text:
    State of Ohio v. Griftner.

      Canal lands — Title to, acquired by state —• Remains after state ceases to use — Act of February 4,1825 — Statute of limitations does not run against state — Lands leased by claimant with no title — Rights of state and tenant— Tax sale of state lands.

      1. The title acquired by the state to lands which it appropriated and used in the construction and operation of canals under the act of February 4, 1825 , 23 O. L., 50, is a fee simple, and the former owners of such lands, by reason- of such appropriation, parted with all their title and interest in such lands.
    2. The fee simple title to such lands remains in the state after it ceases to use such lands for canal purposes, and the statute of limitations does not run against the state as to such lands.
    3. When such lands are leased by a claimant who has no title, to a tenant who takes possession, and the state thereafter leases the lands to the same tenant, and he pays rent to the state and refuses to pay rent to the claimant, the possession of such tenant is the possession of the state, and it may maintain an action against such claimant to quiet its title.
    4. The rule that a tenant cannot dispute the title of his landlord, does not in such cases have the effect to prevent the state from obtaining actual possession of its lands by means of a lease to the tenant of a claimant who has no color of title.
    5. A tax sale of lands belonging to the state is void, and confers no right to the lands upon the purchaser.
    (Decided November 28, 1899.)
    Error to the Circuit Court of Warren county.
    The State of. Ohio by the Attorney General, brought its action in the court of common pleas of Warren county to quiet its title to a certain lot of lands in the village of Franklin in said county, and forming a part of what is known as the Great Basin of the Miami and Erie canal. The petition averred that the state was the owner in fee simple and in actual possession of said lot of land, and that the defendant claimed an estate and interest therein, and averred that the defendant had no estate or interest in the lands, and prayed that the title of the state be quieted.
    The answer denied that the state was in possession of the lands, denied that the state had title to the lands, and set up a tax title and deed thereunder at delinquent tax sale.
    The reply denied all the new matter in the answer.
    In the court of common pleas a decree was rendered in favor of the state, and the cause was taken on appeal to the circuit court, and upon trial in that court the decree was against the state, and in favor of the defendant in error.
    The circuit court made a finding of facts separate from its conclusions of law as follows:

      “CONCLUSIONS OF FACT:
    “That this is an action to quiet title to real estate; that the real estate in question is situated in Franklin, Warren county, Ohio, and was formerly known as the Great Basin; that in the year 1828 the Miami and Erie canal was built through said Franklin, Warren county, Ohio, and that said land in said year was by the State of Ohio, plaintiff herein, without any grant of title or proceeding in condemnation, flooded with water, and the same was thereafter for several years used by the state for canal purposes as a part of the said Miami and Erie canal; that the State of Ohio flooded said basin with water from said canal for the full length of said basin; that there was no obstruction or barrier existing between said canal and basin; that the water from said canal flowed freely from said canal into said basin for the full length of said basin; that the plaintiff herein, the State of Ohio, used said basin property for canal purposes for years thereafter; that said plaintiff used said basin all of said time in connection with said canal, for turning its boats and canal boats in use and traversing said canal. That during a period of said time said state cleaned out said basin and removed the mud and earth therefrom to keep it navigable for, boats traversing said, canal. About the year 1848 the State of Ohio ceased to use said land in question and described in the petition for canal purposes, and the grantors of defendant, who before the state had so used the said land, owned the same, took possession thereof, claimed to be the owners thereof and erected buildings thereon and used said land until 1886, when the land was leased by one William H. Squires, who had acquired the title thereto of said original owners, to P. P. Maxwell, for one year with the privilege of five years. This lease expired in July, 1891, but said Maxwell did not yield possession of said land to said Squires, grantor of defendant, but acquired a lease from the State of Ohio for said lands for a period of fifteen years, while said Maxwell was holding the same as the tenant of said Squires, and has paid rent to the State of Ohio since November, 1890.
    “In 1890 the State of Ohio by its Board of Public Works and Canal Commissioners, caused said land to be surveyed and platted, and claimed to be the owner thereof, and asserted title thereto, and in August, 1890, duly executed and delivered to said P. P. Maxwell a lease for said lands for a period of fifteen years from that date, while he was holding under said lease from Squires and as his tenant, and said Maxwell has remained in possession of said land ever since, and has refused to pay rent to said Squires or the defendant herein, but since November, 1890, has paid to the State of Ohio rent for the premises according to the terms of its said lease to him. And the court further finds that the only right or claim of the state to the possession of said premises is by virtue of the possession of Maxwell. In May, 1894, said William H. Squires executed a deed to the defendant, Charles H. Griftner, for said land.
    “And the court further find that the plaintiff in this case, the State of Ohio, had, at the commencement of this action, no possession of said land except as above stated. And as its

      “CONCLUSIONS OF LAW,
    “Upon the above facts, the court finds that the plaintiff is not entitled to maintain this action to quiet title to said lands.
    “It is therefore ordered, adjudged and decreed that this action be dismissed at the cost of the plaintiff, without prejudice to plaintiff, to its right to bring any other kind of action it may be entitled to maintain in reference to said land, or to maintain an action to quiet title should it legally obtain possession to said land.”
    The state excepted to the conclusions of law, and filed its petition in error in this court seeking to reverse the judgment of the circuit court, and for judgment in its favor upon the finding of facts.

      F. S. Monnett, Attorney General; J. D. Miller and S. W. Bennett, for plaintiff in error.
    The first proposition is: What is the source and character of the State’s title to the lands in question?
    We contend that all that was .necessary, under the act of February 4, 1825 (23 O. L., 50), for the state to have acquired title to such lands as the canal commissioners, or any of them, considered necessary for canal purposes was merely to enter upon, take possession of, and use the same for canal purposes, either by themselves, their superintentendent, agent, or engineer. That such acts constituted an “appropriation” under that statute. And that the title so acquired, and vested in the state, is a fee simple. 34 Ohio St., 541; Ohio ex rel. v. Railway Co., 53 Ohio St., 189; Vought v. Railway Co., 58 Ohio St., 160; Hewitt v. The Valley Ry. Co., in the circuit court of the United States for the northern district of Ohio, eastern division. State of Ohio v. Snook, 53 Ohio St., 532.
    The state having acquired the fee simple title to said lands, did nothing to surrender or qualify it. No reversion works against the state by reaon of non-user. Walker’s American law, page 344; Anderson’s Law Dictionary; Washburn’s Real Property, Vol II, page 344; Ohio ex rel. v. Ry. Co., 53 Ohio St., 244.
    The title acquired by the state being an unqualified fee, where was there any “residue of an estate remaining in the grantor?”
    The act in question under which canal lands were thus appropriated (23 O. L., 57) did not make the fee simple title conditional upon continuous user or occupancy, nor did it provide for any reversion of the title to the original grantors.
    Possession by the state follows from its owner ship, and the state cannot be disseized except in the manner provided by the statute. Its ownership being continuous since 1828, its possession is likewise continuous; no act amounting to disseizin being shown.
    Examining the finding of facts critically, one cannot help but characterize the ownership or possession claimed by the defendant as a “pretentious, bald assertion,” with nothing to support it.
    .Can an individual acquire title or possession to state property by “claiming to be the owner thereof, and erecting buildings thereon?” The proposition answers itself. We admit that, as between individuals, such an assumption of possession might ripen into a title in the claim after a term of years, if it be exclusive, adverse and continuous.
    But such a rule never obtained against the state.

