states that he has had dealings with said firm, and always did his business with said Brewster, and his impression always has been that Brewster was a member of said firm. Deponent resides in Cleveland, and has been engaged in the fur business there for twenty years.”

Hollister states that he “ resides at Perrysburg, in Wood county, Ohio; has been engaged in the fur business for thirty years ; that ho always understood that William Brewster was a partner with the plaintiffs.”

The defendant further read, to sustain his objection, the examination of William Brewster on his voir dire, when heretofore giving a deposition in the case; on which examination, he says, “that ho is not, and never was, a partner in the firm of P. Choteau, Jr. & Co., and that he has no interest in the event of this suit.” The question is then propounded to him, *“In what relation did you stand to P. Choteau, Jr. & Co., between October 26, A. D. 1844, and May 16, a. d. 1845, or in what capacity did you act for them?” To which he replied, “The arrangement was, that the firm of P. Choteau, Jr. & Co. were to furnish money to this deponent, for the purpose of purchasing furs over a large extent of country, and the profits and loss of the transactions were to be divided between deponent and P. Choteau, Jr. & Co.” In reply to a question propounded by plaintiff’s counsel, witness states, “ Said arrangement has wholly ceased, and was closed some time in December, 1849; that he was released and discharged by said P. Choteau, Jr. & Co. from all liability therein, and has no longer any interest therein.”

Upon this evidence, the counsel for defendant contended that Brewster was a partner with plaintiffs in this transaction, and therefore interested in the event of the suit, and not competent as a witness. The court, however, overruled the objection, and held that Brewster would be competent, and might testify, provided he would execute a release to P. Choteau, Jr. & Co. The release was executed, and he was examined as a witness.

This decision of the court was excepted to, and it was assigned for error in the Supreme Court, that therein the court of common pleas erred, and such was the opinion of the Supreme Court, and for this error, together with another which will hereafter be noted, the judgment of the court of common pleas was reversed.

Whether the court of common pleas erred in the decision above referred to, must depend upon the solution of two questions :

1. Whether Brewster, in making the contract with Eaitt, acted as the agent of Choteau, Jr. & Co., or, whether in this transaction, he was partner with them.

2. If a partner, is there anything in the stipulation of the counsel of the parties, as contained in the bill of exceptions, *whieh can bo so construed as to preclude the defendant from objecting to him as a witness.

Before proceeding to the consideration of these questions it may be proper to refer to an objection raised by counsel for plaintiff. It is said that whether Brewster was a partner, and interested in the case, depended, upon testimony bofor’e the court of common pleas, which must be considered and acted upon by that court; and that court having found, upon this evidence, that Brewster was not interested, this court is concluded by that finding. If the objection is well taken, it would rarely happen that this court would reverse a judgment because the court of common pleas had erred in the admission of testimony. When such questions are raised, the court, in which the trial is had, must, as a general thing, decide that question from the evidence before it. If an exception is taken, the whole evidence, relative to the point, is made part of the record, and the reviewing court is bound to look into that evidence, and, from the whole, to determine whether the inferior court did, or did not, properly admit or reject the witness.

Cóunsel have been led into an error, as I presume, from the action of this court in another class of cases. By our practice, an issue in fact may as well be submitted to the court as to the jury. This court hold, that if an issue is so submitted, no exception can be taken to the judgment of the court, upon its own finding. In such cases we hold that the court, in passing upon the issue, acts as a jury, and an exception can no more be taken to the finding of the one than the other. Whether the case is submitted to the court or to the jury, the party against whom the issue is found may move for a new trial; and if that motion is overruled, may except to the opinion of the court in overruling, and in that way get the whole evidence upon the record. If the case, under such circumstances, is removed by writ of error, the reviewing court must examine the whole ^evidence, and from that evidence determine whether the new trial should or should not* have been granted.

We will now proceed to examine the question, whether Brewster, in making the contract with Raitt, acted as the agent of P. Choteau, Jr. & Co., or whether, in this transaction, he was a •partner with them.

By the terms of the contract it might be difficult to ascertain the true character of Brewster. It purports to have boon made by Choteau & Co., by Brewster, with Raitt. Raitt, in purchasing furs and skins, is to be regulated by the instructions of Brewster. The furs and skins purchased by Raitt are to be and remain the propertj’' of Choteau & Co. until all the advances by them made shall be fully paid and canceled, with the interest. . The furs and skins purchased are to be delivered by Raitt to Brewster, at Detroit, who is to pay him therefor the market price at Detroit; and further, Raitt is to keep Brewster advised of the quantity of furs and skins he may have on hand, from time to time. Choteau, Jr. & Co., by Brewster, agree to advance to Raitt money with which to purchase, and for which he is to allow them interest at the rate of seven per cent. Throughout the whole contract Brewster seems to be the active man oq the one part. Choteau, Jr. & Co. have only to advance money through him, and through’ him receive the avails of such advancement. In all this, however, there is nothing inconsistent with the idea that in all this business he may have acted as the agent of P. Choteau, Jr. & Co.

To show that ho was in fact a partner in this transaction, the depositions of Dochstader and Hollister were read. It is true neither of these witnesses undertake to state positively that he was a partner, though such had been their understanding, and the former had had dealings with the firm, and Brewster was the man with whom ho dealt. This was competent testimony to have gone to a jury in a ease where the question of partnership was involved, and had a jury, with this evidence before it, found that the partnership existed, a court would hardly have *granted a new trial, because the verdict was unsustained by proof.

But when we look into the examination of Brewster himself, it would seem that no doubt could remain upon the subject. He says that he was not a partner in the firm of P. Choteau, Jr. & Co.; and this was probably true, so far as concerned their general business. That was a firm doing business in the city of New York ; he was operating in the fur business, at Detroit, and in the surrounding country. He speaks of an arrangement between himself and that firm, which was in existence at the time this contract with Raitt was entered into, by which that firm was to furnish him money, and he was to purchase furs and skins over a large extent of country, and the profits and loss of the entire business were to be shared equally between himself and the company. Had the arrangement been that he was to share in the profits only, this share might well have been held to be in the nature of wages for services performed. But when he is to share in both profit and loss, he must be held as a partner. Aspinwall v. Williams, 1 Ohio, 84; Austin v. Williams, 2 Ohio, 61; 13 Ohio, 300; Channel v. Fassett, 16 Ohio, 166; Johnson v. Miller, 16 Ohio, 431.

