author: Crew, J.

text:
    The State of Ohio ex rel. Montgomery v. Rogers et al.

      'Salaries of county surveyors — Act of April 25,1904, empowering common pleas judges — To fix said salaries — Repugnant to section 20 of article 2 of constitution — Constitutional law.

    The act of April 25, 1904 (97 O. L., 313, 314), entitled “An act fixing the salaries of the county surveyors in various counties of the state,” is repugnant to section 20, article 2, of the constitution of Ohio, because the power conferred and the duty imposed by said act upon the judges of the court of common pleas, to fix the salaries or compensation of county surveyors, is purely a legislative power and duty and cannot be delegated. Said act is therefore unconstitutional and void.
    (No. 9092
    Decided January 3, 1905).

      In Mandamus.
    This is an action in mandamus commenced originally in this court. The averments and prayer of relator’s petition are as follows:
    “The relator says that he is an elector, citizen and taxpayer of, and the owner in fee simple of real estate in the county of Mahoning and state of Ohio.
    “That the defendants, Disney Rogers, George F. Robinson and E. E. Roberts, are the duly elected, qualified and acting judges of the court of common pleas of the county of Mahoning and state of Ohio.
    “The relator further says that he is the duly elected, qualified and acting surveyor of Mahoning county and state of Ohio. That on the twenty-seventh day of May, 1904, he requested said defendants to make an allowance and fix the amount of compensation of himself, as county surveyor and fix an aggregate sum for his assistants from May 1, 1904, to January 1,1905, as provided by an act known as House Bill, No. 292, fixing the salaries of the-county surveyors in various counties of the state of Ohio, which act was passed by the general assembly of the statq of Ohio on the twenty-fifth day of April, 1904 (97 O. L., 313). That it is the duty of the-said defendants, Disney Rogers, George F. Robinson and E. E. Roberts, as such judges of the court of common pleas, enjoined upon them by force of said act heretofore referred to, to fix the amount of compensation of said county surveyor as heretofore stated.
    “The relator further says that said defendants,. Disney Rogers, George P. Robinson and E. E. Roberts, judges of the court of common pleas of Ma-honing county as aforesaid, entertaining doubts' with respect to their duty in the premises neglect, decline- and refuse to and declare that they will not fix the-compensation for Ms services as county surveyor as provided in said act heretofore referred to.
    “Relator further says that ever since the passage of the above entitled act the relator, as such surveyor as aforesaid, has done and performed and is now doing and performing and must continue to do and perform a large amount of public work of the kind for wMch prior to the passage of this act he was compensated according to the provisions of sections 1171, 1177, 1178, 1183, 1192, 1194 and 4664 as such sections then existed.
    “The relator further says that by the ordinary course of the law he has no adequate remedy against the said defendants for so refusing.
    “Wherefore, the relator prays that the defendants, Disney Rogers, George P. Robinson and E. E. Roberts, judges of the court of common pleas of Ma-honing county, Ohio, may be compelled to fix the amount of compensation of the relator as the surveyor of said county of Mahoning and state of Ohio, to be effective as of the date of the approval of said act; that an alternative writ of mandamus may first issue requiring the defendants to show cause, by day named therein, why they do not fix the amount of compensation of the relator as surveyor of Mahoning county aforesaid as of the day aforesaid, and that on the final hearing a peremptory writ of mandamus may be awarded to compel the defendants to fix the amount of compensation of the surveyor of the county of Mahoning, and for such other and further relief as the nature of the case may require. ’ ’
    • The defendants and each of them waived the issuing and service of an alternative writ of mandamus herein and demurred generally to the relator’s petition.

      Mr. W. R. Graham and Mr. Ernest G. Sohwan,, attorneys for plaintiff.
    The act before tbe court fixes tbe maximum compensation of - the county surveyor in all the counties-of tbe state at a sum not to exceed $3,000 per annum, and tbe judges of the court of common pleas of each county are constituted a commission to fix tbe compensation of tbe surveyors each year, and to fix an. aggregate sum to be expended for tbe compensation of tbe surveyor’s assistants.
    First: Tbe general assembly has tbe right to fix tbe term of office and the compensation of all offices-not provided for in tbe constitution. Article 2, section 20 of tbe constitution.
    Tbe act in question being a general one applies to' every county in tbe state, and every county surveyor is interested in having said act declared constitutional for tbe reason that a great many of tbe surveyors were working under tbe general law, and a. few under special acts in force prior to tbe passage of tbe act in question. The acts repealed by the enactment of the new law providing for the compensation of county surveyors were vague and uncertain in their meaning. No two counties in tbe state' were able to give them tbe same construction. It was, therefore, necessary for tbe general assembly to enact some law of a general nature to relieve this-condition throughout tbe state. This law prescribes-only one mode of compensating county surveyors, and therefore is capable of uniform operation throughout tbe state.
    Tbe law being a general one and one of uniform operation throughout tbe state, is, therefore, not in conflict with section 26 of article 2 of tbe constitution.
    Second: Is tbe act in conflict with tbe provisions! of section 20, article 2, which provides that “The general assembly, in cases not provided for in this constitution, shall fix the term of office and the compensation of all officers.”
    In this act the general assembly, in the performance of their duty under this section, have sought to-fix the compensation of county surveyors in each county of the state, and have provided that such county surveyor in each county of the state shall receive in full compensation for his services a salary not to exceed three thousand dollars per annum,, which is to be fixed by the judges of the court of common pleas of each county once a year.
    The act further provides for the compensation of surveyor’s assistants, and prescribes and fixes the' rule by which such-compensation is to be determined. Crickett v. State, 18 Ohio St., 21.
    Third: Does the act conflict with article 2, section 27 of the constitution, which provides that, “The' election and appointment of all officers, and. the filling of all vacancies not otherwise provided for by. this constitution, or the constitution of the United States, shall be made in such manner' as may be directed by law; but no appointing• power shall be exercised by the general assembly except as prescribed in this constitution and in the election of United States senators.” It is claimed that the general assembly in the act in question, after having fixed the maximum amount of compensation of surveyors, by constituting the judges of the court of common pleas of each county a commission to fix the amount of compensation of the surveyors of said county, have exercised an appointing power which is forbidden by said section of the. constitution. The argument is that these judges. ■of each county are constituted or appointed a commission — which is claimed to he an office — that their fixing of compensation is not the exercise of a judicial function, or of any power that can he conferred ■on the judges or courts as such; that the conferring ■of this power is the creation of a new and independent office, which can not be filled by the appointment of the legislature, whether the appointees be designated by name or by reference to another office which they hold.
    In support of the affirmative of this position we may be referred to the decision in the case of State v. Kennon et al., 7 Ohio St., 546.
    In State v. The Judges, 21 Ohio St., 1, the complaint was that the common pleas judges of Hamilton county had been usurping an office of trust, viz.: the office of fixing the compensation of deputies, ■clerks, etc., etc. The judges ’ plea was that they were ■empowered and required to discharge these duties by ■an act of the legislature.
    This case has been overruled in so far as it. followed the vicious rule laid down in Cricket v. State, 18 Ohio St., 22, viz.: Laws regulating the amount of ■compensation of public officers are not laws of a general nature; but in no other respect.
    In Walker v. City of Cincinnati, 21 Ohio St., 14, it was held: “The conferring on the judges of the superior court of Cincinnati to appoint trustees to ■carry out the purposes of the act, is not the exercise of an appointing power by the general assembly which article 2, section 27 of the constitution forbids. It is not the creation of a new office, but the annexing óf a new duty to an existing office.”
    Fourth: Is this act in derogation of article 4, section 14 of the constitution, which provides “that the judges of the common pleas court shall not hold any other office of profit or trust under the authority of this state, or the United States.”
    The writer of the above mentioned article is of the opinion that this act is in direct conflict both with the letter and spirit of this provision, which was designed to secure our elective judiciary and the people against the imposition of other than judicial duties on the judges. That the performance of these duties is an exercise of an office of trust. This, we think, is stating their position fairly.
    The trouble with this argument is that it has been repeatedly answered and decided in the negative by the Supreme Court of our state. It has been held over and over again in cases where the question was one of the material points involved, that there is nothing in the constitution to forbid the general assembly from requiring the performance by judges of duties not strictly judicial. That such an act does not create or invest them with a new office. That what they are directed to do they can only so do by virtue of their office as judges. That it does not follow from the fact that new duties or powers might have constituted a new 'office, that, therefore, they ■ do constitute such office. That judges can be required to discharge duties which are not strictly of a judicial character. That the kind of duties required in this act are judicial.
    The facts in State v. Judges, 21 Ohio St., 1, relative to the additional duties required of the judges by the act under review, are very similar to those required of the judges under the act in the present case, and the above holding has not been overruled. This case has been overruled on the ground that a law to regulate the compensation attached to a local office (i. e., a county office) is a local law, and upon that ground alone.