      To be possession at all, it must be such possession as would ripen into a title in time. And as against the state no such title can ever accrue. Lindsey v. Miller, 6 Pet., 666; People v. Van Rensellear, 8 Barb., 189; People v. Clarke, 10 Barb., 120; Kingman v. Sparrow, 12 Barb., 201; Ward v. Bartholomew, 6 Pick., 409; Burgess v. Gray, 16 How., 48; Vickery v. Benson, 26 Ga., 590; Trustees Green Tp. v. Campbell, 16 Ohio St., 11; Oxford Tp. v. Columbia, 38 Ohio St., 87; Seeley v. Thomas, 31 Ohio St., 301; Wallace v. Miner, 6 Ohio, 366; Wallace v. Miner, 7 Ohio (1st pt.), 249; State v. L. S. & M. S. Ry. Co., 1 N. P., 292; Wastenay v. Schott, 58 Ohio St., 410; Washburn Real Property, Vol. 3, pages 171, 203; Burr v. Gratz, 4 Wheat., 213; Smith v. Burtis, 6 Johns., 218; Cadman v. Winslow, 10 Mass., 146; 2 Prest. Abst., 286; 4 Kent’s Commentaries, 482; Den v. Hunt, 20 N. J. L., 491.
    It was said by the circuit court that Maxwell was the tenant of Squires, a former claimant to said lands, and at the time of entering into a lease with the State of Ohio, he had not surrendered possession under the lease made with Squires; hence, that he, at that time, was not a tenant of the state, and this action cannot be maintained, as the state was not in possession itself, or by its tenant Section 5779, Revised Statutes.
    We admit that, in order to maintain the action, the plaintiff, the state of Ohio, must set forth and prove actual possession, and also must have the legal title. Clark v. Hubbard, 8 Ohio, 382; Buchannan v. Roy, 2 Ohio St., 251; Thomas v. White, 2 Ohio St., 540; Douglas v. Scott, 5 Ohio, 194.
    It could only be by virtue of a lease executed under the provisions of the canal commissioner’s act found in Vol. 86, Ohio Laws, page 270. No other way is provided by statute. It is unnecessary to state that the defendant herein had no such lease from the state, but the lease to Maxwell, the tenant of the state, made about August, 1890, was made pursuant to this act.
    Under section 5 of said act, before the commis' sion could enter into such lease, such commission shall find the land to be the property of the state; and with the board, of public works, and its chief engineer, shall first determine it not to be necessary for the actual use for the canals of said state; and it further provides the terms they may lease it upon.
    The finding of facts showing that the state executed a lease to Maxwell for said lands, it will be presumed, in the absence of any evidence to the contrary, that all the necessary steps were taken, acts done, and findings made by the proper authories before entering into such lease.
    We think the maxim, “omnia rite acta prsesumuntur” is properly applied to such a case. We should not presume a state of facts which would “invalidate the record.” Sheehan v. Davis, 17 Ohio St., 579; Wilson v. Giddings, 28 Ohio St., 561; Lessee of Winder v. Sturling, 7 Ohio, 539.
    We contend that section 5779, Revised Statutes, does not contemplate that a mere “squatter’s” occupation of real estate is “possession,” such as would preclude the rightful owner from maintaining an action against him to quiet his title. And if the defendant was occupying the land at all, which we deny, it could only be as a “squatter,” or trespasser, one without any claim of right. Grubb v. Wells, 34 Iowa, 150; Washburn Real Property, Vol. 3, page 139; Pulaski County v. State, 42 Ark., 118.

      The state can never lose its title by “adverse possession” in another.
    The defendant, Griftner, did not get a deed of said lands from Squires, the pretended owner, until in May, 1894. At that time Maxwell was onr tenant. Griftner, therefore, never acquired any possession himself; and as this action is against him alone we are not concerned with the claims, if any, made by his grantors.
    The state’s possession at the time of his purchase was notice to him of onr title, and he took such deed as he received with knowledge of all our rights. Talbut v. Singleton, 42 Cal., 395; Canfield v. Hard, 58 Vt., 217; (S. C.) 49 Am. Rep., 100; House v. Beatty, 7 Ohio (2nd pt.), 84; Kelly v. Stanberry, 13 Ohio, 408; Williams v. Sprigg, 6 Ohio St., 585; McKenzie v. Perrill, 15 Ohio St., 162; Harvey v. Jones, 1 Disney, 65; Jaeger v. Hardy, 48 Ohio St., 335.

      Patrick Gaynor and C. B. Dechant, for defendant in error.
    The issue made by the petition and the first defense of the answer as to the possession of the land in controversy is the most important, and, as we think, the only question in this case.
    Had the State of Ohio, at the time of the commencement of this action below, actual possession of said land, by its agents or tenant? In order to maintain its action possession was necessary. R. S., 5779; Clark v. Hubbard, 8 Ohio, 382; Douglass v. Scott, 5 Ohio, 194; Collins v. Collins, 19 Ohio St., 368; Thomas v. White, 2 Ohio St., 540; Raymond v. Railway Co., 57 Ohio St., 271.
    It is a well-settled rule of law that a tenant cannot deny his landlord’s title. Maxwell v. Griftner,
      5 C. D., 323; Moore v. Beasely, 3 Ohio, 294; Hamilton etc., Co. v. C., H. & D. R. R. Co., 29 Ohio St., 341; Clark v. Beck, 72 Ga., 127; Bertram v. Cook, 32 Mich., 518; Brown v. Kellar, 32 Ill., 131.
    And as a result of. the foregoing rule, a tenant who has obtained possession of land from his landlord cannot attorn to a third person without first surrendering possession. Juneman v. Franklin, 67 Tex., 411; Trabue v. Ramage, 80 Ky., 323.
    An acceptance of a lease by a tenant in possession from a person other than his landlord works no legal change in his relations as tenant. Freeman v. Ogden, 40 N. Y., 105.
    A tenant cannot attorn to the true owner of the premises as against his landlord. Smith v. Granberry, 39 Ga., 381.
    A tenant cannot attorn to any other person than his landlord during his tenancy. Leavitt v. Stewart, 2 Stew., (Ala.), 474; Clark v. Beck, 72 Ga., 127.
    And the rule applies to one who claims to hold under the tenant. Russell v. Erwin, 38 Ala., 44.
    An adverse claimant who gets into possession of land by tampering with the tenant cannot resist the landlord’s claim where the tenant could not, and the rule applies to the state. Taylor, Land & Ten., Sec. 705.
    Counsel for the state claim that if the state ever had title to the land, then, in the absence of a conveyance thereof by the state, it was and is impossible for any one but the state to be in the actual possession of said land.
    A sufficient answer to that proposition is found, we think, in the very act of the legislature under which plaintiff in error is prosecuting this action, which clearly indicates that persons may be found in the possession of land to which the state has title. 86 O. L., 270, Sec. 6.
    Actual possession means the physical occupation of the land and the exercising of dominion and control over it, and a person may be in actual possession of land without any title thereto; in fact, possession may be so-long continued as to ripen into a perfect title.
   Burket, J.

The facts found by the circuit court show that the State of Ohio acquired the fee simple title to the lands in question by the occupation and use thereof for canal purposes, and that thereafter the former owners of the land had no title to, or interest in said lands. 23 O. L., 50, Sec. 8; State of Ohio ex rel. v. Ry. Co., 53 Ohio St., 189; State of Ohio v. Snook, 53 Ohio St., 521.

The claim is made by counsel for defendant in error, that the.state was not in possesion of these lands by itself or tenant, and that therefore it could not maintain an action to quiet title, and this was the ground upon which the circuit court rendered judgment in favor of the defendant below.

Section 5779 of the Revised Statutes provides that

“An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest.”

If the state was in possession of these lands by itself or tenant when it brought its action to quiet title it had a right to maintain the action, but if it was not in possession of the lands by itself or tenant it could not maintain this form of action.

The facts found show that the state acquired the fee simple title to the lands, and no fact appears which shows that the state ever parted with that title, and it must therefore be assumed that it still retained such title. When the state quit using the lands for canal purposes in the year 1848 the former owners, and those claiming under them, entered upon the lands, claiming to be the owners, and erected buildings thereon and used the lands until 1886, and then made a lease of the lands to one P. P. Maxwell, which lease by its terms ran to July, 1891. This entry upon the lands and claiming to be the owners thereof was without warrant of law, and gave the former owners of the lands no color of title, because as against the state their possession could not ripen into a title.