It is not denied, by plaintiff’s counsel, that in these fur transactions Brewster was a partner with P. Chotean, Jr. & Co., but it is claimed that inasmuch as there had been a settlement between himself and his copartners of the whole business, he was not a necessary party to the suit. It will be seen that this settlement took place long after this suit was commenced. Had it been otherwise, it would have made no difference. Partners are liable for all demands against the firm, and by no arrangement among themselves can any one or more of them be relieved from this obligation. And where a suit is commenced to enforce a partnership demand, it must be in the name of all who were partners at the time the demand accrued. Such is the general rule; hut there are exceptions, as in the case of a dormant partner. This was not, however, the situation of Brewster. On the contrary, he was tho active business man *of the firm. We are clearly of the opinion that Brewster should have been a party plaintiff; that he was interested in the event of the suit. As he was not a party to the record, the plaintiffs would not have had judgment but for the stipulation of counsel, heretofore referred to.

The court of common pleas seem to have supposed that when Brewster was called to the stand, he was interested, and therefore ■ incompetent, and would not permit him to testify until he had executed a release to P. Choteau, Jr. & Co. Such release could not restore his competency. As a partner, he was liable to Raitt, in the event that in the investigation of the case it should bo found there was a balance due to him. A release from Raitt was the ■necessary release to render him competent as a witness.

The next inquiry is as to the force and effect of the stipulation •of counsel before referred to, and what was its true intent and meaning. The defendant, by his counsel, agrees that if it should appear in the trial of the case, that Brewster was a necessary party, he would not, on that account, object to a judgment. This is a favor which he confers upon the plaintiffs. But he expressly reserves the right to object to Brewster as a witness should he be ■offered. As we understand the stipulation, the defendant reserved to himself the same right to object to Brewster that he would have had, had Brewster been a party upon the record, as he should have been. Brewster was an incompetent witness, and his release to Choteau & Co. did not change his situation.

The Supreme Court did not err in holding the decision of the court of common pleas, permitting him to testify, to be erroneous.

The second error assigned in the Supreme Court was, that the court of common pleas erred in admitting to the jury the copy of the letter mentioned in the bill of exceptions of March 29,1848.

Tho facts relative to the admission of this copy, as shown by the record, wore, that during the progress of the trial, and *affcer tho plaintiffs had closed their testimony in chief, they gave notice to the defendant to produce the letter referred to, which he denied having in his possession or ever having received. There was no testimony that the letter ever had been in his possession. Tho only evidence upon the subject, was that such a letter had been deposited in the post-office of Detroit, directed to the defendant. Upon this evidence the copy was received.

The record of the Supreme Court shows that one of the grounds of the reversal of the judgment of the court of common pleas was, that this notice to produce the letter was not a reasonable notice.

In the opinion of this coui’t, there was no error in this. It must be an extraordinary case, where a motion to produce a paper, given during the progress of the trial, can be held to be reasonable. If it should be apparent that the paper was with a party in court, present at the trial, such a notice might be said to be reasonable. But surely where the paper is not in court, and no proof that it was ever in the possession of the party notified, such short notice can not be reasonable.

As to the question whether, by proving that a letter has been deposited in a post-office, directed to any particular person, a copy of that letter can be given in evidence to charge the person to whom it is directed, we do not deem it necessary to say anything further than this : that we should hesitate long before we should be willing to establish any such rule. In giving notice of the protest of a bill or note, all that is necessary is to establish the fact that a letter containing the notice was deposited in a post-office in due time, and properly directed. But the position assumed by plaintiffs’ counsel is, that in all cases where it can be shown that a letter was deposited in a post-office, the person to whom it is directed is to be charged with knowledge of the contents of that ■letter. We are not prepared to admit the correctness of this proposition.

The judgment of the Supreme Court is affirmed, with costs.

       Inglebright v. Hammond, 19 Ohio, 387.

       See Spafiord v. Bradley, in this volume of Reports.


source: Caselaw Access Project

author: Ranney, J.

license: Public Domain

text:
    *Jesse Hildebrand v. Robert A. Fogle.
    "Where a subcontract in writing, for carrying the United States mail, provides for payments to be made quarterly, in the months of May, August, November, and February, it is competent to show, by parol evidence, from the circumstances and situation of the contracting parties, that the contract. had relation to the quarterly divisions of the years fixed in the post-office department, and when such quarters commence and terminate.
    Extrinsic parol evidence is always admissible to give effect to a written instrument by applying it to its proper subject matter, by proving the circumstances under which it was made, thereby enabling the court to put themselves in the place of the parties, with all the information possessed. by them, the better to understand the terms employed in the contract, and to arrive at the intention of the parties.

    Error to the court of common pleas of Morgan county.
    The action in the court of common pleas was commenced September 5, 1850, by Fogle against Hildebrand, in assumpsit, on the following contract:

      “ I, Jesse Hildebrand, do agree and bind myself to pay Robert H. Fogle $750 per annum, payable quarterly, in the months of May, August, November, and February. The same is for carrying the United States mail *from Zanesville to McConnellsville, Ohio, ‘six times a week, on horse, from December 1st to April 1st in each year, until June 30, 1852; and also to carry the mail three times a week in two-horse stages, from the 1st of April to the 1st of December, in .each year, until June 30, 1852. And should I be ordered to carry the mail six times a week in two-horse stages, from the 1st of April to the 1st of December, instead of three times a week, then I agree to pay said Fogle $300 additional pay, payable as above.