      Mr. Wade H. Ellis, attorney general, for defendants; Mr. Worthington- E. Babcock and Mr. George E. Jones, of counsel, for defendants.
    The duties imposed by the act are legislative and not judicial in character and as such can not be delegated to the judiciary.
    The constitution of the state of Ohio has distributed the powers of government among three coordinate branches, legislative, executive and judicial, which are separate and independent of each other. While there is no express prohibition in the constitution of Ohio against conferring the duties of any one branch of the government on any co-ordinate branch, the fact that the powers of government are so distributed by the constitution is regarded, as of itself, a prohibition against the duties of one department being conferred on another. Cooley’s Constitutional Limitations (6 ed.), 104; Zanesville v. Telephone & Tel. Co., 63 Ohio St., 442; Zanesville v. Telegraph & Tel. Co., 64 Ohio St., 67.
    The fixing of the amount of the compensation of county surveyors is a legislative and not a judicial function. Cooley’s Constitutional Limitations (6 ed.), 108.
    The constitution itself, however, has determined which department shall fix the compensation of officers. Article 2, section 20.
    A county surveyor is an officer within the meaning of this provision of the constitution. County officers are local officers only in the sense that they are elected by counties, and that their duties are confined to the counties in which they are elected;.otherwise, they are state officers. State of Ohio ex rel. v. Yates, Auditor, 66 Ohio St., 546; State of Ohio ex rel. v. Lewis, Auditor, 69 Ohio St., 202.
    The act is in conflict with article 4, section 14 of the constitution, which provides that the judges of the court of common pleas shall hold no other office of trust under the authority of this state. Article 4, section 14. ■
    Does the act under consideration create a new office of only impose new duties upon an existing office? If the act creates a new office then the law is in conflict with article 4, section 14, of the constitution, because the office is an office of trust, and being such the judges of the common pleas court can not accept it. Counsel for plaintiff assume that the act simply imposes new duties upon an existing office, i. e., the court of common pleas or the judges thereof. An examination of the act will disclose the fact that it creates'a new office instead of adding new duties to an existing office.
    The act does not require the judges of the court of common pleas, nor the court of common pleas itself, to fix the amount of compensation of the surveyors. It provides that, “The judges of the court of common pleas of each county are * * * constituted a commission to fix the amount of compensation of the surveyor of the county. ’ ’
    The act then provides what the duties of the commission shall be. The act, therefore, does not impose new duties upon an existing office, but creates a new office. It creates an office and constitutes the judges of the court of common pleas, the officers thereof.
    The act does not prescribe any oath of office by the judges before entering upon their duties, nor does it fix any compensation. The constitution, however, does prescribe an oath of office, and this is as obligatory as if the act itself had prescribed an oath of office. Compensation, while a usual incident to office, is not a necessary element in the constitution of an office. State of Ohio ex rel. Attorney General v. Kennon et al., 7 Ohio St., 547.
    In the creation of a new office and constituting the judges of the court of common pleas the officers thereof, the act under consideration differs from the laws before the court in the cases of State v. The Judges, 21 Ohio St., 1; Walker v. Cincinnati, 21 Ohio St., 14, cited by plaintiffs in support of their contention that the act under consideration simply annexes new duties to an existing office. The laws before the court in both of those cases required the judges, as such, to perform the duties imposed; in both of those cases, therefore, the duties were annexed to an office already existing. Neither of the cases cited is, therefore, in point. The facts of our case are analogous to the facts in State v. Kennon, supra.

    There being an office, it is unquestionably an office of trust. The judges of the court of common pleas, under the constitution, can not hold this office of trust, as required by the act under consideration.
    The act is in conflict with article 2, section 27 of the constitution, which provides that no appointing power shall be exercised by the general assembly except as provided in the constitution.
    The act not only creates an office, but it appoints the persons who are to perform the duties of the office. The act requires the judges of the court of common pleas of each county to perform the duties of this office — not the judges of the court of common pleas as such, nor the court of common pleas itself. The term is used simply to designate the persons who are to constitute the commission to fix the amount of compensation of the surveyor of the county; in other words, the legislature has undertaken to appoint the persons who are to perform the duties of this office,,and this is in direct conflict with article 2, section 27 of the constitution.
    The legislature in this act has not prescribed how these officers shall be appointed, but has appointed them itself, and this, by the express terms of the constitution, is prohibited.
    The act is in conflict with article 2, section 26 of the constitution, which provides that all laws of a general nature shall have uniform operation throughout the state. The law under consideration is a law of a general nature, and therefore, must operate uniformly throughout the state. State ex rel. Guilbert v. Yates, 66 Ohio St., 546; State ex rel. Guilbert v. Lewis, 69 Ohio St., 202.
    The constitutionality of an act, under article 2, section 26, is determined by its operation and effect and not by its form. Hixson v. Burson, 54 Ohio St., 470.
    The trouble with the act under consideration is, that it creates too many commissions, one for each county. The result will be that in no two counties will the same compensation be paid for the same service. While we have not the data before us to demonstrate this, we venture the assertion that an investigation will disclose the fact that the above statement is correct. We can, at least, safely say that the salaries fixed by the judges in the different counties will be far from uniform, for the same service,, throughout the state.
    The judges of the court of common pleas cannot be compelled to perform the duties required of them , by the act.
    This is the first case before this court in which it has been attempted by a proceeding in mandamus to compel the judges of the court to perform legislative duties conferred upon them by an act of the general assembly. In all previous cases the judges have consented to perform the duties imposed upon them by the act, and their right to perform such duties has been questioned by third parties — generally by a proceeding in quo warranto; in some instances by a suit for a permanent injunction, as in Walker v. Cincinnati, 21 Ohio St., 14. In these cases the court has said that while such duties are not strictly judicial, and that the judges could not be compelled to perform them, still there is no valid objection to the performance of them by the judges, if they choose to perform them, and that third persons can not object to the exercise of the powers conferred, on the ground that, their performance could not have been enforced. State v. Gazlay, 5 Ohio, 14; State v. Judges, 21 Ohio St., 1; Walker v. Cincinnati, 21 Ohio St., 14.
    In the case at bar the defendants decline and refuse to perform the duties conferred, and this proceeding is an attempt to compel them to perform such duties. Upon the authority of the cases last above cited, the defendants can not be compelled to perform these duties. The duties are legislative and not judicial, and should be performed by the department created to perform them. Can it be doubted that, in view of the overcrowded condition of some of the trial dockets of the common pleas court, that the judges of such court are justified in refusing to perform any duties that are not incident to the office of a judge, to say nothing of the wisdom of - a policy which permits such duties and powers to he conferred upon the office of a judge.
   Crew, J.

The sole question involved in this case is that of the constitutionality of an act of the general assembly passed April 25, 1904, entitled an act “Fixing the salaries of the county surveyors in various counties of the state.” This act, found in 97 Ohio Laws, pages 313 and 314, omitting the enacting and repealing clauses, is as follows:

“Section 1. The county surveyor in each county of the state of Ohio shall receive in full compensation for his services a salary not to exceed $3,000 per annum, and the judges of the court of common pleas of each county are hereby constituted a commission to fix the amount of compensation of the surveyor of the county. Such annual compensation shall he so fixed once each year. When such a commission shall deem .it necessary the county surveyor may appoint deputies, not exceeding three (3) in number, as prescribed in section 1166 of the Revised Statutes of Ohio, at a salary for one, not exceeding two-thirds of the salary of the surveyor; and for the other two, not exceeding for each, one-half of the salary of the surveyor per annum; and shall appoint such other assistants as are provided for in this act.
“Section 2. Said commission shall fix an aggregate sum to he expended for the compensation of such assistants, engineers, draftsmen and inspectors as may he deemed necessary to properly carry out the official duties of the office. The compensation of the surveyor, his deputies and other employes shall be paid monthly on the warrant of the county auditor out of the various improvement funds of the county in such amounts as may he pro rated by the-county auditor, to the various improvement funds. The county surveyor shall be responsible for the inspection of all public improvements, planned by him. The board of county commissioners shall allow the-surveyor and' said other employes their actual and necessary traveling expenses while engaged on county work, a statement of which expenses shall be-verified under oath by the person incurring the same. ’ ’ that the powers and duties of each, shall he separate-from and independent of the powers and duties of the other co-ordinate branches, and the distribution so made to the several departments, by clear implication operates as a limitation upon and a prohibition of the right to confer or impose upon either powers that belong distinctively to one of the other co-ordinate branches. Kilbourn v. Thompson, 103-U. S., 168. Judge Cooley in his work on Constitutional Limitations, page 126, speaking of this distribution of powers, says:

By the provisions of this act the county surveyor of each county of this state shall receive, in full compensation for his services, a salary not to exceed $3,000 per annum, the amount thereof to be fixed and determined by the judges of the court of common pleas of each county, who are by said act constituted a commission for that purpose and charged with the-duty of determining and fixing the amount of compensation that shall be paid to the county surveyors-in their respective counties. The first question perhaps that naturally suggests itself upon a consideration of this statute is, Are the powers conferred and the duties imposed upon the judges of the court of' common pleas by this act, legislative or judicial in their character? If purely legislative in their nature, then their delegation to a commission or tribunal other than the legislature itself is unauthorized, because inhibited by the constitution, for while-the constitution of Ohio does not in express terms forbid the conferring of powers belonging to one branch of the state government on any co-ordinate branch,, yet the fact that these governmental powers have been severally distributed by the constitution to the legislative, executive and judicial departments of our state government, clearly evidences a purpose--

“One of the most noticeable features in American constitutional law is the care which has been taken to separate legislative, executive and judicial functions. It has evidently been the intention of the people in every state that the exercise of each should' rest with a separate department. The different classes of power have been apportioned to different, departments, and as all derive their authority from the same instrument, there is an implied exclusion of each department from exercising the functions conferred upon the others.”