In the year 1890 the state caused these canal lands to be surveyed and platted, and claimed to be the owner thereof and asserted title thereto, and in August of that year duly executed and delivered a lease of said lands to said. P. P. Maxwell for a term of fifteen years, while he was holding under said lease from the" former owners and as their tenant, and he has remained in possession of said lands ever since, and has paid rent to the state, and. refused to pay rent to the former owners.

Under this state of facts, the question is whether the state was in possession of the lands by its tenant. The state claimed and was the owner of the lands, surveyed and platted the same, asserted title thereto and made a lease thereof and received the rent therefor. These facts clearly constitute possession by tenant.

But it is urged by counsel for defendant in error that as Mr. Maxwell had accepted a lease of these lands from the former owners, and was in possession of the lands under that lease when he accepted the lease from the state, that the doctrine that a tenant cannot dispute the title of his landlord is applicable, and that the possession of Mr. Maxwell continued to be the possession of the former owners, and could not become the possession of the state. The rule that a tenant cannot dispute the title of his landlord is sound, and we have no fault to find with the rule in cases where it is applicable. The rule has application only to litigation between landlord and tenant and those claiming under them. This is not such a case. Here the litigation is not between landlord and tenant, but between two parties, each of whom claims to own the fee simple. The state does not claim under or from Mr. Maxwell, and he is not a party to the suit. In an action by the former owners against Mr. Maxwell for possession, the rule of evidence that the tenant cannot dispute the title of his landlord would obtain, but that rule cannot have the effect to oust an actual possession by a mere theoretical one, in an action to quiet title. In such an action the possession need not be acquired rightfully, so long as' it is actual. The object of the action is to test and quiet the title, and this may be done by any one in actual possession, and the question as to whether the possession is rightful will usually be settled by the judgment as to the title. The right to bring the action is not limited by the statute to one rightfully in possession, but it may be brought by anyone in possession. The matter of the right is involved in the trial of the merits of the case.

It is not a question as to what Mr. Maxwell can or cannot do as to disputing the title of his landlord, whether such landlord be the state or the former owners, but the question is whether the state had the power to put him into actual possession of its lands while he held, as against the state, a wrongful possession of the same lands under a lease from persons having no color of title. We think the state had such power. In Taylor’s Landlord and Tenant, section 705, the author says: “So an adverse claimant, who gets into possession of land by tampering with the tenant can not resist the landlord’s claim where the tenant himself could not.” This clearly implies that an adverse claimant may get into actual possession by tampering with the tenant, and being thus in actual possession, our statute enables him to test the question as to title, by an action to quiet title.

We therefore hold that under the facts as found by the circuit court, the possession of Mr. Maxwell under his lease from the state, was the possession of the state, and that his. duty to the former owners did not, as between the state and such former owners, disqualify him from becoming the actual tenant of the state, and that his possession under such actual tenancy was and is the possession of the state.

The title to these lands being in the state, the auditor of Warren county had no authority to put the lands upon the duplicate for taxation, and the tax sale and the deed of the auditor were void, and conferred no right upon the purchasers to hold the lands.

The judgment of the circuit court upon the facts found should have been for the state, and its judgment will thereforé be reversed, and judgment rendered by this court for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.


source: Caselaw Access Project

author: Minshall, J.

license: Public Domain

text:
    Covington and Cincinnati Bridge Co. v. Steinbrock & Patrick.

      Employer’s liability for acts of employe — Negligence of independent contractor does not relieve principal, when — Injury in removal of wall.

    1. Where danger to others is likely to attend the doing of certain work, unless care is observed, the person having it to do, is under a duty to see that it is done with reasonable care, ana cannot, by the employment of an independent contractor, relieve himself from liability for injuries resulting to others from the negligence of the contractor or his servants.
    2. The ruined walls of a building of the defendant, measurably ae~ stroyed by fire, were left standing, a menace to the pulic and the property of others in the vicinity. He was ordered by the inspector of buildings to take down the walls; and, for the purpose, employed a contractor to do the work for an agreed consideration, and stipulated that he should save him harmless for injuries to others in doing the work. The east wall, by reason of the negligence of the contractor in attempting to pull it down, fell outward upon and injured the property of the plaintiffs, situate across an alley from the wall. Held, the defendant is liable for the injury.
    (Decided November 28, 1899.)
    Error to the Superior Court of Cincinnati.

      Maxwell & Ramsey and Robert Ramsey, for plaintiff in error.
    In order to recover from the employer for injuries occasioned by the wrongful act or omission of his contractor,, some fact must be shown which makes such wrongful act or omission directly traceable to the employer. In other words, there must be a breach of duty upon the part of the employer himself. It is for the breach of duty upon his part, and not for the contractor’s breach of duty as such, that the employer is liable.
    For example, where the employer specifies the particular mode of doing the work, and the injury is caused by performance in the manner specified, Carman v. R. R. Co., 4 Ohio St., 399; Tiffin v. McCormack, 34 Ohio St., 638; or where the employer reserves the right of superintendence over the work, City v. Stone, 5 Ohio St., 38; or where the very thing contracted for causes the injury, as where a traveler upon the highway falls into an unguarded ditch which the contractor hás dug across the highway under contract with his employer, Circleville v. Neuding, 41 Ohio St., 465; R. R. Co. v. Morey, 47 Ohio St., 207.
    None of these elements appear in the case at bar.
    There was testimony tending to show that the wall was rendered insecure and dangerous by reason of the fire, and that the defendant had notice of its condition. If it had been alleged and proved that the wall fell by reason of its insecure condition, and not by reason of any intervening act of negligence on the part of any other than the defendant, the case might have been brought within the principle of the decisions above referred to; since there was testimony tending to show that the defendant had not taken steps to secure adjacent property from such injury. In other words, the duty to remove the wall having once arisen, the defendant could not be relieved of that duty by delegating it to a contractor. The contractor might have been negligent in failing to protect adjacent property, but that would not render the employer any the less negligent.
    But the injury was not caused in this way. As before stated, the petition distinctly alleged that it was caused by the negligent acts of the parties removing the wall. The evidence showed that the contractor pursued an utterly reckless and unnecessary method for the sake of saving time and money; that he cnt deep grooves in the wall,, leaving sections of it in pyramidal shape, and that he sought to pull these sections down by ropes. The wall as originally turned over to the contractor did not fall. One section only fell, and that only after its character had been completely altered by these reckless acts of the contractor. The detached pyramid of brick that actually fell was as different from the wall originally turned over to the contractor, as if it had been constructed entirly by him out of different material. In such a case, under the unbroken current of authority, both in this state and elsewhere, the liability is wholly upon the contractor. Clark v. Fry, 8 Ohio St., 358; Gwanthey v. R. R. Co., 12 Ohio St., 92; Hughes v. Ry. Co., 39 Ohio St., 461; Chambers, Admr., v. Ohio Ins. Co., 1 Dis., 327; Veigel v. Lukenheimer, 10 Bull., 293; McCafferty v. R. R. Co., 61 N. Y., 178; Engel v. Eureka Club, 137 N. Y., 100; Negus v. Becker, 143 N. Y., 303; King v. Livermore, 9 Hun., 298; Ryder v. Thomas, 13 Hun., 296; Conners v. Hennessy, 112 Mass., 96; Ry. Co. v. Farm, 111 Ind., 195; Smith v. Builder’s Exchange, 91 Wis., 360; Aston v. Nolan, 63 Cal., 269; Baltimore v. O’Donnell, 53 Md., 110; Butler v. Hunter, 7 Hurl. & N., 825; Reedie v. Ry. Co., 4 Exch., 344; Ray v. Pullen, 5 B. & S., 970; Hughes v. Percival, 8 App. Cas., 447; Bowers v. Peate, 1 Q. B. D., 326.
    The general term laid much stress upon the fact that the dangerous condition of the wall amounted in law to a nuisance (4 N. P., 230.)
    Even if we should concede that there was prima facie evidence of a nuisance, there could be no liability upon the defendant unless the nuisance was the proximate cause of the injury. The law will not go back of the proximate cause in imposing the liability, even although the condition upon which the proximate cause may have operated was itself tortious. Cooley on Torts, pp. 70, 71; Morrison v. Davis, 21 Pa. St., 171; Bartlett v. Gas Co., 117 Mass., 538; Vicar v. Wilcox, 8 East., 1.
    It is respectfully submitted that the judgment at general term should be vacated and the judgment at special term affirmed.