      “ Contract to commence on March 3, 1850;
    “ J. Hildebrand.
    “ McConnellsville, Ohio, February 23,1850.”
    The declaration avers that the plaintiff, in pursuance of said agreement, did, on March 3, 1850, commence and carry said mail according to the terms of the contract, etc., and that he continued to carry said mail until September 1, 1850, and was still willing, etc., to continue in the performance of said contract, but that defendant failed to comply on his-part, and refused to pay the plaintiff quarterly, in the months of May, August, November, and February, according to contract.
    The declaration also contains the common counts. Plea, non assumpsit. The cause was tried to a jury in the common pleas, June term, 1851. Yerdict for plaintiff Fogle, $131.12. Motion for new trial, because the verdict was against evidence, and because of the ruling of the court, overruled and judgment on the verdict. Exceptions were duly taken to the ruling of the court on trial, and for overruling motion for new trial.
    The bills of exceptions show that on the trial, “ the plaintiff, for the purpose of sustaining the issue on his part, gave in evidence the contract set out in the declaration, and after giving evidence tending to prove that the plaintiff commenced the performance of the contract on his part and continued to carry the mail until August 30, 1850, and also a letter of ^defendant, made part of the bill of exceptions, rested his case.”
    This letter is dated Marietta, July 21,1850, 'addressed by Hilde brand to D. C. Pinkerton, postmaster at McConnellsville, and is in reply to a letter from Pinkerton to Hildebrand. The letter states, “Fogle is bound to carry the mail until the last day of June, 1852, and if he quits or leaves his contract previous to that time, he will forfeit all that would otherwise be due him. He understands that as well as I do—I explained that to him when he took the contract. For carrying the mail during March he and I would get our pay in May. But if the post-office department sent on the collection orders for me to collect, we would get our pay in April for carrying mail, in March. Well, the orders came and I paid him all and over, for his services up to April 1st, by orders on the postmasters. Well, then, ho and I were neither of us entitled to any pay until August. But the department sent on the orders again in Juty, and I sent him (Fogle) all the orders above McConnellsville, and the balance due for carrying mail up to July 1st. I get from the department in August, when, of course, I pay over to him that month, all that is his due up to July 1st. But until I do n’t pay him in August, he has no reason to complain. If he refuses and docs not carry said mail, get any other person as cheap as you can and I will foot the bill. I will put on a new stage of my own, in a week or so, if he quits. I shall take all expenses out of his wages, and he can not recover from mo one cent more than he has received. Say this to him. If he wants to quit and give up his contract, and will continue on for ton or twelve days, I will take the contract off his hands, aod pay him for his labor up to that time, rather than have any more trouble. Eogle knows that he has been paid sooner than I was bound to pay him; he knows he was overpaid up to the 1st of April, and has received some on the last quarter, but is not entitled to it until August.”
    The bill of exception shows that on trial, “The defendant then gave in evidence a letter from plaintiff to defendant, made *an exhibit, D, and a receipt of the plaintiff acknowledging payment for services up to June 30, 1850, exhibit E. Also, an agreement signed by plaintiff, of oven date with that given in evidence by plaintiff, which agreement signed by plaintiff is made exhibit E. The defendant then offered in evidence, for the purpose of explaining the terms of the above contacts as to the time and manner of payment, depositions, which are made exhibit A. The court permitted the depositions to be read to the jury, and the defendant rested. The cause was submitted to the jury on the charge of the court, who charged the jury, among other things, “ That the depositions read to them could not be received in evidence for the purpose of explaining the contracts between tho parties, the contract of the defendant with the post-office department not being referred to therein ; that said deposition must be disregarded so far as related to that purpose, and so far ruled it out, directing it in that respect to be withdrawn from the jury.”
    Exhibit D.—Letter from Fogle to Hildebrand, dated April 19,1850.
    “Sir: I inclose the amount of money due you. The amount due me is $59.75. I will inclose $15, and will settle the small change when you come up.”
    Exhibit E.—Receipt.
    “ McConnellsville, August 30,1850. Received of J. Hildebrand $114.70 in full, and on settlement, as a balance due me for transporting the U. S. mail between Zanesville and McConnellsville, for the quarter ending June 30, 1850.
    “Robert H. Eo&le.”

      Exhibit F.—Agreement.

      “I, Bobert JEL. Fogle, of McOonnellsville, Ohio, do agree and bind myself to carry the U. S. mail from Zanesville to McOonnellsville, six times a week each, way, on horse, from the 1st of December to April 1st, and in two-horse stages from *April 1st to Decernber 1st, three times a week each' way; for $750 per annum, to be paid me quarterly, in the months of May, August, November, and February, of $187.50 for each quarter, but any amoupt paid me by said Hildebrand, through postmasters or otherwise, is to be deducted from any of the above amounts that would necessarily be due me; and if any fines are imposed on Hildebrand by the post-office department for failures or injured mails at Zanesville or any part of said route above McOonnellsville, the same to be deducted from my pay. And if said Hildebrand is ordered by the post-office department to carry the mail six times per week each way in two-horse stages, from April 1st to December 1st, then I agree and bind myself to carry said mail six times per week for the additional sum of $300 per annum, payable as above. The above contract to close on 30th June, 1852. I agree to receive and deliver at Zanesville the mail in accordance with the schedule ordered by the post-office department. Contract to commence March 3, 1850. First payment to be for the month of March.
    “ R. H. Fogle.

      “ McOonnellsville, February 23, 1850.”
    Exhibit A.—Depositions.
    Samuel M. Edwards, one of the clerks of the Auditor’s office for the post-office department, deposes, June 4, 1851: “ Hildebi'and is contractor for transporting the mail on route No. 2,900, from Zanesville to Marietta, commencing March 3, 1850', ending June 30,1852, at the annual compensation of $1,900, payable in quarter-yearly payments, in the months of May, August, November, and February, in each year. The payments under such contract, and all others of a similar character, never fall due before the months named, and are seldom made before.”
    Question.—Please state whether, under this contract, the first payment to be made in May is to be made for a whole quarter, or only for the balance of the quarter ending March 31,1850.

      * Answer.—The first payment under said contract, and all similar con tracts, was and is uniformly made for the fraction of the quarter only, and in the present case the defendantreeeived credit on the boobs of the office for the sum of $153.06, being for service from March 3, 1850, to the 31st of same month—twenty-nine days—at the rate of $475 per quarter. “In all contracts with the United States for carrying the mail, the quarters end regularly on the last days of March, June, September, and December of each year, without reference to the time at which such contracts commence.”
    Cranston Laurie, a clerb in the department, proves Hildebrand’s contract. The contract of Hildebrand with the United States, proven and in evidence with the deposition, is dated and made January 29, 1850, and binds him to carry the mail between Zanesville and Marietta for $1,900 per year, commencing March 3,1850, ending June 30, 1852. Hildebrand is to be paid $1,900 a year, to-wit: “Quarterly, in the months of May, August, November, and February.”
    This writ of error is prosecuted to reverse said judgment, and the action of the court below is claimed to be erroneous.
    Goddard, Covet, and Robinson, for plaintiff in error :
    The great question in the ease in the common pleas was, whether evidence could be received to show that the written contract between Fogle and Hildebrand was to be interpreted in such a manner as to corrrespond with the contract between the government and Hildebrand, there being no express stipulation that it should be.
    It was the duty of the court to decide the question affirmatively for Hildebrand, or to leave it as a question of fact for the jury. The court did neither.
    The suit was brought September 5,1850. Fogle had carried the mail from March 3 to August 30, 1850, at $750 per annum, and had earned $372.25 ; but when did Hildebrand violate any duty in refusing to pay ?
    *0n the 31st March, Fogle had earned, as he says in his letter of 17th April, $59.75. When was Hildebrand bound to pay it ? The contract says in May. On June 30, 1850, he earned a full quarter’s pay, $187.50. When was Hildebrand bound to pay it? The contract says in August; and we find, accordingly, Fogle’s receipt dated August 30, 1850, for the balance due him for the quarter ending June 30, 1850.
    Had he continued to perform his work under his contract up to September 30,1850, he would have earned $187.50 more, and would have been entitled to his pay in November following. He chose to sue September 5th. Surely he can not recover.
    It .may be inferred from the charge of the court, that in an action upon a written contract nothing can be referred to in evidence, to explain the intention of the parties, unless the written contract itself refer to it in terms.
    This is not law. 13 Pet. 89; Bellinger v. Kitts, 6 Barb. (N Y.) 273; Knight v. New England Worsted Co., 2 Cush. (Mass.) 271.
    Fogle can not recover on the common counts. There is no evidence that the contract was rescinded.
    Parish & Evans, for defendant in error :
    There is no ambiguity arising on the face of the agreement declared on, and there can be no resort to other evidence to explain it. But the contract was mutually rescinded, and the plaintiff was entitled to recover on the common counts.
    The deposition of Edwards proves a usage in the department to consider and treat the last days of the months of March, June, September, and December, as the end of each quarter for the year, respectively, and that the pay for the quarters, respectively, was not considered due until the months of May, August, November, and February, respectively; that this usage applied to Hildebrand’s contract with the department, as well as all others of that class, and that applying the usage to Hildebrand, he was only paid in May, 1850, so much *of the quarter-ending the last of March, as had expired after March 3d, making $153.06, instead of $475, or one-fourth of. the yearly payment.
    The proposition was to show that the quarterly paytnent of the sum of $750 was not to be made at the time specified in the contract, but sixty days after. This was not explaining but altering the contract.
    This usage of the department could not affect the plaintiff below, unless it was shown that he knew of it at the time he made his subcontract. 13 Pet. 92, 96.