The power attempted to he conferred upon the-judges of the court of common pleas of the several counties of this state by the statute here under consideration is, by the express terms of the statute, the-power to fix and determine the amount of compensation to he paid to county surveyors in their respective counties. The power so given, and the <luty thus, imposed, is not to determine the value of services already rendered and to fix the amount of compensation therefor with reference to the value so determined, requiring only the exercise of a judicial function, hut it is to fix a compensation or salary in advance of the services to be rendered by a county officer (county surveyor), in such sum as said.judges may determine, not exceeding $3,000 per annum. The constitution of Ohio, article 2, section 20; provides that: “The general assembly in eases not provided for in this constitution shall fix the term of office and the compensation of all officers. ’ ’ The constitution itself having thus in express terms confided to the legislative department the power to fix the compensation of all officers, that branch' of the government is without right to delegate such power to a coordinate branch. Yet this is precisely that which is attempted, and is what will be accomplished by the ■statute under consideration, if the legislature shall be thus permitted to designate and select the judiciary as its agent for the fixing of compensation or •salaries for county surveyors. In support of the ■constitutionality of this act counsel for plaintiff invokes the doctrine of Cricket et al. v. The State, 18 Ohio St., 21, where it is said by this court, Judge White announcing the opinion, that “The duty enjoined by this section (sec. 20, art. 2) in regard to fixing the compensation of officers, does not require the general assembly to fix the sum or amount which ■each officer is to receive, but only requires that it shall prescribe or fix the rule by which such compensation is to be determined. ’ ’ But the interpretation thus given to this section can have no application in the present case nor can it aid us in determining the question of the validity of the statute here under consideration, for the very good and sufficient reason that this statute neither fixes the amount of compensation that shall be paid to county surveyors, nor does it “prescribe or fix a rule” by which the amount of such compensation is, or can be, ascertained and determined. Under this statute the amount of compensation to which county surveyors shall he entitled is to be determined solely by the judges, and the amount of such compensation or salary in a particular county can only be ascertained and known after the same shall have been fixed and determined by the judges of the court of common pleas of such county. In fixing the same, within the maximum limit prescribed, no rule need be followed, and no uniformity as to the amount allowed is required; but the amount fixed by the judges of one county may be more or less than the amount fixed by the judges of another county for exactly the same character of service, for the act itself prescribes no rule by which the amount is to be determined. . We are therefore unanimously of the opinion that the fixing of the compensation in the mode provided would be the exercise of a legislative function and that the power attempted to be conferred by this act upon the judges of the court of common pleas is purely a legislative power and may not rightfully be so delegated ; that for this reason the act is in conflict with section 20, article 2, of the constitution and therefore unconstitutional and void. In their brief in this case counsel for defendants contend that this act is invalid for the further reason that it is in conflict with certain provisions of the constitution other than section 20, article 2. But having determined that the act is invalid because repugnant to the last-named section we have not thought it important to consider the other objections to its validity urged by counsel in their brief.

The demurrer to the petition will be sustained and the petition dismissed.

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


source: Caselaw Access Project

author: Price, J.

license: Public Domain

text:
    Kelly v. The Tracy & Avery Co.

      Authority to purchase goods — As agent for another — Not to he' implied from special authority to sell, when — Chattel mortgage given hy vendee to vendor to secure purchase notes— Mortgage to cover additional goods bought hy vendee — Mortgagor retains possession of goods and is made agent of mortgagee — Mortgagee sells notes to third party — A merchant sells goods to vendee — And loots to transferee of mortgage notes-as principal of mortgagor — Law of sales — Law of agency — • Chattel mortgages.

    1. Authority to purchase goods as agent for another and on his credit, cannot be implied from special authority given such agent to sell goods and devote the proceeds to a particular purpose.
    2. On the eleventh day of January, 1899, H, being the owner of' a retail grocery, sold the same with its fixtures to S for an agreed price, part of which was then paid, and to secure-promissory notes for the deferred payments, S executed and delivered to H a chattel mortgage on the same stock and fixtures, which mortgage provides: “It is hereby understood that the mortgage is to include and cover all other goods, wares and merchandise which may be purchased and placed in said store building in place and stead of any portion of the said above mentioned goods, wares and merchandise now located in said store building.”
    The mortgage further provides: “It is expressly agreed by and. between the grantor (S, the mortgagor), and the grantee, (H, the mortgagee), that the above described property is. now by these presents, delivered by the grantor (mortgagor), to the said grantee (mortgagee), the same to remain in the-possession and under the control of said grantee as hereinafter provided.
    “It is further agreed by and between said grantor and said grantee, that the said grantor (mortgagor) is by these-presents placed in possession of said property, goods and chattels, as the agent of said grantee (mortgagee), such, possession to be the possession of said grantee. The said, grantor as such agent, to sell and dispose of said property,, and to account and turn over to- said grantee the proceeds of all such sales, at the maturity of said promissory notes from the date hereof, such sales to be made for cash only; books?. to be at once opened In tbe name of tbe grantee (mortgagee), and accounts of sales to be kept in the name of such grantee.”
    The mortgagor, while acting as such agent, was to receive weekly compensation for his services in that behalf to be paid out of proceeds of sale, and balance to be applied in satisfaction of the mortgage debt as it matured.
    In March, 1900, H, the mortgagee, sold and transferred by endorsement, to K, two notes secured by the mortgage which then remained unpaid, and while S was still in possession of the retail store as owner, and acting as agent of H; after which time the defendant in error sold and delivered to S .several bills of goods which were charged to him and which were placed in stock with his other goods, covered by the mortgage, and failing to receive payment for these new goods from S it brought its action against K, the purchaser of the notes from H, to recover the price of .the goods.