      W. W. Symmnes, for defendants in error.
    This action was brought upon the theory that the facts would sustain the law anounced by this court particularly in the cases of Circleville v. Neuding, 41 Ohio St., 465; R. R. Co. v. Morey, 47 Ohio St., 207; and the authorities cited therein.
    The court below has held the law of those cases applicable to the one at bar.
    Was the court correct?
    The wall was taken down in an utterly reckless manner, and about that there is no controversy.
    The owner had upon his premises a ruined wall constantly threatening injury to others and property in the vicinity.
    It is correctly argued by counsel for the Bridge Company that if the duty to remove the dangerous wall once arose, the owner could not shift that duty to another, and it only remains to be determined whether or not the owner had a duty to perform with reference to the dangerous wall.
    No person had authority to enter upon the premises of the owner without the owner’s consent to remove the wall and it could not have been the duty of any other person to remove it. The wall was the sole property of the Bridge Company and it had no right to make any use of it or any change in it that would be an injury to others or to permit it to be converted into a nuisance if it was not one already.
    Consequently if any duty there was in the premises it was the duty of the owner, and that duty having once attached could not be shifted to an independent contractor and, the law of independent contractor has no application in this case.
    The damage was caused by the failure of the owner to see that due care was observed in doing the dangerous work, as it could be foreseen that if the work was done with want of due care injury was liable to follow by the ruined wall or part of it falling during the progress of the work.
    The array of fine authorities presented by plaintiff’s brief do not apply to the case at bar, for this comes distinctly under the exceptions to the application or independent contractor law. 42 Central Law Journal, 112.
    There is perhaps one exception in the list of authorities above referred to that may have some bearing upon our case. Hughes v. Percival, 8 Appeal Cases, 447.
    It would appear from the law of this Hughes v. Percival case that no matter whether the wall owned by the Bridge Company was sound and safe or damaged and dangerous in condition, yet it was in duty bound to see that due care was observed in taking the wall down.
    If the wall was safe when the contract was let to Hasler, the Bridge Company suffered the contractor to create a nuisance on its premises by undermining the wall, as described in the testimony, so that it was in danger of falling and consequently liable for the nuisance created, as the wall fell from weak condition. 7 Hurl. & N., 825.

      It is unnecessary in maintaining the cause of the. defendant in error to seek foreign authority, but as plaintiff’s counsel has gone into the field of English decisions it would be well to examine the case of Penny v. Wimbledon Urban Council, 2 Q. B., 212 (1898), where the principle is stated that when a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work done to see that the necessary precautions are taken, and if they are not taken he cannot throw his responsibility upon the contractor. This case really went off on another proposition. Pickard v. Smith (1861), 10 C. B. (N. S.), 470; Hardacker v. Idle Dist. Council (1896), 1 Q. B., 335.
   Minshall, J.

This case was argued and submitted with the case of the Bridge Co. v. Proctor D. Patrick, the injury in each case, and for which the action was brought, having been caused by the falling of a wall, attributed to the negligence of the defendant; Patrick, therefrom, having received an injury to .his person, and he and his partner, Steinbrock, an injury to their property. In the case of Patrick and his partner, the case was taken from the jury at the close of the plaintiff’s evidence, on the ground that there was no evidence to support the case. The judgment was reversed, on error, by the general term and cause remanded (4 N. P., 229); and error is prosecuted here to reverse the General Term. In the case of Patrick alone for an injury to his person, a verdict was rendered for the plaintiff, under the charge of the court, to which exceptions were reserved; and the judgment was affirmed by the General Term (5 N. P., 374). A bill of exceptions, taken and made a part of the record, in each case, contains all the evidence, and, also, in the last case, the charge of the court and certain instructions that were refused. Both cases, however, turn upon the question, whether the defendant below was relieved from liability on the ground of having employed an independent contractor to do the work, the negligent doing of which caused the injury complained of in each case.

In August, 1895, a large brick warehouse, some five stories high, was in a measure destroyed by fire, the walls of which, at least the east one, were left standing in such a ruined condition as to be dangerous to the public, and were required by the Inspector of Buildings to be taken down. The east wall extended south along an alley from its intersection with Second street some ninety or a hundred feet; and opposite to this wall, on the east side of the alley, was the property of the plaintiffs. After the notice by the Inspector of Buildings, the Bridge Company made a contract with one Hasler to take down the walls of the building for a consideration agreed on by the parties, the company retaining no express control of the work; but stipulating that Hasler, the contractor, should save it harmless in case of accident to person or property during the work. While engaged in taking down the east wall, a part of it fell and caused the injury sued for in each case. It was, from the time of the fire, a mere ruin, “bulged out,” as the witness termed it, toward the east, and manifestly dangerous to the public, of which the plaintiffs below, were part. It could, however, as shown by the testimony, by the exercise of great care, have been taken down without probable injury to others; and the falling of the wall, or a part of it, was caused by the negligence and want of skill on the part of the contractor in the mode adopted for taking it down. This is not controverted by the plaintiff in error. An attempt was made, after having weakened the wall on a line below the “bulge” to pull it in upon the premises by a rope, attached to it; but by reason of the “bulge,” that part fell outward over the alley and on the property of the plaintiffs, their property being lower - than the wall. This, as the evidence shows, might have been readily anticipated by a person of skill and experience in such business. Patrick was at the time in the part of his property on which the wall fell, and was injured, as was also the property of himself and partner. No fault is imputed to him, nor his partner.

The doctrine of independent contractor, whereby one who lets work to be done by another, reserving no control over the performance of the work, is not liable to third persons for injuries resulting from negligence of the contractor or his servants, is subject to several important exceptions. One of these, applicable as we think to this case, is where the employer is, from the nature and character of the work, under a duty to others to see that it is carefully performed. It cannot be better stated than in the language used by Cockburn, C. J., in Bower v. Peate (1 L. R. Q. B. Div., 321, 326), a leading and well considered case. It is, “That a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such cosequences may be averted, is bound to see to the doing of that which is necessary to prevent mischief, and cannot relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from which the danger arises or some independent person — or to do what is necessary to prevent the .act he has ordered done from becoming unlawful.” It was suggested by Lord Blackburn in Hughes v. Percival (8 App. Cas., 443) that this was probably too broadly stated. But in the recent case of Hardaker v. Idle District Council 1 L.R.Q.B.Div., (1896) 335 the doubt expressed by Lord Blackburn was regarded as unwarranted, and the principle as formulated by Cockburn, was adopted and applied. This does not abrogate the law as to independent contractor. It still leaves abundant room for its proper application. “There is,” as stated by Cockburn, “an obvious difference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can. arise, and handing over to him work to be done from which mischievous consequences will arise unless precautionary measures are adopted.”

The weight of reason and authority is to the effect that, where a party is under a duty to the public, or third person, to see that work he is about to do, or have done, is carefully performed so as to avoid injury to others, he cannot by letting it to a contractor, avoid his liability, in case it is negligently done to the injury of another. Bower v. Peate, 1 L. R. Q. B. Div., 321; Tarry v. Ashton, id. 314; Hughes v. Percival, 8 App. Cas., 443; Dalton v. Angus, 6 App. Cas., 829; Hole v. Railway Co., 6 H. & N., 488; Gray v. Pullen, 5 B. & S., 970; Hardaker v. Idle Dist. Council, 1 L. R. Q. B., Div. (1896) 335; Storrs v. City of Utica, 17 N. Y., 104; Spence v. Schultz, 103 Cal., 208; Sturges v. Theological etc. Society, 130 Mass., 414; Gorham v. Gross, 125 Mass., 232; Mechem on Agency, §§747, 748; Wharton on Neg., §185; Wood Master and Servant, §316; Sherman and Redfield on Neg., §176; Pickard v. Smith, 10 C. B. (N. S.), 470; Penny v. Wimbledon Urban Council, 2 L. R. Q. B. (1898), 212, 217; Halliday v. National Telephone Co., 2 L. R. Q. B. (1899), 392; Lawrence v. Shipman, 39 Conn., 586, 589; Stevenson v. Wallace, 27 Grat., 77; Water Co. v. Ware, 16 Wal., 566; Black v. Christ Church Finance Co. (1894), A. C., 48.