       In what oases parol evidence is admissible to explain, vary, or contradict written instruments, see Wilcox’s Dig. Evidence, 249, ch. 6—Common Carriers, 141—Appendix, Evidence, 62; Painter v. Painter et al. 18 Ohio, 247; Rohrer v. Morningstar et al., 18 Ohio, 579; Inglebrigbt v. Hammond, 19 Ohio, 344; Steinbarger’s Adm’r v. Steinbarger, 19 Ohio, 106; Turney v. Yeoman, 16 Ohio, 24; Cockerell v. Insurance Co., 16 Ohio, 148; Bodkins v. Taylor, 14 Ohio, 489; Worth v. Wilson, Wright’s S. C. 162; State v. Buchanan, Wright, 233; Hunt’s Lessee v. McHenry et al., Wright, 599; Hammer v. Neville, Wright, 169; Wells v. Benefield, Wright, 201 (but see Hill v. King, 4 Ohio, 135); Edwards v. Richards, Wright, 597; Lawrence v. McGregor, Wright, 193 ; Wood v. Perry, Wright, 240; Emrie v. Gilbert, Wright, 764; Fallis v. Griffith, Wright, 303 ; Hare v. Harrington, Wright, 290; State v. Perry, Wright, 662; Swisher v. Williams, Wright, 754; Humbert v. Methodist Church, Wright, 213; Kline v. Prindle, Wright, 414; Davis v. Coffield, 6 West. Law Journal, 318; Wales v. Bates. 3 West. Law Journal, 263; Golden v. McConnell, 1 West. Law Journal, 397; Rice v. Lindsay, 1 West. Law Journal, 553; 1 Greenl. Ev., secs. 292, 295.

   Ranney, J.

The action in the court below was brought by Fugle against Hildebrand upon á written contract entered inte between the parties on February 23,1850, for carrying the United States mail from Zanesville to McConnellsville, from March 3,1850, until June 30, 1852.' For this service Hildebrand agreed to pay Fogle the sum of $750 per annum, “payable quarterly, in the months of May, August, November and February,” with the further sum of $300, in case certain additional services were required by the post-office department of Hildebrand. By an agreement of the same date, signed by Fogle and delivered to Hildebrand, the former agreed to carry the mail, as stipulated in the other contract, in accordance with the schedule ordered by the post-office department, and to perform the additional service for said sum of $300, provided the same was required of Hildebrand. He agreed to account for all such money as should bo paid him through postmasters, and deduct it from the sums falling due to him from time to time. If any fines were imposed on Hildebrand by the post-office department, for failures or injured mails on that part of the route, the same was to be deducted from the pay of Fogle. It was agreed that the' contract should commence on March 3,1850, and that the first payment should be for the month of March. On the 19th of April following, Fogle, in a letter to Hildebrand, stated the sum due him at $59.75, *which he had received from postmasters, together with a, further sum which ho forwarded to Hildebrand. This, it will be seen, was the exact sum duo for the month of March, as mentioned in the contract. On August 30,1850, he receipted to Hildebrand for $114.70, which is stated to be “ in full and on settlement as a balance due me for transporting the United States mail between Zanesville and Mc-Connellsville, for the quarter ending June 30, 1850.

He continue! to carry the mail until August 30, 1850, and on September 5th commenced this suit, to recover for the service commencing on July 1st and ending on August 30th. The position of Hildebrand was that the quarter did not end until September 30th, and that the money did not become due for that quarter’s service until the month of November. He denied, therefore, that Fogle had complied with the contract, on his part, or in any event that any money was due him at the commencement of the suit.

To fortify himself in this construction of the contract, he gave in evidence a sworn copy of his own contract with the post-office department, by which it appeared that on January 29,1850, he had contracted to carry the mail from Marietta to Zanesville, the contract with Fogle covering a part of the same route, for the same period of time as specified in the contract with Fogle, for the sum •of §1,900 per annum, payable quarterly, in the months of May, August, November, and February. To this contract was appended the schedule of arrivals and departures referred to in the contract with Fogle. He also proved by a deposition of a clerk in the department, that the regular post-office quarters of the year end on the last days of March, June, September, and December, without any reference to the time at which contracts commence; that under the contract with the plaintiff in error and all others of like character, the payments never fall due until the months named after the expiration of the quarter, and are seldom made before; and that where a fraction of a ^quarter only, intervenes between the commencement of a contract and the close of the quarter, the payment is only made for such fraction, and was so done in the present instance. The court then charged the jury that this testimony could not be received in evidence for the purpose of explaining the contract between the parties, the contract of the defendant with the post-office department not being referred to in the contract with Fogle; that it must be disregarded so far as related to that purpose, and so far ruled it out and directed it to be withdrawn from the consideration of the jury. To this opinion the plaintiff in error excepted, and the jury having returned a verdict for the full amount claimed, he moved for a new trial, which being overruled, he also excepted to that, and now seeks a reversal of the judgment for what he claims were errors in the said rulings of the court.