      .Eeld: That the agency of S is created, defined and limited by the written provisions of the chattel mortgage, and while they give him authority to sell the mortgaged goods as the agent of H, the mortgagee, and to apply the proceeds on the mortgage debt, they do not confer authority on S to purchase other goods on the credit of the mortgagee or his assigns.
    Nor can such authority be implied from the relations created by the terms of the chattel mortgage.
    :3. On the trial of such action, it was error for the court to charge, that “if the jury find from the evidence that the defendant, Jamison Kelly, acquired from C. F. Hurr the two notes of E. A. Smith, executed and delivered to C. F. Hurr and secured by the chattel mortgage, then the court charges you as a matter of law, that the said Kelly thereupon established such relations between himself and E. A. Smith as theretofore existed between said C. F. Hurr and said E. A. Smith, and the said Smith in the future conduct of the grocery business and in making the subsequent purchases of goods from plaintiff, for which suit is brought, acted as agent for said Kelly, and said Kelly under such state of facts is liable to pay for said goods.”
    It was also error to further charge the jury — “Now it is claimed that this agent E. A. Smith was not the agent of Hurr to purchase goods, but was only the agent to sell goods; that he had no authority whatever to purchase any goods, but according to the terms of the chattel mortgage, this agent had no- authority to purchase — no right to purchase for his trade; could go out and purchase goods and chattels, and the very moment these goods and chattels landed in his store building — purchased and brought there by this agent that they became the absolute property of this man Hurr. The law will not permit any such transaction. If he had authority enough by his purchase of these goods to transfer the ownership of these goods from the seller of the goods to Mr. Hurr, he had authority enough as agent to bind Mr. Hurr in the purchase of these goods, and for all purposes he would be the agent of Mr. Hurr in the purchase of the goods as well as in the sale of the goods.”
    The court also erred in. the following charge: “Therefore, if you find from the evidence, that after the notes secured by the mortgage from Smith to Hurr, were sold and assigned to the defendant (Kelly), and that there were goods purchased by E. A. Smith, or by some person acting for and by the authority of said E. A. Smith, or defendant; and that said goods were placed in the store and with the goods mortgaged by E. A. Smith as aforesaid, and that said goods were disposed of and accounted for and sold as the goods described in said chattel mortgage, then you will find for the plaintiff in such amount as you find such goods were sold for, together with interest from August 21, 1900.”
    (No. 8700
    Decided January 3, 1905.)
    Error to the Circuit Court of Crawford county.
    On the eleventh day of January, 1899, one C. F. Hurr was the owner of a retail grocery store in the city of Bucyrus, Ohio, and on that day, he sold the stock of groceries to E. A. Smith for the agreed price of $1,405.00, $405.00 of which was paid in cash by Smith, and for the balance of the purchase price, he executed and delivered to Hurr four promissory notes of that date, for the respective sums of $166.00, $166.00, $334.00 and $334.00, payable July 1, 1899, January 1, 1900, January 1, 1901, and January 1, 1902, respectively, each note bearing six per cent, interest per annum, payable annually. To secure the payment of each of these notes, Smith, the purchaser, executed and delivered to Hurr, the vendor, a chattel mortgage on the stock of goods so purchased, which was duly verified and filed with the recorder of Crawford county, whose office is in Bueyrus, the county seat of that county. Some of the conditions and provisions of the mortgage are important to the determination of the controversy between the parties, and we quote them, because they are relied upon by the defendant in error to support its right to recover of plaintiff in error.
    The granting clause is in the form usually found in mortgages of chattels, and the goods and fixtures conveyed thereby are described in detail as being situate in a building on a certain lot in the city of Bucyrus. Then follows the clause: “It is hereby understood that the mortgage is to include and cover all other goods, wares and merchandise which may be purchased and placed in said store building in place and stead of any portion of the said above-mentioned goods, wares and merchandise now located in said store building. To have and to hold all and singular, the goods, chattels and property above granted, bargained and sold, or intended to be so granted, bargained and sold, unto said C. F. Hurr, grantee, and his executors, administrators, successors and assigns forever.”
    Next follows the condition of the mortgage, describing the notes as above, and providing that in case of their payment, the mortgage should be void ; otherwise the same should be in full force and virtue in law.
    Also, is the following: “It is expressly agreed by and between said grantor and grantee, that the above described property is now by these presents, delivered by the grantor (mortgagor) to the said grantee (mortgagee), the same to remain in the possession and under the control of said grantee as hereinafter provided. It is further agreed by and between said grantor and grantee, that the said grantor is by these presents placed in possession of said property, goods and chattels, as the agent of said grantee, such possession to be the possession of said grantee. The said grantor, as such agent, to sell and dispose of said property, and to account and turn over to said grantee the proceeds of all such sales, at the maturity of said promissory notes from the date hereof. Such sales to be made for cash only. Books to be at -once opened in the name of the said grantee, and accounts of sales to be kept in the name of such grantee. The grantor, as such agent of said grantee, to receive for services to be paid weekly ■out of the proceeds of such sales and not otherwise, the sum of--dollars per week. And the balance of the proceeds of such sales, to be applied in satisfaction of the indebtedness aforesaid. ’ ’
    It is stipulated that an inventory and schedule of the property so conveyed should be made in duplicate, each party to hold one copy. It is next agreed that, if at any time, it shall be ascertained that the grantor (Smith) while in the possession of such property as agent of the grantee, shall waste or endanger the same, or fail to honestly account for the proceeds of sales, his right to continue as agent of grantee shall at once cease, and his place filled with such person as the grantee may select.
    The grantee, Hurr, is authorized to insure the property in a sum not exceeding the amount of indebtedness so secured, and pay the cost of insurance out of proceeds of sales. All insurance held by the grantor on the mortgaged property to he transferred to the mortgagee.
    The only other stipulation of the mortgage- hearing on the controversy here, is in substance, that if the indebtedness described is not paid at maturity of the notes, from the proceeds of the sales in the manner before provided, the grantee may sell and dispose of a sufficient amount of the mortgaged property to satisfy the unpaid portion of the indebtedness, which sale should be public, after notice of the same for three consecutive weeks in some newspaper ,of general circulation in the county. After disposing of goods sufficient in amount to pay the indebtedness, and costs of sale, the remainder of the goods shall be transferred to the grantor, or mortgagor.
    On the same day that the purchase was made by Smith (January 11, 1899) and the above mortgage was executed, Smith took a lease on the store building for five years with the privilege of. ten years, and went into possession of the property, goods and chattels purchased, and took in with him to run the store, a Mr. Messinger, and after him David Fisher, whose business was to operate the store for Smith at his request, while he, Smith, was working at his trade as painter for the Toledo & Ohio Central Railroad Co. It seems that the goods for which recovery was had in the lower court, were ordered by Mr. Fisher for Smith.
    The first two notes were paid off, and in the month of March, 1900, Hurr, the payee and mortgagee, sold and transferred to the plaintiff in error the last two notes of $334.00 each, to fall due January 1,1901, and January 1,1902, respectively. They were endorsed to plaintiff in error without recourse, and contained the memorandum, “secured by chattel' mortgage.” These notes were negotiable in form, but the mortgage was not transferred by endorsement, nor was it delivered to plaintiff in error, but remained on file in the recorder’s office. The plaintiff in error had knowledge that the notes transferred to him were secured by the chattel mortgage.
    The goods, for which recovery was had in the court of common pleas, were shipped by defendant in error at divers dates from June 21, 1900, to August 16, 1900, inclusive, and were ordered by David Fisher for E. A. Smith, the mortgagor, and no authority was given by plaintiff in error to either Smith or Fisher to order goods from defendant in error or anyone else, to place in said store, but the goods were charged by defendant in error to Smith. The plaintiff in error was never in actual possession of the store, nor did he exercise any control over it.
    In September, 1900, Smith assigned in bankruptcy all the goods, chattels and merchandise then on hand, as his own individual property, and later applied to retain a part' of the proceeds of the stock in lieu of a homestead, which was denied him because of the mortgage of the plaintiff in error.
    The plaintiff in error appeared in the bankruptcy proceedings, and asserted his claim to the proceeds of the goods as a mortgage creditor and not as an absolute owner of the goods, and his claim was allowed, not only as to goods'on hand when the mortgage was given, but also as to other goods placed in the stock thereafter and before assignment.
    ' The defendant in error- was represented as to its claim for the goods furnished at the times above noted, ait the first meeting of -the creditors of Smith in said bankruptcy proceedings, which was on the twentieth'day of September, 1900, when it claims,, it,, for the first time had knowledge of the nature of the instrument herein denominated a chattel mortgage, and shortly thereafter withdrew its claim against Smith from the referee in bankruptcy, and sued the plaintiff in error for the price of the goods it had shipped and charged to Smith.
    In its amended petition, the defendant in error avers that, the goods were shipped to the plaintiff in error, Kelly, at his request, and for which he was indebted to it. The shipments are set out in detail, followed by prayer for judgment for the sum of $265.47.
    The plaintiff in error answered and denied each and every allegation of the petition. He also set up a second defense, which is not important here.
    The case proceeded to trial by jury, and at the close of the testimony, the court at the request of the plaintiff below, charged the jury as follows: “If the jury find from the evidence that the defendant, Jamison Kelly, acquired from C. P. Hurr, the two notes of E. A. Smith, executed and delivered to C. P. Hurr, and secured by the chattel mortgage, plaintiff’s exhibit ‘B,’ then the court charges you as a matter of law, that the said Kelly thereupon established such relations between himself and E. A.' Smith as theretofore existed between said C. P. Hurr and said E. A. Smith, and said Smith in the future conduct of the grocery business and in making the subsequent purchases of goods from plaintiff for which suit is brought, acted as agent for said Kelly, and said Kelly under such state of facts is liable to pay for said goods.”
    The court in the general charge said: “The evidence relating to the agency of E. A. Smith, and his power as such, is contained in a chattel mortgage offered in evidence in this case,” and the terms of the mortgage are narrated to the jury. Then the court adds: “Now it is claimed that this agent, E. A. Smith, was not the agent of Hurr to purchase goods, but was only the agent to sell goods; that he had no authority whatever to purchase any goods, but according to the terms of this chattel mortgage this agent had no authority to purchase, no right to purchase for his trade, — could go out and purchase goods and chattels and the very moment'these goods and chattels landed in his store building, purchased and brought here by this agent, that they became the absolute property of this man Hurr.
    ‘ ‘ The law will not permit any such transaction. If he had authority enough by his purchase of these goods to transfer the ownership of these goods from the seller of the goods to Mr. Hurr, he had authority enough as agent to bind Mr. Hurr in the purchase of these goods, and for all purposes he would be the agent of Mr. Hurr in the purchase of the goods as well as in the sale of the goods. ’ ’
    There is more of the charge of like tenor and effect.
    Again the court said at the close of the charge: “Therefore, if you find from the evidence that after the notes secured by the mortgage from Smith to Hurr were sold and assigned to the defendant, and that there were goods purchased by E. A. Smith, or by some person acting for and by the authority of said E. A. Smith, or defendant, and that said goods were placed in the store and with the goods mortgaged by said E. A. Smith as aforesaid, and that said goods were disposed of and accounted for and sold as the goods described in said mortgage, then you will find for the plaintiff in such amount as you find such goods were sold for, together with interest from August 21, 1900.”

      Exceptions were saved by plaintiff in error as to the special and general charge. The defendant asked the conrt to submit to the jury certain interrogatories, which the court did in the following language: “The defendant has requested the court to submit certain interrogatories, which are as follows (reading them). You will answer each one separately. If the plaintiff shipped to the agent of Jamison GL Kelly these goods, then in law he shipped the goods to Jamison Gr. Kelly. Your answer to those interrogatories, if you find that he shipped these goods to the agent of Jamison Gr. Kelly, your answer whether or not he shipped these goods to Jamison G. Kelly, should be yes, for what a man does by the agent he does by himself.” Defendant excepted to this language. The jury found generally for the plaintiff in the amount demanded, and answered the interrogatories to the effect that each bill of goods wns shipped to Kelly at his request.
    A motion for new trial was overruled and judgment rendered on the verdict. The case was taken to the circuit court on error and that court affirmed the judgment.
    Error is prosecuted in this court to reverse both judgments.

      Messrs. Eli P. Evans and Fred H. Schoedinger, for plaintiff in error.
    By the terms of the mortgage E. A. Smith, the mortgagor, was placed in possession of the goods and chattels mortgaged, as the agent of C. F. Hurr, the mortgagee, and as such agent he was, in the language of the mortgage, “to sell and dispose of said property and to account and turn over to said grantee the proceeds of all such sales, at the maturity of the said promissory notes.” Kleine v. Katzenberger &

      Co., 20 Ohio St., 110. The counsel for The Tracy & Avery Co. contend that the mortgage by its terms authorized Smith to make purchases for and on the credit of Hurr. This we deny.
    The mortgágee, Hurr, was the general, but not the absolute owner of the mortgaged chattels. His rights and duties- as to the chattels were very different from what they would have been had he been the unqualified or absolute owner of them, and had put Smith in charge of the store as his agent to conduct the business. In equity, Hurr’s rights before the assignment, were those only of a creditor holding, the chattel mortgage as collateral security for the payment of the notes it was made to secure. He could not deal with the property as if it were his own. He could have sold it in the manner authorized by the terms of the mortgage for" the purposes therein stated. The proceeds were to be credited to Smith as so much paid upon the notes. The proceeds, until they became a credit on the mortgage debt, did not belong to Hurr to any greater extent than the chattels which produced the proceeds. If these funds before they became a payment on the debt belonged to Hurr, Smith would not be entitled to have them credited on the debt he owed to Hurr. This statement is illustrative of the distinction between the rights of Hurr as the general owner of these mortgaged chattels and his rights as the absolute owner of personalty. The record of the mortgage was constructive notice to the world of Hurr’s rights and duties as mortgagee in the mortgaged chattels.
    Smith’s interest in the chattels mortgaged was not extinguished by the mortgage. He had the right of redemption. Upon payment of the debt the residue of the chattels and their proceeds were to be his, and the mortgage was to .become void. He was in equity the owner of the chattels mortgaged and had an equitable interest in them that was the subject of attachment or assignment.
    The provision in the mortgage that, “It is hereby understood that this mortgage is to include and cover all other goods, wares and merchandise which may be purchased and placed in said store building, in place and stead of any portion of the said above mentioned goods, wares and merchandise now located in said store building,” must be construed and understood to mean only such goods as were supplied or added to the stock by Smith. Manifestly if a stranger left goods there to be sold on commission, or for safe-keeping, they would not be covered by the mortgage. If Hurr had not assigned the notes, and Smith had bought goods on Hurr’s credit and added them to the stock, they would have belonged to Hurr absolutely and would not have been covered by the mortgage, and upon payment of the mortgage debt they would not have belonged to Smith. In such a case Hurr would have been entitled to be paid from the proceeds of the chattels covered by the mortgage, and the proceeds from goods that were absolutely his, would belong to him.
    • Hurr was Smith’s creditor, and to secure the payment of $1,000.00 to him he took the said notes and chattel mortgage. This court is asked to assume from the terms of the mortgage which placed Smith in possession of .the goods to sell them, as Hurr’s agent and pay over, to him the proceeds until the mortgage debt was paid, that, by this arrangement, Hurr authorized Smith, to purchase goods for the store on Hurr V credit, and to mingle and,confuse them with the mortgaged chattels. Such, an arrangeinent between sane parties is bardly conceivable. If Hurr had authorized Smith to buy goods for the store on Hurr’s credit, the confusion into which the business would have been plunged is, apparent and Ilurr’s liability for goods purchased by Smith would not have been protected by the mortgage.
    There is nothing in the mortgage, and certainly nothing in the record outside of the mortgage, to warrant the inference as matter of fact,, and certainly not as matter of law, that if said notes had not been assigned, the said Smith would have been the agent of Hurr to purchase goods for. the store on Hurr’s credit.
    The Tracy & Avery Co. did not know that any of the notes had been assigned to Kelly until after it had proved its claim in the bankruptcy proceedings. So that the goods were not sold upon any reliance, or expectation, that Kelly would pay for them. Outside of the mortgage there is nothing in the record to show any liability on the part of Kelly. The question is simply whether, at the times of the purchases, Kelly became liable to The Tracy & Avery Co. for the goods thus sold.
    After the transfer of the two notes to Kelly, Mr. Hurr was the general owner of the mortgaged chattels and the owner of the legal title of the mortgage in trust for the holder of these notes, Colebróoke on Collateral Securities, sec. 145; Kernohan v. Manss et al., 53 Ohio St., 133. Hurr could have can-celled the mortgage — Kelly could not. And Smith continued as before to be Hurr’s agent to sell the mortgaged goods. The endorsement and transfer of the notes vested in Kelly the legal title of the notes and carried to Kelly an equitable interest in the mortgage as an incident to the assignment of the-notes. Kernohan v. Manss et al., 53 Ohio St., 133 2 Am. & Eng. Ency. Law (2 ed.), 1086. Kelly’s-rights were simply those of a creditor — his equitable-rights to the mortgage security were subject to the-. t rights of Hurr and Smith, as these rights existed at' the time of the transfer of the two notes to Kelly. The transfer of the notes to him did not make Smith his agent. There was no agreement between Kelly and Smith, and the latter was not in Kelly’s employment. If by the terms of the mortgage, Smith had the right to buy goods on the credit of Hurr and add them to the stock, such right was a valuable property right in Smith of which he could not be deprived without his consent, and a transfer of the notes to Kelly by Hurr could not deprive Smith of such right. Kelly would not stand in Sfnith’s shoes.