The duty need not be imposed by statute, though such is frequently the case. If it be a duty imposed by law, the principle is the same as if required by statute. Cockburn, C. J. Bower v. Peate, supra, at 328. It arises at law in all cases where more or less danger to others is necessarily incident to the perfoi*mance of the work let to contract. It is the danger to others incident to the performance of the work let to contract, that raises the duty, and which the employer cannot shift from himself to another, so as to avoid liability, should injury result to another from negligence in doing the work. In Bower v. Peate, supra, the defendant, whose house adjoined that of plaintiff, let to a contractor the taking down and rebuilding of his house, reserving no control of the work. The work let required the lowering of the foundations of the defendant’s house, and it was known that this would require the practice of underpinning, or some other safe mode of shoring or supporting the plaintiff’s soil, during the operations. Owing to neglect in this regard injuries accrued to the plaintiff’s house, which gave rise to the action; and on the principie above stated the defendant was held liable. In Hughes v. Percival, on appeal, the appellant and respondent were owners of adjoining houses between which was a party wall, the property of both. The appellant’s house also adjoined B’s. house and between them was a party wall. The appellant employed a builder to pull down his house and rebuild it on a plan which involved the tying together of the new house and the party wall between it and the respondent’s house, so that if one fell the other would be damaged. In the course of the rebuilding the builder’s workmen in fixing a staircase, negligently and without the knowledge of the appellant, cut into the party wall between the appellant’s house and B’s. house, in consequence of which the appellant’s house fell, and the fall dragged over the party wall between it and the respondent’s house and injured it. The cutting into the party wall was not authorized by the contract between the appellant and the builder; and it was held that the law cast a duty upon the appellant to see that reasonable care and skill were exercised in those operations which involved a use of the party wall belonging to himself and the respondent, exposing it to the risk above mentioned, and that he could not get rid of the responsibility by delegating the performance to a third person. Dalton v. Angus is a similar case to this and was ruled the same way. In Hardaker v. Idle Dist. Council, the defendant, under statutory authority, employed a contractor to construct a sewer for it. In consequence of his negligence in carrying out the work a gas main was broken and the gas escaped from it into the house in which the plaintiffs (a husband and wife) resided and an explosion took place by which the wife was injured in her person and the husband in his property, the defendant was held liable on the ground that it owed a duty to the public (including the plaintiffs) so to construct the sewer as not to injure the gas main, and that this duty could not be delegated to another so as to relieve it from liability for negligence. In Halliday v. Telephone Company, supra, the defendant employed a contractor to put in conduit tubes for it under a highway, and the joints of the tubing were to be soldered together with melted lead. By the negligence of the servants of the contractor in doing the work, melted lead, by an explosion, was splashed over the plaintiff on the public sidewalk, and the company was held liable. It is there said that, from the authorities, “it is very difficult for a person who is engaged in the execution of dangerous work near a highway to avoid liability by saying that he has employed an independent contractor, because, it is the duty of a person who is causing such work to be executed to see that they are carefully carried out, so as not to occasion any damage to persons passing by on the highway. I do not agree that this was a case of mere casual and collateral negligence within the meaning of that term, for it was negligence in the very act which Higmore was engaged to perform.” In referring to the English cases, Smith, L. J., in Hardaker v. Idle District Council, said, “The ratio decidendi of these cases is, that, as the duty was imposed upon the defendant by law, he could not escape liability by delegating the performance of the duty to a contractor, for the obligation was imposed on the defendant to take the necessary precautions to ensure that the duty should be performed.” Gorham v. Gross; Stevenson v. Wallace and Water Co. v. Ware, cited above, also clearly illustrate this distinction. In Packard v. Smith, the defendant was the .lessee of refreshment-rooms and a coal-cellar, and there was an opening for putting coal into the coal-cellar on the arrival platform at a railway station. The defendant employed a coal merchant to put coal into the cellar, and the coal merchant’s servant, while putting coal into the cellar, left the hole insufficiently guarded. The plaintiff while passing in the usual way out of the station, fell into the cellar and was injured. The defendant was held liable. In commenting on this case, in Penny v. Wimbledon Urban Council, Bruce, J., said: “The principle of the decision, I think, is this, that where a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and that if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor.” This principle seems to apply directly to the case at bar. The walls as they stood were a nuisance to the public; and taking them down would necessarily be attended with danger to others, unless care was observed in doing the work. This, though a misfortune, was an incident to the defendant’s ownership of the property, cast on him by the law, and which he could not shift to another without being liable for negligence in razing the walls.

Conformable to these principles the law seems settled in this state. In Circleville v. Neuding, 41 Ohio St., 465, the city let to a contractor the construction of a cistern in one of its streets, reserving no control over the work. The plaintiff, during the prosecution of the work, fell into it in the night and was injured, by reason of the neglect of the contractor to cause it to be properly protected. The city was held liable, because of its statutory duty in the premises. But, as already seen, the fact that the duty had been imposed by statute is not material. Its liability arises from the fact that it was its legal duty to cause the work to be protected, and could not delegate this duty to another so as to absolve it from liability. So, in Railroad Co. v. Morey, 47 Ohio St., 207, the defendant employed a contractor to do for it certain plumbing which involved the opening of the public highway for the purpose of laying a drain therein. The plaintiff in the night time fell into the ditch by reason of the negligence of the contractor in not properly protecting it. The defendant was held liable on the ground stated in the syllabus, which is as follows: “One who causes work to be done is not liable, ordinarily, for injuries that result from carelessness in its performance by the employes of an independent contractor to whom he has let the work, without reserving to himself any control over the execution of it. But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employe alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable, though the negligence is that of an independent contractor.” It is claimed that this proposition of the syllabus in Railroad Co. v. Morey should be modified. We see no reason for doing so. It is supported by reason and authority and many well considered cases. In so far as Clark v. Fry, 8 Ohio St., 358, may be construed as supporting a different doctrine, it is not law. It has been properly distinguished in Railroad Co. v. Morey. It should be confined to the cases where from the nature of the work or the circumstances under which it is to be performed, no particular duty is imposed on the party procuring the work to be done, to see that it is carefully done.

It is urged as unreasonable that one who has work to perform, that he himself cannot perform, from want of knowledge or skill, should be held liable for the negligence of one whom he employed to do it, since, if he did reserve control, it would avail nothing from his own want of knowledge and skill. There is a seeming force in this, but only so. It is not agreeable to the principles of distributive justice. For it is equally a hardship that one should suffer loss by the negligent performance of work which another procured to be done for his own benefit, and which he in no way promoted and over which he had no control. Hence where work is to be done that may endanger others, there is no real hardship in holding the party, for whom it is done, responsible for neglect in doing it. Though he may not be able to do it himself, or intelligently supervise it, he will nevertheless, be the more careful in selecting an agent to act for him. This is a duty which arises in all cases where an agent is employed; and no harm can come from stimulating its exercise in the employment of an independent contractor, where the rights of others are concerned.