Did the court err in thus rejecting the evidence offered, and in ■overruling the motion for a new trial, are the questions presented for our consideration. The reason given by the court for rejecting the evidence is hardly correct in point of fact. It is true that the contract of Hildebrand with the department is not mentioned in so many words, in his contract with Foglq, but it is also true that there are such allusions in the latter contract as leave no ■doubt whatever that Fogle did understand that such a contract existed. It acknowledges the obligation of Hildebrand to carry the mail in accordance with a schedule from the department as to arrivals and departures, and his liability to be fined for failures, etc., and his obligation to do additional service, if required; and all these obligations Fogle took upon himself. Whence arose all these obligations'/ They could arise by law only in consequence ■of a contract with the department; and it seems to be shutting our eyes to the most obvious light when we refuse to look at the matter as the parties themselves saw it. The subject matter of this contract was the transportation of the United States mail. It does not attempt to give a full description of everything to which it alludes. It employs terms with reference to the established usages. and regulations of the post - office ^department. Among these is the term “ quarters and the question is, what does that term mean as applicable to this branch of the public service? and can a court and jury be permitted, by evidence, to try and find out? We think they can, without, in the least, infringing upon the wise and well-settled rule, that a written instrument can not be varied or contradicted by parol evidence. These parties may be fairly presumed to have understood the matter about which they were contracting. But the same thing can not be said of every court and jury that may be called on to interpret their contoact. To enable the court and jury to be as wise as the parties, and so to arrive at and give application to the words they have used, and thus carry out their intentions, the law permits them to hear a full description, from evidence, of the subject matter of the contract, and of the circumstances that surrounded the parties at the time it was made; and to learn what were the motives and inducements that led to the contract, and the object to be attained by it; or, as expressed by the court in the case of Bellinger v. Kitts, 6 Barb. 273: “In expounding a written instrument, the attendant and surrounding circumstances are competent evidence for the purpose of placing the court in the same situation, and giving it the same advantages for construing the instrument as are possessed by the parties who execute it.” The same rule is laid down by Mr. Greenleaf, in his work on Evidence (vol. 1, sec. 286), and enforced by a great variety of illustrations. The object or tendency of this evidence is not to contradict or vary tho terms of the instrument, but to enable the court to come to the language employed, with an enlightened understanding of the subject matter in reference to which it has been used.

This whole doctrine is very ably considered in the case of Bradley v. Washington, Alexandria and Georgetown Steam Packet Company, 13 Pet. 89, and the rule carried much further than we are called upon to go in the ease at bar. The plaintiff in error had,' by an agreement in writing, hired a steamboat to be put on the

route from Washington to Potomac *Creek, until another steamboat, then building, should be prepared, and be put on the route.

The plaintiff in error was the contractor for carrying the United States mail, which was carried between those points by steamboat, except in winter, when the navigation of the river was interruptéd by ice, when the mail was carried by land. The steamboat so hired was employed in carrying the mail, but the ice interrupted its use for a considerable time, and the owners sued for the hire of the boat during the time it was so interrupted.

The circuit court refused to allow parol evidence to be given to show the purpose for which the steamboat was employed, and to explain the meaning of the terms used in the contract, and of other matters conducing to show the meaning of the contract. The Supreme Court held that the evidence was admissible— that extrinsic parol evidence is admissible to give effect to a written instrument, by applying it to its proper subject matter, by proving the circumstances under which it was made, whenever, without the aid of such evidence, the application could not be made in the particular case.

Mr. Justice Barbour, in delivering the opinion of the court, after a critical review of the authorities, says : “ All the cases which we have cited, in which extrinsic evidence has been received, and those which we have sujoposed, in which we think that it would be admissible, proceed on one principle only, and can only be justified upon that principle. And that is this: that the rule which admits extrinsic evidence, for the purpose of applying a written contract to its proper subject matter, extends beyond the mere designations of the thing on, which the contract operates, and embraces within its scope the circumstances under which the contract concerning that thing was made, when, without the aid of such extrinsic evidence, such application of the written contract to its proper subject matter could not be made.”

And the court held, that the extrinsic circumstances, that Bradley was a contractor with the government for carrying the *mail, and that the steamboat was to be engaged in that business, might be shown, although they were not alluded to in the written contract, and when shown would deprive the owners of the boat of the right to recover for such time as the boat could not be used on account of ice. In the case under consideration, no attempt is made to add anything to the written contract. The proof is only offered to give application to the terms used in it, by showing, from the circumstances and situation of the parties, in what sense they used them; and we think for this purpose the evidence was clearly admissible, and taken in connection with the written contract, or rather the written contract thus applied by it, has reference to the established quarters of the post-office department, in fixing the time of payment, and not to the quarterly divisions of the year from the date of the contract. Indeed, no other construction can, it seems to us, reasonably be put upon the contract, without the aid of this extrinsic evidence, when made in connection with the written evidence that the plaintiff below has furnished, as to his understanding of ita true construction. The first payment, after the contract was entered into, was to be made in May, and it expressly provides that this shall be for the month of March. Why this provision? Because the month of March closed the regular post-office quarter. He was paid accordingly. On the 30th of August he gives a receipt in full for the quarter ending the 30th of Juno. This was the second payment to be made by the terms of the contract, and was made at the very time stipulated in the contract.

Ho here confesses, under his own hand, that the term “ quarterly,” used in the contract, refers to popt-office quarters. The post-office quarter did end at that time; but a quarter from the date of entering upon his contract, would have ended on the 3d of June.

Again, if the time is to be computed from the commencement of the contract, the termination of the quarters will not fall in either of the months named in the contract, and would involve the injustice of compelling Hildebrand to pay Fogle for his ^services before they were performed, while, for the same service, ho was obliged to wait upon the government until two months after they were performed.

Thus have the parties themselves given a practical construction to the terms of this contract, not contradictory to the language used in it, but in strict accordance therewith, and have applied its terms of payment to post office quarters. To show what these quarters were, as well as to show the circumstances and situation of the contracting parties, in respect to the subject matter of the contract, we think the evidence offered was admissible, and should have been permitted to go to the jury; and for rejecting it, as well as in overruling the motion for a now trial, a majority of this court are of opinion that the court of common pleas erred. Upon the question raised as to the right of the plaintiff below to recover upon the evidence given by him, attempting to establish a mutual rescission of the contract, we express no opinion.

The plaintiff in error having been deprived of the'benefit of legal evidence, which he offered, compels us to reverse the judgment, in order that he may avail himself of it upon a new trial.

Caldwell, J., dissented.


author: Spalding, J.