    The goods sued for if bought of The Tracy & Avery C<?. by Smith as agent of Kelly, would belong to the latter absolutely, and Smith would have had no interest in them. If placed in the store they would not have been covered by the mortgage — . within its proper construction and meaning; they would not pass to Smith’s trustee in bankruptcy.

      If Smith had been expressly authorised by Kelly to purchase goods on his credit, this would not authorise Smith to employ Fisher to buy them on Kelly’s credit. The rule is well settled that the-power conferred upon an agent upon the special confidence or trust which the principal has in the agent’s personal ability or integrity, in the absence of authority express or implied, cannot be redelegated by the agent so as to bind the principal. Am. & Eng.. Ency. Law (2 ed.), 972. The authority of an agent, to buy goods for a store on the credit of the principal is most clearly a personal trust and confidence which cannot he- delegated without certain and plain authority.
    The court’s charge to the jury is incongruous, illogical, discordant, misleading and erroneous.

      The. first proposition given in the charge to the jury, if properly given, virtually disposed of the ivhole case — Kelly having admitted he had bought the notes- — and nothing remained for the jury to do but to assess the amount for which they should return a verdict against the defendant Kelly. This was virtually and in effect a direction to the jury to return a verdict for the plaintiff. All the rest of the charge was unnecessary and superfluous. The fact that the court in other parts of the charge formally submitted various questions to the jury does not cure this misleading and erroneous proposition. The court in thus charging invaded the province of the jury, and determined the whole contention b'etween the parties. Instead of the charge given, the court should have directed the jury to return a verdict for Kelly, Pollock v. Cohen, 32 Ohio St., 514, or have left it to the jury, under proper instructions, to determine whether Smith, or Fisher, was authorized as the agent of Kelly to purchase the goods sued for, and as to Kelly’s liability. The proposition given is contrary to law and was fatally misleading and erroneous.
    The court erred in directing the jury that Kelly ■“is liable to pay for the goods.”
    The provisions of the mortgage do not warrant the inference as matter of fact and certainly not as matter of law, that Smith was the agent, of Hurr to make purchases — the mortgage is silent on . that subject and confers no such authority — but.if they -do warrant such inference it does not follow that the mere transfer to Kelly of the two notes secured by the mortgage, created the relation of principal and agent between Kelly and Smith and authorized him, •or his agent Fisher, to purchase the goods for Kelly.
    ■ This case should not be confused with the one where a person is the owner of a stock of goods in a running store, and is conducting the business by an agent, in which case the principal may be liable for goods sold to the agent and charged to him in ignorance that he had a principal. In such a case the .goods would be added to the stock and the principal would get the full benefit of the goods. But in this •case if Smith bought the goods for the store, in whom would the title to them vest when it passed from The ‘Tracy & Avery Co.? If it vested in Kelly he would ■be the absolute owner of the goods and they would not be covered by the mortgage, and woidd not pass ■to Smith’s assignee in bankruptcy. If it vested in Smith and the goods were added to the stock they would be covered by the mortgage, which was valid as between the parties to it. Francisco v. Ryan, 54 Ohio St., 308. From the record it is manifest that it was the mutual understanding of the mortgagor and mortgagee that the goods which might be purchased by Smith and added to the stock would belong to him.

    If at the times the goods sued for were purchased Smith was the agent of Kelly to make purchases, and The Tracy & Avery Co. had notice thereof but •elected to sell them on Smith’s credit and did so with his consent, the company is bound and concluded by that election. 1 Am. & Eng. Ency. Law (2 ed.), 1120, and notes. But if such agency did nót exist and the company sold and delivered the goods to' Smith on his credit, Kelly is not liable.
    Judges and writers in considering the rights and duties of creditors as to chattel mortgage securities, so far as we have observed, do not mention any liability on the part of the part of the creditor to perform the obligations imposed by the assigned collateral contract, or other instrument, upon the assignor, and we have found no case where such an. assignee has been held liable to perform the contract. The reason of this seems to be that no such liability exists unless imposed by positive agreement. Contracts and instruments of various kinds are frequently assigned as collateral security, and as to' such collateral securities the courts have uniformly held that the assignee is not liable. Taylor on Private Corporations (4 ed.), sec. 471; Henkle v. Salem Mfg. Co., 39 Ohio St., 547; Schwill et al. v. Beckel et al., 13 O. D., 699.
    Where a person causes stock to be transferred-to - him'on the stock books of the company issuing the' stock he becomes liable to subsequent creditors on the ground of estoppel, and not on his obligation ordnty as assignee of the stock as collateral security-having represented on the stock book that he was a stockholder, the courts estop him from denying that representation as against a creditor who has- extended credit to the company presumably on' the faith of that representation. Taylor on Private Corporations (4 ed.), see. 742; 22 Am. & Eng. Ency. Law (2 ed.), 908.
    A doctrine of estoppel that can have no application here. 22 Am. & Eng. Ency. Law (2 ed.), 907;. 4 Cyc., 88; 4 Cye. 88,'notes 22 and 23 •, Brewer v. Maurer, 38 Ohio St., 548.

      Kelly ivas not the assignee of the mortgage. By the transfer of the notes to him he acquired merely the equity in the mortgage. Allen v. First National Bank, 23 Ohio St., 97. The legal title of the mortgage remained in Hurr. Colebrooke on Collateral Securities, sec. 145; Kernohan v. Manss et al., 53 Ohio St., 133.

      Mr. L. G. Feighner, for plaintiff in error, in separate brief, cited and commented on the following authorities:

      Kernohan v. Manss, 53 Ohio St., 133; Jones on Chattel Mortgages, sec. 503; Holbrook on Collateral Securities, sec. 145; 1 Bouv. Law Dict., Rawley’s Rev., 116; Mechem on Agency, sec. 308; Craighton v. Toledo, 18 Ohio St., 447; Pomeroy Equity Jurisprudence, sec. 290; Francisco v. Ryan, 54 Ohio St., 307; Chapman v. Weimer, 4 Ohio St., 481; Berry v. Barnes, 23 Ark., 411; Story’s Agency, sec. 72; Robb v. Vos, 8 O. F. D., 290, 310; Baker v. Morse, 55 Kan., 276; Elliott’s General Practice, 276; Pollock v. Cohen, 32 Ohio St., 514; 2 Am. & Eng. Ency. Law (2 ed.), 286; 2 Abbott’s Trial Brief Pleadings, 1275, sec. 79; Mechem on Agency, sec. 186; Pendall v. Rench, 2 O. F. D., 531; Abbott’s Trial Brief, p. 146, sub. 6; idem. 126 and note; Martin v. Butler, Wright, 553; Electric Ry. Co. v. Hawkins, 64 Ohio St., 391; secs. 5201, 5242, 5307, Rev. Stat.