Applying the principles discussed to the case under review, and there seems little room for doubt as to how it should be decided. The duty, as observed, was imposed by law upon the Bridge Company to take down the walls left standing by the fire, because they were a menace to the public and the property of persons in the vicinity. The doing of the work necessarily' involved danger to others unless great care was used; and the injury resulted from negligence in doing the work. It was not collateral to the employment, as would have been the case, had a servant of the contractor, while at work, negligently let fall a brick upon a person in passinb by (Pickard v. Smith, supra); on the contrary it resulted from the negligent manner in which the work let to be done was done, and should have been anticipated by the employer as a probable consequence, unless care was observed. It is the duty to observe such care, enjoined on a party by law, that cannot be delegated to another so as to avoid liability for its neglect.

There was no error then in the General Term reversing the judgment of the Special Term for taking the case from the jury. In the case of Patrick alone, where a verdict was rendered for the plaintiff under the charge of the court, we see no reason for reversing it. The charge properly stated the law, and the instructions asked by the defendant being inconsistent with the charge, were properly refused. The judgment in each case is therefore

Affirmed.


author: Williams, J.

text:
    Buffington, and another v. Bronson et al. Same v. Same.

      Indemnity bond — To surety of executor — Section 6208 Revised Statutes — Extent of liability of obligors — What constitutes consideration for bond — Obligors not released by stay of execution by consent of judgment creditor, when.

    1. An indemnity bond executed in pursuance of section 6208 of the Revised Statutes, conditioned that the obligors shall save and keep the obligees harmless from all loss or damage by reason of their being sureties on the bond of an executor, is not limited in its obligation, to such loss or damage as should arise from the failure of the executor to pay over money of the estate which came to his hands after its execution, but binds the obligors for any loss or damage sustained by the obligees on account of liability for the executor existing at the time of its execution and thereafter paid by the obligees.
    2. There is a sufficient consideration for such an indemnity bond in the fact that it is given in a legal proceeding in pursuance of an authorized order of a competent court, and is the means of continuing the executor in charge of the trust.
    3. The stay of execution for a definite time on a judgment recovered against the executor and sureties on his bond for his failure to pay over money of the estate as ordered on settlement of his account, though granted by the judgment creditor without the consent of the sureties on the indemnity bond, does not release them from their obligation to indemnify the obligees as sureties on the executor’s bond against the judgment.
    (Decided November 28, 1899.)
    Error to tbe Circuit Court of Defiance county.
    The facts necessary to an understanding of the cases are stated in the opinion.

      John W. Slough and J. D. Lamb, for plaintiffs in error.

      L. B. Peaslee, for defendant in error.
   Williams, J.

On the 20th day of November, 1893, the plaintiffs in error, J. P. Buffington and John Reuter, became sureties for Charles E. Bronson, on hi s bond as executor of the last will and testament of Maria Lehman, deceased, late of Defiance county. The bond was in the sum of one thousand dollars, and conditioned according to law. In March, 1894, they made their application to the probate court to compel the executor to render an account, and to indemnify them by bond, with sureties, against their liability. The application was sustained by the court, and, in pursuance of its order, Bronson with the other defendants in error as his sureties, executed and filed in the probate court on the 3rd day of April, 1894, the following bond:

“Know all men by these presents that wc, Charles E. Bronson, as principal, and J. M. Sanders and Emanuel Miller, are held and firmly bound unto J. P. Buffington and John Reuter, in the sum of eight hundred ($800.00) dollars, for the payment of which, well and truly to be made, we do hereby bind ourselves, our heirs, executors and administrators.
Witness our hands and seals this 31st day of March, 1894.
“The condition of this obligation is such, that Avhereas the above named J. P. Buffington and John Reuter are sureties for the said Charles E. Bronson, in a certain bond as executor of the estate of Maria Lehman.
“Now, therefore, if the said Charles E. Bronson shall save and keep the said J. P. Buffington and John Reuter harmless from all loss or damage by reason of being sureties on the said bond for Charles E. Bronson as such executor of the estate, then this obligation to be void, otherwise, to- be and remain in full force and virtue in law.
“Emanuel Miller.”
“J. M. Sanders,
“Charles E. Bronson,

. This bond was approved by the court on the 14th day of April, 1894, and the executor remained in office until the December following, when his final account was settled, and his resignation tendered and accepted, and Josiah McElroy appointed his successor. On the settlement of the executor’s account the court found there was a balance of $506.91, in his hands subject to distribution, one-half of which he had, on settlement of his first account, been ordered to pay to Mary E. Wank, who the court found was entitled thereto under the will, and the other half he was ordered to pay to his successor, the administrator de bonis non with the will annexed. Mary E. Wank, after due demand, brought suit against Bronson and the sureties on his bond, to recover the amount so ordered to be paid to her, and recovered judgment for the same, which, amounting, with interest and costs, to the sum of $284.14, was paid by the sureties. The administrator brought a like action to recover the amount which the executor was ordered to pay to him, and recovered judgment therefor, which the sureties on the executor’s bond also paid. These sureties, after the payment of the Wank judgment, commenced the first of the actions below, against the defendants in error, on the indemnity bond executed by them, to recover the amount which the plaintiffs had been compelled to pay in satisfaction of the judgment; and, after the payment of the judgment recovered by the administrator, commenced the second of the actions below, against the same parties, on the same bond, for the recovery of the amount paid on that judgment. The petitions alleged, substantially, the facts already stated. The answer in each, case set up as a defense, that the money, for the payment of which the executor was in default, on account of which default the judgments against the plaintiffs were recovered, came to the hands of the executor before the execution of the indemnity bond, and distribution thereof according to law had been ordered by the probate court on the settlement of a prior account of the executor ; and that, no assets of the estate were received by him after the indemnity bond was given; and furthermore, “that there, was no consideration at any time moving from said Charles E. Bronson, or the said plaintiffs for the execution and delivery of said indemnity bond.” In the second case the answer alleged as an additional defence, that at the time the judgment of the administrator was rendered against the plaintiffs in error, they extended the time for its payment for a period of sixty days, without the knowledge or consent of the defendants, and without any consideration to them. These allegations of the answers were put in issue.

The defendants prevailed in the trial court in both cases, and they are brought here on error to judgments of affirmance by the circuit court, and have been argued and submitted together.

The facts constituting the plaintiffs’ cause of action, in each of the cases, were established on the trial by the records of the probate and common pleas courts, and the sheriff’s execution docket. The defendants introduced in evidence, an entry on the records of the probate court, showing that on the settlement of the executor’s first account, in December, 1893, a balance of $506.91 was found in his hands subject to distribution, one half of which he was then ordered to pay to Mary E. Wank, “and keep the remainder of said $506.91, invested on interest with good and sufficient security, and to pay to the said Samantha McElroy, the interest thereon from time to time, as required by the terms of said will and bond, reducing the remainder of the property and choses in action in his hands into money, and to report his proceedings to this court, together with such further report as the law may require.” This balance so found in the hands of the executor and ordered distributed, remained undistributed by him when his final account was settled in December, 1894; and on that settlement he was charged up with the whole amount, and an order of distribution thereof then made as has already been stated.

The question is thus presented whether the defendants are bound to indemnify the plaintiffs as sureties on the executor’s bond, against loss or damage suffered by them in the payment of liabilities arising from the failure of the executor to make proper distribution of money undistributed when the indemnity bond was executed, and which was thereafter, on settlemet of his final account, found to be in his hands, and then ordered to be paid by him according to law and the will, it being shown that he had theretofore received the money and been ordered on settlement of a prior account to make distribution and investment of the same; or, are they bound only for such liabilities as the plaintiffs should incur from the failure of the executor to make proper application of moneys and effects of the estate which came to his hands after the execution and approval of the indemnifying bond?

The indemnity bond was executed and approved in conformity with section 6208, Revised Statutes, which provides that: “If any executor or administrator shall waste, or unfaithfully administer the estate, the court granting the letters may, if it thinks fit, on the application of any surety in the administration bond, order such executor or administrator to render an account, and to execute to such surety a bond of indemnity, with surety or sureties approved by the court; and upon neglect or refusal to execute such bond of indemnity, within the time ordered by the court, it may remove him, and revoke his letters testamentary, or letters of administration, and appoint another administrator in his place.”