text:
    *Matthew Wilson, Jr. v. Benjamin F. Leslie.
    A mortgage of personal property under the statute of 1846 is “absolutely void” as to other creditors of the mortgagor who assert their rights against the property after its execution, and before it is deposited with the recorder or township clerk.
    Such a mortgage is not void in toto, by reason of an omission to make the deposit “ forthwith,” but becomes effective whenever it is deposited. And in case of a temporary withdrawal of the paper from the recorder’s office, the mortgagee will not be prejudiced by a levy made at the instance of another creditor.
    Error to the court of common pleas of Muskingum county.
    The action was replevin, brought by Wilson, the plaintiff below, who is also plaintiff in error, against Leslie, to recover the possession of the following goods and chattels: One carriage with leather extension top, trimmed with red plush; one carriage with standing top; one dapple gray mare, called Sarah Thompson; one light gray mare, called Betsey Baker; two sorrel mares matched.”
    The bill of exceptions is as follows:
    “Upon the trial of this cause, in the court of common pleas, the plaintiff gave in evidence a mortgage of chattels from John Clements to him, dated March 12, 1851, and deposited with the recorder of Muskingum county (his office being kept in the township where the mortgagor and mortgagee resided) March 20, 1851, a copy of which mortgage, with the indorsement by the recorder, is attached hereto, marked ‘A.’ The plaintiff also gave in evidence the notes mentioned in the said mortgage, copies of which are hereto annexed, marked ‘B;’ and gave evidence tending to show that the debts therein mentioned wore justly due to him. Ho also proved that about the hour of three p. m. of April 1, 1851, the defendant, as sheriff of said county, levied on the chattels mentioned in the declaration, by virtue of an execution then in his hands, in favor of Kennett, McKee & Co., and against said Clements, which, with interest and cost, amounted to the verdict ^afterward rendered herein. In the further progress of the cause, it was proved that on April 1, 1851, this court then being in session, about ten o’clock a. m. the plaintiff, without the knowledge or advice of the attorney hereinafter referred to, went to the recorder’s office, which is in an upper room of the west wing of the building in which the court sits, and asked for the mortgago, saying that he wanted an alteration made therein; that the recorder handed it to him, and the plaintiff took it to the court-i’oom to a lawyer who had before that time been his attorney in the matter of securing his debt from Clements, and told him that the ‘bay horse, Baldfaco,’ mentioned in the mortgage, had some disease which he thought might injure the others, and he had had him sold, and wished to have inserted in lieu thereof,, one bay mare, and he desired his advice whether such an alteration of the instrument might lawfully be made, with the assent of Clements, The attorney advised that it might be done, whereupon the plaintiff went to Clements, and the instrument was altered with the assent of the parties to it, by drawing a pen through tho words ‘bay horse, Baldface ’ and interlining in lieu thereof, the words ‘one bay mare.’ This alteration was made before tho levy, but the mortgage was not returned to the recorder’s office, until four p. m. of that day and after the levy. Neither tho bay horse, ‘Baldfaco,’ nor the bay mare, was levied upon.”
    It was further proved that on Saturday, March 30, 1851, the same attorney, having in his hands a warrant of attorney given by Clements to the said firm of Kennett, McKee & Co., made preparations by drawing all the necessary pleadings, to take judgment against said Clements the following Tuesday, being the first day of the then next, term of the court of common pleas for said county, and also to file a bill in chancery against the plaintiff and Clements, impeaching the mortgage for fraud, and praying, if held valid, the property might be sold, and the surplus, after satisfying Wilson’s debt applied to the claim of Kennett, McKee
      & Go.; that for the purpose of preparing said bill in chancery, he went that ^Saturday to the recorder’s office and copied from said mortgage a list of the articles, and partially wrote his bill the following Tuesday morning, and on the same afternoon he concluded to insert the entire mortgage in his bill, and after his interview with the plaintiff in the court-house, went to the recorder’s office to copy said mortgage, and learned that the mortgage had not yet been returned; that he could as well have written his bill in chancery without seeing said mortgage again, as with it; that he then took his judgment, and deemed it his duty to issue execution in favor of said Kennett, McKee & Co., which he did, and which was levied as before set forth. It was also in evidence that the plaintiff knew before March 30, 1851, that the said attorney had said claim of Kennett, McKee & Co. against Clements in his hands for collection; and it was further proved that the said attorney intended, on Saturday, March 29, 1851, to enter up said judgment the following Tuesday, though he did not intend levying on the property in question, until he discovered that the mortgage had not been returned to the recorder’s office as above stated.
    It was further proved that the property mortgaged, and now in question, was not delivered to Wilson, but remained with Clements until the said levy was made.
    The court charged the jury, “first, that the mortgage was void because of the lapse of time between its execution and deposit with the recorder; and, second, that the levy made while the mortgage was temporarily out of the recorder’s office, would hold the property, notwithstanding notice to the attorney, unless the jury were satisfied that the attorney assented to its being out; and that they were to regard these instructions as governing the case, although they might be satisfied that the debts mentioned in the mortgage wei'e justly and fairly due from Clements to the plaintiff. To which opinions of the court the .plaintiff excepts, and prays the court to sign and seal this his bill of exceptions, and that it be made a part of -the record, which is accordingly done.”
    *The mortgage referred to reads as follows:
    “Know ail men by these presents, that I, John Clements, for and in consideration of the sum of $1,000, to me paid by Matthew Wilson, Jr., have bargained and sold, and do hereby sell and convey unto the said Matthew Wilson, Jr., the following described personal property, to wit: one (1) carriage, with leather extension top, trimmed with red plush; one (1) sulky; two (2) sleighs; one (1) carriage with standing top ; one (1) brown buggy with red. head lining; one (1) black buggy, trimmed with figured damask; three (3) buggies in course of construction; one (1) two-horse wagon; one (1) buggy-pole; one (1) double-seated buggy without top; two (2) pair extra shafts; one (1) dapple-gray mare (Sarah Thompson) ; one (1) light grey mare (Betsey Baker) • one gray horse (Gray Eagle); one (1) bay mare (Sarah McBride) ; one (1) bay pacing mare (Sarah Bladen) ; one (1) bay horse (Col. Morgan) ; one (1) black mare (Polly Hopkins); one (1) bay mare (Sarah Stiner) ; one (1) sorrel mare (Fanny Morgan) ; one (1) pair sorrel mares, matched; one (1) bay mare; twelve (12) sets of harness; two (2) buffalo robes; nine (9) horse-blankets; four (4) saddles; five (5) bridles; one (1) side-saddle.
    “ Provided always, and these presents are upon this express consideration, that whereas said John Clements is indebted to said Matthew Wilson, Jr., in the sum of $1,312, by three several promissory notes—one for the sum of $700, dated February 1.1849; one for the sum of $300, December Í, 1846; and one for the sum of $290, payable one day after date.
    “Now, therefore, when the said John .Clements shall pay said notes and the interest thereon, then this conveyance is to be void; until then to remain in full force and virtue.
    “ It is understood that said Wilson does not extend the time of .payment.
    *“ Witness my hand and seal, this 12th day of March, 1851.
    “John Clements, [seal.]
    “Attest: William Wilson.”
    The notes, copies of which are made exhibits to the bill of exceptions, are described in the foregoing mortgage.
    On the back of this instrument, the mortgage, is the following indorsement:
    “ Entered March 20, 1851, at 10|- o’clock.”
    The cause was tried to the jury, at the July term, 1851, of the court of common pleas for Muskingum county; and under charge of the judge, the jury returned a verdict for defendant, and assessed his damages at $215.56, for which judgment was entered.
    The writ of error is brought to reverse this judgment.

      Goddard & Eastman, for plaintiff in error,
    cited Sanger v. Eastwood, 19 Wend. 514.
    A. P. Blockson, for defendant,
    cited Smith v. Acker, 23 Wend. 653; Fitch v. Humphrey, 1 Denio, 163.
   Spalding, J.