      Messrs. Bell, Brinkerhoff & Coss and Messrs. Harris <& Sears, for defendant in error.
    It may be stated as a general rule that where- a simple contract is made by a duly authorized agent without disclosing his principal, and the other party in contract afterward discovers that the person with whom he dealt was not the principal, he may abandon his right to look to the agent personally and resort to the principal. 1 Am; & Eng. Ency. Law (2 ed.), 1139.
    The contract between Mr. Hurr and Mr. Smith duly authorized Mr. Smith as the agent of Hurr to conduct the business, and Mr. Hurr's assignee, Mr. Kelly, in a court of competent jurisdiction made his claim to the proceeds of the after acquired property purchased by his agent, Mr. Smith. As soon as the disclosure came as to who was the principal, The Tracy & Avery Co. abandoned its right to look to Mr. Smith personally and resorted to the principal, Mr. Kelly. Lee v. Insurance Co., 13 Dec. Re., 109; 1 Handy, 217; Ford v. Williams, 62 U. S., 287.
    We also cite the above case on the doctrine that where the principal is entitled to the advantages or benefits to be derived from contracts made on his behalf by his agent, he also takes all the burdens and disadvantages connected with the contract. Meeker v. Claghorn et al., 44 N. Y., 349.
    When Honorable Judge Wing of the district court of the United States, held that Mr. Kelly was entitled to the proceeds of the after acquired property, he could have done so only on one theory, and' that was that he was in possession, because of the rule laid down in the 4th Ohio State which has never been abrogated in this state, and which rule is familiar to all the judges arid lawyers in the state. If he was in possession it was under the terms of the contract through Mr. Smith his agent, and if Mr.. Smith was his agent it necessarily follows that Mr. Jamison Kelly was the principal. Chapman v. Weimer, 4 Ohio St., 481.

      The néxt question is as to the right of the Tracy & Avery Co. to withdraw its claim in the district court and-thereby prevent estoppel running against it as to any other course they might pursue. On this proposition we first cite the Encyclopedia of Pleading and Practice, vol. 20, p. 1322.
    The proper person to say whether the circumstances were proper would be the court itself, and the fact that the court allowed it to be withdrawn would be conclusive proof that it was proper.
    In a bankruptcy proceeding before a referee, the properly verified affidavit as to a claim on the part of a creditor would stand in the relative position that a petition would or an ordinary pleading in the state courts. Adolph Friedman in 1 Am. Ban. Rep., 510.
    The next question on which we wish to cite authorities is as to the estoppel as running against Mr. Kelly. 11 Am. & Eng. Ency. Law (2 ed.), 446.
    We will venture assertion here that the proposition of law as given in this text will not be gainsaid or contradicted by any one. And we further say without fear of successful contradiction, that the facts in this case fit the proposition as given as completely as if the text writer in writing the text had this particular case in view. The same doctrine is practically held in Babcock v. Camp, 12 Ohio St., 11.
    The facts in the above case being practically admitted and certainly not disputed by any evidence,, and if we have made the proper claims under the facts, then it is perfectly.proper that the judgment, of the court below be affirmed.
   Price, J.

At the expense of much space, we have-presented in our statement of this case, the ground work of the dispute between the parties, — not a dispute about the facts, but concerning the law of the ■case. Counsel for the parties are as one upon the facts as we have stated them, and when they are examined it is not difficult to determine the legal conclusion to which they inevitably lead.

Two or three questions arise in the record and they have received the attention of counsel and have been discussed in their briefs.

One is the extent of the agency of E. A. Smith, the purchaser of the chattels from C. F. Hurr. It is conceded that the scope and terms of this agency depend entirely upon the language of the chattel mortgage executed by Smith to Hurr when the purchase was made. It is not claimed that either by parol, or any other instrument of writing, the scope of his authority was extended or modified. At the time of the purchase of the stock of groceries, and the fixtures, Smith paid Hurr in cash $405.00, and ■executed and delivered to Hurr, the vendor, four promissory notes, and secured their payment by a chattel mortgage on the property purchased, and provided in the instrument, that the lien created thereby, should extend to any goods which might be subsequently acquired and placed in the stock. As the very important part of the mortgage, it was agreed therein, “that the above described property is now by these presents delivered by said grantor (Smith, the mortgagor) to the said grantee (Hurr, the mortgagee), the same to remain in the possession and under the control of said.grantee, as hereinafter provided.”

It is next agreed that Smith, the purchaser and mortgagor, was placed in the possession of the goods and chattels, as the agent of Hurr, the vendor and mortgagee, but providing that “such possession to be the possession of said grantee,” Hurr. The powers and authority of this agent are clearly defined and limited as follows: “to sell and dispose of said property, and to account and turn over to said grantee (Hurr) the proceeds of all such sales, at the maturity of said promissory notes from the date hereof. ’ ’

It is then provided that, for acting as agent in that behalf, he should have a weekly compensation to be paid out of the proceeds of the sales, the balance to be applied on the mortgage indebtedness. Sales were to be for cash only, and careful account thereof to be kept by Smith. If this agent should waste the property, or if he should fail to honestly account for proceeds of sales, his agency should cease, and Hurr could put another in his place as such agent. By another clause, Hurr, the mortgagee, is empowered, in case the notes were not paid at maturity from proceeds of sales by Smith, to sell and dispose of a sufficient amount of goods to satisfy the unpaid balance, but such sale should be public, after notice by three weeks ’ publication in a newspaper of general circulation in that county.

Keeping in mind that the goods and chattels so purchased and mortgaged by Smith constituted a retail grocery, the reason is apparent for delivering to the mortgagee the possession of the property under the mortgage. A chattel mortgage on a stock of goods being sold at retail, with the mortgagor in' possession retaining the power to sell, is always a precarious lien, and it may fail as against other creditors and bona fide subsequent purchasers. Freeman v. Rawson, 5 Ohio St., 1; Harman v. Abbey, 7 Ohio St., 218.

To guard against danger, no doubt, the mortgage before us, was framed as it is, and it was competent for the parties to so provide.

In Kleme, Hegger & Co. v. Katzenberger & Co., 20 Ohio St., 110, this court held: “A stipulation in a mortgage of goods, that the mortgagor shall retain possession and sell the goods in the usual retail way, paying over the money received therefor to the mortgagee, as the goods are sold, does not render the mortgage, per se, fraudulent and void as against other creditors of the mortgagor. The question of good faith arising upon such stipulation ■ is one of fact for the determination of the jury.”

At the close of the opinion in that case, Scott, J., says: “That the mortgagor should thus act as agent of the mortgagees in selling the goods for their benefit, is not necessarily in fraud of the rights of other creditors, and if the transaction is bona fide it is difficult to see why it should not be upheld. Such an arrangement raises only a question of good faith, to be determined by the jury in the light of all the evidence, and is not per se fraudulent.”

In the case at bar, the powers and authority of the’ mortgagor were more carefully hedged about, because, while he was constituted the agent of the mortgagee to make sales, it was after a stipulation transferring possession to him, and that the possession for the purposes of the agency, in Smith to sell, should be the possession of the mortgagee.

It is clear therefore that .the instrument under consideration is one that . Smith had a right to execute and Hurr a right to receive.

Where, then, is found the authority for Smith, or Fisher for him, to bind Hurr or the plaintiff in error, Kelly, for the purchase of goods made of defendant in error? In March, 1900, — over a year after the execution and delivery of the chattel mortgage by Smith to Hurr, the latter sold and transferred the last two notes secured by the mortgage to Kelly. This mortgage was on file in the proper office and was refiled within the proper time. It seems undisputed that Kelly never had possession of the mortgage, for it remained on file. Furthermore, the only authority vested in Smith to act as the agent of Hurr, must he found in the chattel mortgage. The trial court correctly told the jury in the charge, that “the evidence relating to the agency of E. A. Smith and his power as such is contained in a chattel mortgage offered in evidence in this cause.” It is not claimed now, that his agency and its scope are derived from any other source, and we look in vain for any sentence or word in the whole instrument, that authorized Smith or any one for him to purchase goods on the credit of the mortgagee. His power and duty was to sell goods, and have enough of the proceeds on hand at the maturity of the notes, to satisfy them. The agency of Smith was not general hut special, and limited to a particular purpose clearly defined.

But it is urged in argument, that the power to purchase goods for the store on the credit of Hurr, mortgagee, may be implied from Smith’s authority to sell the goods at retail, and the charge of the trial court is tainted with this error. The intention of the parties to the mortgage is very plain and nothing is left to inference or implication. They put their whole contract in writing, and the creation of the agency in Smith to sell at retail to pay off the mortgage debt, was for that purpose only.

The authority to purchase on the credit of the mortgagee, was never asserted or exercised by Smith. He did not represent to plaintiff below that he was so authorized. In fact he purchased the goods in question in his own name as the owner of the store, and they were charged to him as such, and plaintiff below never had an account for them with Hurr or plaintiff in error, and knew nothing of Kelly’s relation to the stock or chattel mortgage, until he filed and proved his claim before the referee in bankruptcy, sometime after the last bill had been sold and delivered to Smith. Then assuming to experience some revelation, the defendant in error withdrew from the referee its claim against Smith for the goods furnished him, and brought the suit in the court below, which is now under review.

Another view urged for defendant in error is, that inasmuch as one of the stipulations of the mortgage extends its lien to goods subsequently acquired by Smith, such lienholder should be answerable for the new goods so supplied.

This view was in the mind of the trial court, and it pronounced condemnation upon an opposite opinion, and said, “The law will not permit any such transaction. If he had authority enough by his (Smith’s) purchase of these goods, to transfer the ownership of these goods from the seller of the goods to Mr. Hurr, he had authority enough as agent to bind Mr. Hurr in the purchase of these goods and for all purposes he would be the agent of Mr. Hurr in the purchase of the goods as well as in the sale of the goods. ’ ’

As there was no doubt about the condition of the mortgage as to the subsequently acquired goods, and that they went into the store with the other stock, the court practically decided the case in the face of the jury. This is true also of the special instruction given, which appears in the statement of the case, for there the jury was told in substance that because Kelly became the owner of the last two notes given by Smith to Hurr and secured by the chattel mortgage, he “established such relations between himself and Smith as theretofore existed between said C. F. Hurr and E. A. Smith, and that said Smith in the future conduct of the grocery business and in making the subsequent purchases of goods from plaintiff, for which suit is brought, acted as agent for said Kelly and said Kelly under such state of facts is liable to pay for said goods.”