The statute, in requiring, as part of the proceeding for obtaining the bond, that the executor shall render an account which may show waste or unfaithful administration, seems to contemplate that, as a condition of his right to continue in charge of the trust on the responsibility of the sureties on his bond, he shall indemnify them against such liabilities as his account may disclose, and all then existing, as well as those that should thereafter arise from his default. And there is reason why the indemnity bond should have that operation, if a fair construction of its condition will warrant it. If the bond be not given, the executor is subject to immediate removal, and, in that event, his sureties might at once seek and obtain ample indemnity and protection against all liabilities growing out of their suretyship relation. This remedy they are induced to forego by the giving of the indemnity bond, the purpose of which is to prevent the removal of the executor and protect his sureties against any loss for which he would be answerable to them. And in this, as well as in the fact that the bond is given in a legal proceeding connected with the settlement of the estate, under an authorized order of a court having jurisdiction of the persons and subject matter, adequate consideration is found for the bond, and the obligation of the sureties thereon, as indicated. It is not intended to hold that the statute will not permit a bond which limits the obligation of the makers to such loss or liability only as should arise from the failure of the executor' to properly pay and account for moneys or assets of the estate that should come to his hands after its execution, or, that when so made, the sureties on it could be held beyond its terms. The bond in question here is not so limited. Its condition is “to save and keep” the obligees harmless from all loss or damage by reason of being sureties on the bond of Bronson as executor of the Lehman estate, and therefore, in terms, binds the makers of the bond to indemnify the obligees against any loss or damage which the latter should sustain by the payment thereafter of any existing or future liability arising out of their relation as sureties on the executor’s bond. In Foster v. Wise, Admr., 46 Ohio St., 21, the court held that where, after assets of an estate had been converted by an administrator to his own use, he was required to, and gave a new administration bond, the sureties thereon were bound for his indebtedness, so incurred, to the estate. In Corrigan v. Foster, Admx., 51 Ohio, St., 225, this decision was approved, and the sureties on the new bond were allowed recourse for their reimbursement, on the former administration .bond. If when the new bond was given, the sureties thereon had obtained a bond, of indemnity against all loss or damage by reason of their becoming such sureties, it can scarcely be doubted that the makers of the indemnity bond would have been bound for the amount thereafter paid by the sureties on the new administration bond in satisfaction of such prior liability of the administrator to the estate. And, it is certainly not less clear that the bond executed by the defendants in the cases before us, requires them to pay the plaintiffs the loss they sustained by the payment of liabilities of the executor existing when the defendants gave their' bond of indemnity. When that bond was given the suretyship of the plaintiffs for Bronson had already existed for a considerable time, and it was probable that liabilities for his default had then been incurred; so that, the inference would seem stronger that it was the intention of the bond to cover such liabilities, than if the plaintiffs had first become sureties for Bronson when the indemnity bond was given. While the promise of the obligors was to be performed in the future, it was, in effect, that they would be responsible for all damages sustained by the obligees on account of their existing surety-ship. The balance which the executor was ordered to distribute, on the settlement of his first account, remaining in his hands undistributed when the indemnity bond was given, was then in contemplation of the law, in his hands to be administered. The damages, to recover which the plaintiffs brought their actions below, were damages sustained by them in the payment, after the execution of the indemnity bond, of liabilities that arose by reason of their being sureties of Bronson as executor, and the obligation of the defendants therefor, is therefore within the express terms of the bond.

As has already been noticed, the answer in the second case plead as a further defence that, at the time of the rendition of the judgment in favor of the administrator, which the plaintiffs alleged in their petition they had paid, “ the payment of the judgment so rendered was extended by said plaintiffs for a period of sixty days, without the knowledge or consent of these defendants, and without any consideration moving to them therefor at the time, and that by reason of said extension these defendants were and are released from all and every liability upon the claim and cause of action mentioned in the petition.”

This answer is insufficient as a defense, because it fails to allege any consideration, or valid agreement, for the extension of time, or that it was entered of record. Woolworth v. Brinker, 11 Ohio St., 593; Brandt on Suretyship, Sec. 377. The plaintiffs nevertheless replied to the defense, and the evidence given in its support consisted of the following statement appended to the journal entry of the judgment : “And by agreement of the parties, execution is stayed sixty days.” If this statement in the entry were regarded as importing a valid agreement made on sufficient consideration, which would prevent the issue of an execution on the judgment within the specified period, it would not, in our opinion, operate to release the defendants from their obligation on the indemnity bond. They were not sureties to the plaintiff in the judgment by whom the stay of execution was granted; nor, was he their creditor; nor was the bond involved in that ac-' tion. Neither were the sureties on the executor’s bond against whom the judgment was rendered, at that time creditors of the defendants here, the sureties on the indemnity bond. The obligation of the latter was not to pay the judgment creditor if the executor and his sureties failed to do so, but was to pay the sureties whatever they should be required to pay on the judgment, and, therefore, until payment by them they did not, and conld not, become creditors of the sureties on the indemnity bond, nor yet of the executor. So that, when the stay of execution was granted, the plaintiffs here were not creditors thereby extending time to the principal debtor, but were themselves debtors receiving an extension, if the stay of execution amounted to such extension. Hence, the relation did not then exist between these parties that is necessary to the proper application of the rule which discharges a surety when a valid agreement is made without his consent, between his principal and the creditor, for an extension of time for the payment of the debt.

Then, payment of the judgment immediately upon its rendition, or within sixty days thereafter, was not essential to the plaintiff’s right of action on the indemnity bond; and, since their right could not accrue until its payment by them, delay on the part of the judgment creditor in enforcing payment by execution, might result in advantage to the sureties on the bond. But, whether it would or not, the stay of execution for any period, could not prevent the sureties in the judgment from malting payment without execution at any time during the stay, nor deprive them of their remedy against the property of the principal for reimbursement, or on the indemnity bond. And, as the sureties on that bond were not parties to the judgment, it is not apparent how any right they might have to pay the judgment, or any remedy of theirs against Bronson, was impaired or suspended by the stay of execution granted by the judgment creditor. The reason of the rule invoked is therefore lacking in this case.

The case of Way v. Hearn, 108 C. B. (N. S.), 774, is closely analogous, in principle, to this one. There the Bank was creditor, Read principal debtor, Way his surety, and Hearn agreed to pay the surety half of any loss he might sustain in the transaction. After the maturity of the debt, by agreement between the creditor, principal, and surety, without Hearn’s knowledge, the time of payment was extended by renewal of the obligation. Way was compelled to pay the debt on maturity of the renewal, and then sued Hearn on his indemnity agreement, for half the amount. Hearn answered that he was released by the extension. The court held he was not: that the case did not come within the rule by which a surety is discharged by giving time to the principal.

The judgments below are reversed. And, as there is no dispue about the material facts, final judgment may be rendered here for the plaintiffs in error.

Judgment accordingly.

Speah, J., dissents from the first and third paragraphs of the syllabus and from the judgment.


author: Shauck, J.

text:
    The Baltimore & Ohio Railroad Co. v The Diamond Coal Co.

      Freight rates by railroad company — Discrimination of — Prohibition as to rebates — Sections 3366 and 3367 Revised Statutes — Promise to repay cannot be enforced.