The mortgage from Clements to Wilson was executed on March 12, 1851, and was deposited in the office of the recorder of the county on the 20th of the same month, a period of seven days having intervened.

The court below charged the jury that the mortgage was void, because of this lapse of time between the execution and deposit of the instrument. In this we think the coui’t erred. The statute of Ohio, of February 24, 1846, provides “that every mortgage or conveyance intended to operate as a mortgage of goods and chattels, hereafter made, which shall not be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void, as against the creditors of the mortgagor, *and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited as directed in the succeeding section of this act.”

A fair construction of this statute will not make the instrument inoperative as botween the parties (mortgagor and mortgagee), although it be not forthwith deposited with the recorder. It will not be permitted to stand in the way of an execution issued at the-instance of a judgment credited', until after it shall have been deposited in the proper office. And in certain cases, undoubtedly, an. execution may hold the chattels mortgaged, even after the instrument has been placed on file in the office; as where the delay has been so great as to taint the transaction with fraud.

But the mere fact that the mortgagee omitted, for several days- or several weeks, to deposit his mortgage deed with the clerk of the township or recorder of the county, as the case might require, would by, no means render his security void. It would not be void as against the mortgagor, if not filed in the office at all. It would not be void as against that class of creditors who were equally remiss with the mortgagee, and took no steps to fasten upon the property for the payment of their debts. Until placed in the proper office, a mortgage of chattels, in our state, would be void as against other creditors of the mortgagor and subsequent purchasers and mortgagees, whose rights then attach. But when filed with the clerk or recorder, the instrument becomes valid and effective against all men except those whose rights have thus previously attached.

The court below charged the jury that the levy made while the mortgage was temporarily out of the recorder’s office, would hold the property, notwithstanding notice to the attorney, unless the jury were satisfied that the attorney assented to its being out. There is great and manifest error in this ruling of the court. The facts, as disclosed by the bill of exceptions, were as follows:

The attorney who had been consulted by Wilson, in the matter *of securing his debt by means of this mortgage, had in his hands for collection a claim in favor of Kennett, McKee & Co., against Clements, with a warrant of attorney to confess judgment.

On Tuesday, April 1, 1851, and on the first day of the term of the court of common pleas, at about ten o’clock a. m., Wilson took his mortgage from the office of the recorder, where it had been deposited since the 20th of March, to the court-room, in the same building, for the purpose of consulting this same attorney as to the propriety of striking out one of the horses mentioned in the instrument, which had become diseased, and inserting a certain bay mare in lieu thereof. The attorney advised that it might be done, with the assent of Clements, and while Wilson was absent procuring this amendment to be made, his legal adviser “ deemed it his duty” to take judgment in favor of Kennett, McKee & Co., and forthwith to take out execution, and have the same levied on a portion of the property which he knew was covered by the mortgage. At four o’clock in the afternoon, the mortgage was taken back to the office of the recorder, but “ it was too late.” The trap had been sprung.

To designate this as sharp practice on the part of the attornoy) will be treating his conduct with sufficient delicacy. To hold that a levy obtained through such instrumentality, should override a bona fide mortgage, would be preposterous. The court of common pleas ought not to sanction snch an abuse of its process.

The temporary withdrawal of the paper could not impair its force, if done with intent to return it. In contemplation of law, it was -“on file in the office,” although out of the recorder’s room. The assent of the attorney to its withdrawal was quite immaterial.

The judgment of the court of common pleas is reversed, with costs.


text:
    *Joshua Hambleton v. Joseph W. Dempsey & Co.
    A special verdict is irregular and insufficient unless it find tbe truth of the facts. It will not do to refer the evidence to the court and ask their judgment upon it.

    If a board of equalization add to the valuation returned by the assessor, the law will presume it to be done upon sufficient evidence, unless the contrary be made to appear by the party aggrieved.
    The law gives notice that the board will meet at a time and place certain. No special notice to the tax-payer is requisite.

    Error to the common pleas of Lawrence county.
    The action was assumpsit, brought by Dempsey & Co., to recover money paid by them to Hambleton, as treasurer of Lawrence county, upon a tax demanded by him, and denied by them to be legal. The money was paid over to the treasurer under protest.
    The bill of exceptions shows the following state of facts: The plaintiffs below being called on by the assessor of the township, in the spring of 1850, made their statement of taxable property in the usual form, which was sworn to and returned by the assessor to the county auditor. That, without any actual notice to said plaintiffs, the county board of equalization proceeded to add to their personal property the sum of $20,224, as follows:
    To non-enumerated articles.............................. $3,000
    To merchants’ stock....................................... 4,800
    To manufacturers’ stock............................................... 9,054
    To moneys and credits................................................. 3,074
    To their cattle............................................................ 296
    Total.................................................................. $20,224

      *The tax was assessed on the sum thus superadded, as well as upon the amount sworn to, and returned by the assessor. The plaintiffs below paid these taxes to the treasurer, protesting that they were illegal, so far as said additions were concerned, and giving him notice that they should resort to legal measures to recover back their money.
    The cause was submitted to a jury at the May term, 1851, who returned into court their verdict, as follows :