What was left for the jury? Nothing. The two instructions surrounded Kelly, and he had no escape. The court committed error there, and continued the error into the balance of the charge. The clause providing for a lien on subsequently acquired goods, seqms to have been the stumbling block for the court, as if it were a new development in the execution of chattel mortgages. There is nothing new or fraudulent in such provision. It was held long ago in Chapman v. Weimer et al., 4 Ohio St., 481, that, “when such mortgage authorizes the mortgagee to take possession of the property secured and attempted to be secured, it is a continuing executory contract; and when the mortgagor acquires such property after the execution of the mortgage and actually delivers the same to the mortgagee, the latter thereby acquires a valid lien on such subsequently acquired property.”

In this case, as we have seen, possession of the store was delivered to the mortgagee at the date of and by express terms of the mortgage, and so continued until Smith assigned.. The goods subsequently purchased by him passed to the mortgagee and he had title to them. There was nothing in this clause of the mortgage to establish the relation of principal and agent between Hurr and Smith in the purchase of new goods, and certainly such relation did not pass to Kelly simply because he purchased two notes secured by the mortgage.

It is utterly incomprehensible to us, that the trial court should deduce such relation as a matter of law when there is not a single fact to justify it.

Another observation made in argument is, that authority to purchase goods on the credit of the mortgagee should be implied, because out of the proceeds of sales of goods, including subsequent purchases, the notes were to be paid. Beyond doubt, when Smith purchased the stock from Hurr and gave the mortgage in question, it was contemplated by the parties, that the profits of the business would enable Smith to meet the deferred payments, and also pay the bills for new goods. He assumed and perhaps tried to do both, but it appears he was a painter, rather than a merchant, and procured another to run the store, and eventually failed. The ■effects of his miscalculation or misfortune should not be visited upon one wholly innocent of their cause.

There is still one more argument urged, and it had ample recognition by the trial court. After Smith, mortgagor, assigned in bankruptcy, Kelly appeared with other creditors before the referee, and he presented his claim under , the mortgage. This was done on the nineteenth' day of September, 1900, more than a month after the last shipment made by defendant in error. In his affidavit proving his claim, Kelly says among other things: “And the said Jamison G-. Kelly is now the bona fide owner and holder of the said promissory notes * * * and of the said chattel mortgage. And by virtue of the premises this deponent alleges that he is the owner of the said property mentioned in the said chattel mortgage, and being in the said store building mentioned in said chattel mortgage at the time the said Elliot A. Smith caused his petition in bankruptcy to be filed in the said district court, as security for the payment of said notes to him belonging. ’ ’ On the trial of this case in the common pleas, the defendant in error introduced this affidavit against the plaintiff in error, and counsel claim for it that it works an estoppel against Kelly, affiant, making any defense against the demand of defendant in error.

The trial court charged the jury upon this subject also, and said * * * “when the hearing was then had before the referee in bankruptcy, Mr. Kelly then came in and declared that he as the owner of these notes and chattel mortgage was the owner in possession of these goods described in the chattel mortgage which secured payment of these notes. He naturally claimed that he was in possession of these goods, but by his claim he secured the proceeds of the sale of the goods, and having claimed at that time he was the owner, and having claimed at that time he was in possession by reason of the position of this man Smith as agent, he is now estopped to deny that he was the owner. He is estopped to deny that he was in possession of these goods.”

Is this statement the law? Let us see. ‘ Wé have already found that while Smith was the agent of Hurr to sell goods enough to pay off the notes, he was not the agent of Hurr to purchase stock, on his credit. That'being so, if Smith still continued to be agent for Hurr until lie parted with the notes to Kelly, and the-latter permitted Smith to remain as agent to sell to-pay off his notes, there was no new authority given Smith by Kelly, whereby-he could be held for purchases made by Smith. Kelly stood in Hurr’s shoes, is the very most that could be claimed. Hence, in the affidavit of Kelly before the referee, after reciting-the history of his notes and character of the mortgage, he ventures his opinion that “by virtue of the-premises, this deponent alleges that he is the owner of the said property mentioned in said chattel mortgage * * If Kelly took the place of Hurr in the chattel mortgage, and we should concede that Hurr’s possession of the stock passed to Kelly by reason of his purchase of the notes, then there was. no falsehood told by Kelly in his affidavit, although it be simply his opinion based on his rights under the mortgage. If his affidavit was not true in this, respect, — if his opinion was not sound, before the-referee was a suitable place for defendant in error to make a contest. It did not do so. There could not have been much surprise at the claim of Kelly, for-the chattel mortgage had been on file from January 11, 1899, up to the appearance before the referee,, and which was constructive notice to defendant in error of all its contents. In the meantime it sold and delivered goods to Smith and charged them to his. account. How then could the doctrine of estoppel apply? Did the affidavit of Kelly lead the plaintiff below to change its position to its injury? The goods, had already been furnished to Smith and on his credit. The only change of position which can be-attributed to the affidavit, is that defendant in error withdrew its claim for the goods from the referee- and decided to sue Kelly, and in place of receiving a. dividend from the assets of Smith as at first intended, it would risk an action against Kelly to recover the full price of the goods sold to Smith. This, would he a new field for the operation of estoppels, —an act of Kelly long after the sales, to control or influence the conduct of defendant in error several months before. It would he an estoppel with retroactive operation. At all events being estopped to' deny that he was the owner and in possession of the-goods would not tend to make him liable for their purchase. The claim of estoppel has not the slightest foundation, and the court grossly erred in the charge upon the subject.

On the whole case it seems that the trial court: started into the trial with a marked misconception of the meaning of the chattel mortgage and the-rights of parties under it, and so starting, we find, error pervading the entire charge, except in the recitals of the terms of the mortgage and the locating-of the burden of proof. The tide had set in against. Kelly and it had no ebb thereafter, and when the court submitted to the jury the interrogatories requested by Kelly, it was told that, “if the plaintiff’ shipped to the agent of Jamison G-. Kelly these goods, then in law he.shipped the goods to Jamison Gr. Kelly, * * * f0r in law what a man does by the agent he does by himself.”

Having in the charge practically decided that Smith was the agent of Kelly, the court here dictated what answers should he made to the interrogatories,, and Kelly had no chance for escape.

The trial court erred in all the particulars referred to and its judgment is erroneous. It follows that the circuit court erred in affirming that judgment.

Both judgments are reversed, and we think á retrial of the case would he useless, and conclude to render judgment for plaintiff in error on the undisputed material facts.

Judgments reversed.

Spear, O. J., Davis, Shauck, Crew and Summers, JJ., concur.


author: Shauck, J.

text:
    Blunk v. The Dennison Water Supply Co.

      Owner of property destroyed 5y fire — Through lach of water— ■ Cannot recover from water company — Which was under contract with municipality — To properly supply water for protection of citizens — Privity of contract.

    The owner of property which is destroyed by fire through the failure of a water company to furnish water and fire apparatus to the municipality in which it is situated and to the inhabitants thereof in accordance with its contract with the municipality cannot maintain an action against the company to recover the damages resulting therefrom; there being no legal obligation resting upon the municipality to afford him protection against fire, he is not privy to the contract by substitution.
    (No. 8571
    Decided January 3, 1905.)
    Error to the Circuit Court of Tuscarawas county.
    Plaintiff in error filed her original petition in the court of common pleas for the purpose of recovering from the defendant in error the value of her house which had been destroyed by fire owing to the failure of the water company to supply the village of Uhrichsville with water and apparatus sufficient in amount and character to afford due protection to its inhabitants against fire in accordance with the terms ■ of a contract between the municipality and the water company. The allegations of the petition with respect to the company’s obligation are in substance that on or about the eleventh day of February, 1888, the village for the purpose of protecting the property of the citizens against fire and causing them to be furnished with a sufficient quantity of water passed an ordinance authorizing the defendant to lay mains and pipes and to convey water thereby in and through the village and it was provided by the ordinance that the defendant was authorized to lay and maintain a system of pipes, conduits and hydrants along the streets and alleys of the village to supply the village and its inhabitants with water suitable for domestic, manufacturing and fire purposes. The company assumed the obligation to furnish machinery having power and capacity sufficient for fire protection and to maintain an adequate and efficient system. By the terms of the contract as alleged fifty-six frost proof hydrants of approved pattern and workmanship having double delivery were to be furnished by the water company; that the compensation therefor was to be derived by the village from a tax levied upon the taxable property of the city including that of the plaintiff; that the damage to the plaintiff resulted from the failure of the water company to comply with its said contract. The company demurred to the petition and in the court of common pleas the demurrer was sustained. On petition in error the judgment of the court of common pleas was affirmed by the circuit court.

      Mr. James A. D. Richards and Mr. John T. McCullough, for plaintiff in error.
    The contract shows upon its face that it was made for the personal benefit of the inhabitants of the village, which included the plaintiff.