      “ We, the jury, find that in case the court, upon the foregoing-statement of facts, should be of opinion that the law of the ease was with the plaintiffs, that then we find for the plaintiffs, and ■that the said defendant did assume and promise, etc., and we assess the damages of the said plaintiffs at $185.65. But in case that the court, upon the foregoing statement of facts, should be of opinion that the law of the case is with the defendant, then we,, the jury, find for the defendant; and that the said defendant did not assume and promise, in manner and form, as the said plaintiffs hath above thereof alleged against him.” And thereupon the court took the matter under advisement to the term of Sejitember, 1851, and then declared its opinion that the said plaintiffs were entitled to recover, and rendered judgment upon such special-finding of facts, in favor of said plaintiffs and against said defendant below, for the sum of $185.65, and interest from the first day of last term. To which opinion of the court rendering said judgment, etc., the defendant excepted.
    The foregoing “ statement of facts,” referred to by the jury, seems to have been the items of testimony, written and oral, produced on the trial of the parties respectively, but the facts are not embodied in the verdict, and are only found in the bill of exceptions.
    This writ of error is prosecuted to reverse the judgment of the-common pleas, and errors are duly assigned.
    Nigh & Tract, for plaintiff in error:
    *On the trial, objections were taken to the competency and relevancy of each item of evidence. In receiving the tax, the defendant below performed only his official duty.
    We insist that the county board of equalization, at its April session, 1850, was authorized by law to add to the sworn statements returned by the assessor. Sec. 4 of the act amendatory of' the- general tax law, 45 Ohio L. 61, passed February 8, 1847. Act of February 22, 1848, vol. 46 Ohio L. 69; sec. 14, p. 72.
    Was it necessary to give notice to the plaintiffs below of the action of the board of equalization in order to render tho action of the board valid. We claim not. The law does not require notico. Section 14 of the act of 1847, authorizing the county auditor, in certain cases, to correct the return of the assessor, requires notice to parties in interest. Not so with the county board of equalization, when acting under section 4 of the act.
    The statute of Massachusetts, in express terms, requires notice, and in that respect differs from our statute, which provides no notice nor any officer to give notice. 2’ Mass. 118. Tho uniform, practice in all the counties has been for the board to act without notice.
    Mr. Nash, for defendant in error, made the following points :
    I. He claimed that the board of equalization did not possess tho power to make these additions. Section 4 of tho act of 1847, 45 Ohio Stat. 61, might have designed to give such a power; but sections 1 and 14 of the act of 1848,46 Ohio Stat. 69,72, modify tho former acts, and limit the power to hearing complaints and equalizing valuations. The reference to section 4 of the act of 1817 is limited to the proviso which forbids a reduction of the sum total. Section 16 of the act of 1847 shows that the auditor is the one empowered to act in cases of omissions in sworn lists, and for this purpose he is authorized to swear witnesses, and required to notify the *parly of his intention to make the inquiry. Here is an ample remedy to meet such cases ; why then apply another one not at all adapted to obtain the ends of justice—a board, proceeding, as is claimed, ex parte, and without power to compel .testimony under oath ?
    II. But, admitting the board have the power, how shall this power be exercised? Ex parte and without notice? The power is a quasi judicial power; the board must inquire and decide upon testimony, and their decision affects the interests of others. In such a case, he claimed that the principles’of eternal justice require that the party shall have notice of any inquiry and decision which are to increase his taxes, as in this case, $180, and write him down perjured in swearing to his list. Such are the authorities : 2 Mass. 170 ; 4 Ib. 627; 2 Ib. 489 ; 3 Ib. 188; 15 Johns. 537; 14 Conn. 72; 2 Hornington (N. Y.), 337; 4 N. H. 127. This last

      case decides that the tax is void, unless it is shown on trial that the facts justified the addition. No such evidence was offered in this case. He claimed, however, that the inquiry under our statute should be made by the board after notice given. This would bo less expensive than a suit at law. Either way, this case is a direct adjudication in favor of the decision below. Tide 8 N. H. 166; 7 Ib. 113 ; 2 Ib. 236; 15 Vt. 640.
    III. The tax being void, can this action be maintained against the collector? He claimed that the treasurer was like an agent from whom, money paid to him for his principal, might be recovered back, if the agent had not paid it over, or had been notified not to pay it over, as was done in this case. Boston and Sandwich Glass Co. v. Boston, 4 Met. 181; Amesburg W. & C. M. Co. v. Amesburg, 17 Mass. 461; Perry v. Dover, 12 Pick. 206 ; 4 Pick 361; 6 Conn. 223; 12 Pick. 7; 10 Conn. 127. This rule has been applied to collectors. Elliott v. Swartwout, 10 Pet. 137. This case is directly in point. The same is admitted to be law in Lewis v. Tate, 10 Mo. 650.
    IY. This is not a voluntary payment. The party had a *right to pay under protest, and then sue to test the legality of the tax. 4 Met. 181; 12 Pick. 7; 6 Conn. 223; 10 Ib. 227; 14 Ib. 72 ; 9 N. H. 524. A payment to a collector of taxes, of taxes claimed by>him in virtue of a tax duplicate, is not a voluntary but a compulsory payment.

       See Lessee of Blake v. Lewis Davis et al., reported in this volume, as to special verdict. (

       For construction of the act for levying taxes on all property in this state, according to its true value, passed March 2, 1846, and the amendatory acts, see Loring et al. v. The State, 16 Ohio, 590; Wetmore v. The State, 18 Ib. 11; Cincinnati College v. The State, 19 Ib. 110.

   Spalding, J.

"We have no hesitation in reversing the judgment of the court of common pleas, and for two reasons:

1. The verdict neither finds the issue nor- the facts upon which the court may pronounce the finding as a conclusion of law. The statute provides that “ no jury shall, in any case, be compelled to give in a general verdict, so that they find a special verdict, and show the truth of the facts, and require the aid of the court.”

Hero they have found no one fact to be true, bu| have simply referred the court to the evidence, and told them if upon that evidence they are of opinion the law of the case is with the plaintiff's, then the jury find for the plaintiffs, etc. It is the game of hide-and-go-seek ” between the court and jury. The evidence is laid before the jury, and they are told to find the facts. The jury la^ the same evidence before the court, and tell them to find the facts and law together. Such practice as this we can not sanction. The parties are disposed to treat this as a special verdict. One of the best special pleaders in this or any other country, has laid down the ruje governing this subject, in this wise: “If in a special verdict, the jury find only the evidence of a material fact, instead of the fact itself, or otherwise omit to find, upon such a fact, either way, no judgment can be rendered upon the finding for either party, since a matter of fact essential to the determination of the cause is left unascertained by the verdict.” Crould’s Pleading, ch. 10, sec. 62

2. We see no reason to find fault with the action of the board of equalization, in the cases of Dempsey & Co., and of Dempsey, Rogers and Ellison, who compose said firm of Dempsey & Co., of the date of April 23, 1850.

*By section 14 of the amendatory tax law, passed February 8, 1847, the board has power “to add to or deduct from the valuation of the personal property, or moneys, or credits of any person returned by the assessor, upon such evidence as shall be satisfactory to said board, whether said return be made upon the oath of such person or upon the valuation of the assessor.”

By the amendatory act passed February 22, 1848, section 14, it is provided that “the annual board of equalization, constituted by section 1, shall at the same time hear complaints and equalize the assessments of all personal property, moneys, and credits, new entries, and new structures, returned for the current year by the assessor, being governed by the provisions of section 4 of the amendatory tax law, passed February 8, 1847.”

We do not hesitate to say that the power “to add to or deduct from the valuation of the personal property,” is committed to the board created by the act of 1848, as fully as to that under the act of 1847. How otherwise could they “ equalize the assessment of all personal property?”

It is objected that the tax-payer had no notice of the action of the board, and that it nowhere appears affirmatively, that they" acted upon evidence of an undervaluation of the property. The law fixes the time of meeting and the place, to wit, the second Monday in April, annually, and at the auditor’s office. This is notice to every citizen who has property, real or personal, returned for taxation.

As to the arbitrary proceedings of the board, in adding to the valuation put upon their personal property by the defendants in error, wo feci bound to presume in favor of a proper discharge of their duty by these officers, and as the law authorizes them to act “upon such evidence as shall be satisfactory to them,” in the absence of any showing to the contrary, the conclusion of law is, that they acted upon sufficient evidence.

The judgment ol the common picas will be reversed, with costs.