      The defendant agreed to establish, lay down, maintain and operate a system of mains, conduits and. .hydrants, for the purpose of supplying the inhabitants of the village with water suitable for domestic, manufacturing and fire purposes, and so as to afford to its inhabitants the most adequate supply for domestic and manufacturing purposes and the greatest protection against fire. The contract repeatedly provides that defendant shall furnish to the inhabitants of said village a sufficient supply of good, wholesome water, suitable for domestic, manufacturing- and fire purposes, and that it shall maintain a system of water works complete in all its details, necessary for the supplying the inhabitants of said village-with good wholesome water for the aforesaid purposes ; and that said systein of water works should be-laid so as to furnish the inhabitants of said village-a complete, proper, adequate and efficient system so-that by means of said system it would furnish the-inhabitants of said village, at all times, an adequate supply of water suitable for fire purposes.
    Can not then a beneficiary under this contract, one-for whose benefit it was made and whose monies discharge its financial burdens, and thereby furnished' the consideration of it, maintain an action for its. breach?
    In Ohio, where a contract is made between two persons for the benefit of a third, such third person may sue upon it in its own name. Thompson v. Thompson et al., 4 Ohio St., 333; Crumbaugh v. Kugler, 3 Ohio St., 549; Manhattan Life Ins. Co. v. Smith, 44 Ohio St., 163; Emmitt v. Brophy, 42 Ohio St., 82.
    The name of the person to be benefited need not be-¡given in the contract if he is otherwise sufficiently ■designated or described.
    He may be one of a class of persons if the class is ¡sufficiently described or designated. Burton v. Larkin, 59 Am. Rep., 541; Johannes v. Insurance Co., 57 Am. Rep., 249.
    The defendant took upon itself the duty of furnishing water to all those who came within a certain ■class, viz.: “inhabitants.” It contracted expressly for a consideration, to furnish to these beneficiaries, •sufficient water for fire purposes.
    The rights and powers granted the defendant were upon the condition, coupled, with its express promise, that it would furnish ample water to the inhabitants for fire purposes; and having thus, upon sufficient consideration, assumed this duty, it became bound to carry out its contract.
    And where the positive contract, made for a sufficient consideration, is to do something for the benefit ■of a third party, that third party has a right of action for nonperformance.
    Reason and justice, regarding the sanctity of contracts require parties to do what they have agreed to do; and when a party, by his contract, creates a ■duty or charge upon himself, he is bound to make it good.
    We are sustained in our contention by the following cases: Paducah Lumber Co. v. Paducah Water Supply Co., 89 Ky., 340; Duncan v. Owensboro Water Co., 12 Ky. L. R., 35; Gorrell v. Greensboro Water Supply Co., 124 N. C., 328. We regard the logic in the last cited case unanswerable.

      Messrs. Healea & Healea, for defendant in error.
    The contention of the defendant in error, the decisión of the common pleas court below in sustaining the demurrer to the petition, and the judgment of' the circuit court affirming the common pleas, are-supported by the following authorities: The Akron W. W. Co. v. Brownless et al., 5 Circ. Dec., 1; 10 C. C. R., 620; Wheeler v. Cincinnati, 19 Ohio St., 19 ; Western College v. Cleveland, 12 Ohio St., 375; Boston Safe-Deposit & Trust Co. v. Ohio Water Co., 94 Fed. Rep., 238 (Salem, O.) ; Wright v. Augusta, 6 Am. St. Rep., 256 (Ga.); Becker v. Keokuk Water Works, 18 Am. St. Rep., 377 (Ia.); Fowler v. Athens City W. W. Co., 20 Am. St. Rep., 313 (Ga.); Willy v. Mulledy, 34 Am. Rep., 536 (N. Y.); Davis v. Clinton W. W. Co., 37 Am. Rep., 185 (Ia.); Nickerson v. Bridgeport Hydraulic Co., 33 Am. Rep., 1 (Conn.) ; Fitch v. Water Co., 47 Am. St. Rep., 258 (Ind.) ; Mott v. Cherryvale W. Co., 30 Am. St. Rep., 267 (Kan.); Howsmon v. Trenton W. Co., 41 Am. St. Rep., 654 (Mo.); Ferris v. Carson W. Co., 40 Am. Rep., 485 (Nev.); Eaton v. Fairbury W. W. Co., 40 Am. St. Rep., 510 (Neb.); House v. Houston W. W. Co., 31 S. W. Rep., 179 (Tex.); Foster v. Lookout W. Co., 3 Lea, 42 (Tenn.); Bush v. Artesian, etc., Co., 43 Pac. Rep., 69 (Ida.); Stone v. Uniontown W. Co., 4 Pa. Dist., 431; Beck v. Kittanning W. Co., 11 Atl. Rep., 300 (Pa.); Wainwright v. Water Co., 78 Kan., 146; Wilkinson v. Water Co., 28 So. Rep., 877 (Miss.); Britton v. Green Bay, etc., W. Co., 29 Am. St. Rep., 856 (Wis.); Phoenix Ins. Co. v. Trenton W. Co., 42 Mo. App., 118; Atkinson v. Newcastle, etc., Co., 2 Ex. Div., 441.
    In a later Kentucky case (Graves County Water Co. v. Ligon, 66 S. W. Rep., 725) the court held the water company liable to the citizen and refused to overrule the holding in that state, not upon the-ground of the correctness of the former holding, but upon the sole ground that the contract was made with reference, to the law as it then obtained in that state.
    We do not dispute the correctness of the holdings ^n the Ohio cases cited by counsel for plaintiff in error in their brief, but assert that they are not applicable to the. case at bar. “It is not every contract for the benefit of a third party that confers upon such third party the right to sue thereon.” The Akron W. W. Co. v. Brownless, 5 Circ. Dec., 1; 10 C. C. R., 620.
    A third person who is only indirectly and incidentally benefited by a contract has no right of action thereon. Howsmon v. Trenton W. Co., 41 Am. St. Rep., 654.
    The petition in the case at bar seems to have been drafted with reference to the North Carolina case of Gorrell v. Water Supply Co., 70 Am. St. Rep., 598, and great reliance is placed thereon by counsel for plaintiff in error in argument. This case was decided by a divided court, Faircloth, C. J., and Furches, J., dissenting, and the opinion therein, is based upon the ground, that the contract, though made between the city and the water company, was for the benefit of the citizen and taxpayer, and for that reason such citizen and taxpayer could recover thereon; that if it were not so the taxpayer is without remedy —“sustains damage for which there is no redress” — and that this is a complete “Reduotio ad absurdum. ’ ’

    We answer that if this view is correct, then the holdings of the Supreme Court of this state, in numerous cases, leads to the same result; and as closely bearing upon this question, we cite: Western

      College v. City of Cleveland, 12 Ohio St., 375, and Wheeler v. City of Cincinnati, 19 Ohio, 19.
    ' If the reasoning in the North Carolina case, supra, is correct, then the application of the principles ■enunciated in these Ohio authorities would lead to the same “Beductio ad absurdum.” The taxpayer pays taxes to the municipality where the municipality owns and operates the water works, and yet he Is without the remedy of recovery against the municipality, because in relation to the construction .and operation of water works its acts are discretionary, legislative and governmental.
    We are unable to discern any reason to change this rule in a case like the one at bar, where the municipality, under the authority of the statute, contracts with the water company for a water supply. By such a contract the municipality delegates its authority to the water company for the consideration agreed to be paid, acts in its stead in furnishing and supplying public fire hydrants.
    Again the public good and public necessity requires that a municipality should not be held liable to the individual for damages in case of fires, as the ■expense incurred would render provisions for the ■extinguishment of fires impracticable if not impossible ; and for the same reason water companies are •not liable. Akron Water Works Co. v. Brownless, 5 Circ. Dec., 1; 10 C. C. R., 620.
    This is clearly an action ex contractu, and not an •action ex delicto. The charge of negligence as made in the petition is a mere conclusion, and no facts are therein set out constituting of showing negligence on the part of the defendant company, aside from its .alleged failure to perform its contract. They .amount to an allegation that the defendant company failed to perform its contract, and that such failure constituted negligence on its part.
    We maintain the law to be that the breach of duty of a party in failing to perform an express contract is not negligence in the legal sense, and that the remedy therefor, if any exists, is for breach of contract and not in tort. Shearman & Redfield on Negligence, Vol. 1 (5 ed.), secs. 2 and 116; House v. Houston W. W. Co., 31 S. W. Rep., 179; Mott v. Cherryvale W. Co., 30 Am. St. Rep., 267; Cooley on Torts, 90-91; Moak’s Underhill Torts, page 23, rule 7; page 24, rule 8; page 25; Fitch v. Seymour W. Co., 47 Am. St. Rep., 258; Fowler v. Athens City W. W. Co., 20 Am. St. Rep., 313.
   Shauck, J.

Remembering that the case presented

by the original petition is not affected by its argumentative averments, the question to be considered does not differ from that determined in the numerous cases given in the reporter’s abstract of the briefs. They are nearly, if not entirely, in accord with the judgment of the circuit court in the present case. Those in which a different view of the subject has been taken will receive ‘ sufficient attention if, following the suggestion of counsel for the plaintiff, we give due consideration to the principles involved in the inquiry. Their reliance is upon the proposition that an agreement made ón a valuable consideration by one person with another to perform an obligation to a third may be enforced by . such third person in his own name, as was held by this court in Crumbaugh et al. v. Kugler et al., 3 Ohio St., 544, and other cases following it. But an obligation to. the inhabitants of a municipality as distinct from that to the municipality itself arising out of contracts of. this character has been frequently asserted by the inhabitants and nearly as frequently denied by the courts. These cases proceed upon the familiar principle that contracts bind only the parties who have executed them and those who are in privity with them. The cases relied on by counsel for the plaintiff concede the principle stated, and they were supposed to be decided consistently with it. They are without exception cases in which a legal obligation rested upon the promisee in the contract sued upon towards the third person bringing the suit, and such obligation is indispensable to the application of the doctrine. The view upon which such obligation is thought to meet the requirements of the rule as to privity, is thus expressed in Vrooman v. Turner, 69 N. Y., 280.

“A legal obligation or duty of the promisee to him (the plaintiff) will so connect him with the transaction as to be a substitute, for any privity with the promisor, or.the consideration of the promise, the obligation of the promisee furnishing an evidence of the intent of the latter to benefit him, and creating a' privity by substitution with' the promisor. A mere stranger cannot intervene and claim by action the benefit of a contract between other parties.”

That such legal obligation from the promisee to the plaintiff is wanting in the present case is made clear by Wheeler v. Cincinnati, 19 Ohio St., 20, where it is decided that the municipality is not liable to individuals for failure to furnish apparatus for extinguishing fires. If a stranger to a contract were held entitled to secure the benefits which might incidentally result to him. from its performance, not only would an established rule of the law be violated, but parties entering into, contracts could not determine the extent of their obligations nor the numbers of those to whom they might be incurred. The view of the subject urged on behalf of the plaintiff finds even less support in the reasons involved than it does in the decided cases.

Judgment affirmed.

Davis, Price, Crew and Summers, JJ., concur.