    1. A railroad company whose line extends to a point of intersection with a canal of the state cannot make a valid contract to repay to a shipper a portion of the freight paid by him, it being the regular rate posted by the company and received from other shippers, such contract being prohibited by sections 3366 and 3367 of the Revised Statutes, to prevent discrimination in rates of carriage. (Scofield v. Railroad Co., 43 Ohio St., 571, followed and approved.)
    2. An action cannot be maintained to enforce a promise of such repayment.
    (Decided November 28, 1899.)
    Error to the Circuit Court of Muskingum county.
    The Coal Company brought suit in the court of commoh pleas to recover from the railroad company on a petition whose material allegations are as follows:
    On or about May 10th, 1877, the defendant — to enable plaintiffs to sell their coal to persons at Columbus, Ohio, and at points beyond that, at lower prices than they otherwise could, and thereby to compete successfully in their said business with other shippers of coal on other roads to said points; and to induce plaintiffs to make such sales and to ship, or cause to be shipped, such coal so sold over defendant’s lines of road to such points, whereby defendant might earn and receive freightage thereon — agreed with plaintiffs to transport all coal which they should thereafter so sell and so ship, or cause to be shipped, from points on said Straits-ville Division, to Columbus and points beyond, including Springfield and Dayton, and to charge those liable to pay the freight thereon, at the rate of one dollar per ton freightage. And defendant then and there further agreed with plaintiffs, that in consideration of the said business, so to be furnished defendant by plaintiffs, and the profits thereof to defendant, the defendant would pay plaintiffs in monthly payments, for each «and every ton of coal which they should thereafter so sell and so ship, or so sell and cause to be so shipped, the sum of fifteen cents; which sum, so to be paid, was, in said business, and in the said transaction, called by the said parties a “rebate.”
    Said agreement remained in full force continuously from said 10th of May, 1877, to the 30th of June, 1878; during which time, from May 10, 1877, to March 1, 1878, plaintiffs, relying upon said agreement and promise of defendant, were thereby induced to sell and ship, and, in pursuance of said agreement and promise did sell, to persons at Columbus, and at points beyond, at prices lower than they otherwise could have sold without loss, and did ship, and cause to be shipped, from said Bristol Station, and over the lines of defendant’s road, to Columbus and points beyond, large quantities of coal, on which the freightage was by the consignees thereof duly paid to defendant; and on which the said rebate at the rate aforesaid, under the agreement aforesaid, amounts to $1035.90; of which amount the defendant paid plaintiffs, during said time, the sum of $500.70, but refused, and still refuses, to pay the balance thereof.
    By reason of the facts hereinbefore alleged, there is due from defendant to plaintiffs, the sum of five hundred and thirty-five dollars and twenty cents ($535.20), with interest at 6 per cent, per annum, from June 19,1878; for -which sum and interest plaintiffs ask judgment against defendant.
    The railroad company answered, setting up the following second defense:
    And the defendant further says, that its line of railroad extends from the points designated in said amended petition, to-wit: Bristol station in the county of Perry, in the State of Ohio, to the city of Columbus, in said state; but does not extend to either the city of Springfield or Dayton, and that its said road intersects the navigable canals of the state, at the said city of Columbus, in the state of Ohio, and also in said county of Perry, and also in the county of Licking, in said state.
    And the defendant further says, that the rates charged and collected upon the coal shipped for the plaintiffs during the period named in said amended petition, to the city of Columbus and points beyond, to-wit: Springfield and Dayton and other points were its regular, established, tariff rates for such service (shipping coal), and were the regular rates which the defendant during the period named in said amended petition, charged to its other customers and the public, for shipments (of coal) between said Bristol station and said city of Columbus and other points beyond named.
    To this defense the coal company demurred. The demurrer was overruled in the court of common pleas and, the coal company not desiring to plead further, final judgment was rendered dismissing its petition. On petition in error by the coal company the circuit court reversed the judgment of the court of common please.

      J. H. Collins and F. A. Durbin, for plaintiff in error.

      This is an action to recover a balance dne under a contract to pay the plaintiff rebates on freights shipments over the defendant’s line.
    The second defense shows that the line of road of the Baltimore & Ohio railroad connects with the navigable canals of the state, and that the rates charged and collected for .the coal shipped by the plaintiff were its regular established tariff rates for such services and were the regular rates which the defendant company charged its other patrons for like services.
    These allegations are in accordance with Sec. 3366 of the Revised Statutes. Sec. 3367 provides for the publication of the rates so established and further provides that the statutes shall not be evaded by drawbacks, rebates, etc. Sec. 3373 contains the long and short haul clause and a penalty for its violation.
    It was contended by the plaintiff that because this answer does not set up the publication of those rates that it is no defense. Sec. 3366 provides for the fixing and establishing of tariff rates. Sec. 3367 provides for two things; one is for the publication of the rates so fixed; and the other is a prohibition against charging less than that rate.
    The question presented by this demurrer is whether the contract set out in the petition, when viewed in the light of the allegations of this second defense is a valid contract, to the enforcement of which the courts will lend their aid. We claim it makes no difference whether the railroad company published their rates or not, the thing the law aimed at was “equality” and the destruction of unfair discrimiations; in other words, the common carriers should be in fact the common carriers and should carry for all alike. The law was enacted to prevent railway companies from doing the exact thing the plaintiff in this action is attempting to enforce through the court. 56 Fed. R., 21.
    The pleadings in this case show that the rates charged for the coal hauled for plaintiff were the •regular established tariff rates of the defendant and were the rates other shippers were paying. It also appears that by this rebate the plaintiffs were in fact getting a less rate on their coal than other shippers were getting on theirs, so that it was a clear case of discrimination in the rates in favor of the plaintiffs. It was not an executed contract but an executory one, for the entire amount of the fixed tariff was paid upon this coal and the plaintiffs depended upon an executory contract by which the defendant agreed in effect to refund to them a part of the freight so paid, and the plaintiffs are here now seeking to enforce that executory contract. .The question is then presented for consideration, will the courts lend their aid to the enforcement of such a contract?
    We claim that that contract is against public policy, and against the direct provisions of the Ohio Statutes and will not be enforced by any court.
    A discriminating rate on shipments of coal can not be justified on the ground of the cost of mining-coal to the company in whose favor the rate is made. Union Pacific R. Co. v. Goodridge, 149 U. S., 680; Union Pacific R. Co. v. Taggert, 149 U. S., 698.
    An analogous case has been before this court in the case of Scofield v. Railway Company, 43 Ohio St., 571.
    In determining the main question in this case the courts will not consider whether the defendant gets any advantage of the plaintiff in the transaction, but when the court determines the contract is against public policy, then we insist it will leave the parties where it finds them. The statutes of Ohio clearly prohibit such a contract as is set out in the petition and the answer. That is, the statutes prohibit the railway company from doing the very thing the plaintiff is here insisting upon. It is not necessary that the statute should declare the contract to be void. It is only necessary that it should prohibit it, or that it should be prohibited on the grounds of public policy. Hote v. Green, 13 Am. Rep., 737.
    To the same effect is the case of Fowler v. Sculley, 13 Am. Rep., 699; Hall v. Coppell; 7 Wallace 542; Guernsey v. Cook, 120 Mass., 501; Marshal v. R. R., 16 Howard, 314; Bishop v. Palmer, 16 N. E. Rep., 298; Nestor v. Continental Co., 41 Am. St. Rep., 894.
    We claim from the foregoing authorities:
    1st. The contract for the payment of the rebate which made the freight on the plaintiff’s coal less than the regular established rates, and less than that paid by the other shippers was,
    a. Contrary to public policy and void.
    b. In direct violation of both the letter and the spirit of the Ohio Statutes, and void.
    2nd. The contract being against public policy the courts will not lend their aid to its enforcement, and it is no objection to this position to say that it works to the advantage of the defendant. The object of the law is to prevent discrimination and to benefit the public, and if, in its refusal to enforce a contract against public policy, -a defendant in the action is benefited it is simply an incidental benefit that accrues to him by reason of the court’s enforcing the law and refusing relief to a party who grounds his actions upon a contract prohibited by statute as well as by every principle of public policy and common justice to the public.

      Beard & Beard, for defendant in error.
    This is what is called a “discrimination” case.
    This contract is not immoral. The freight charge was the customary rate. The purchaser agreed to pay, and did pay it, on the price. It was not fraudulent as to them, and it was a private matter between this plaintiff and defendant and does not concern any. one else, and it worked no injury to anyone.
    For ten moths next after the making of this contract the defendant performed it on its part, except making the payments in full, although it received the freight in full as the coal was delivered. This defendant is the only one complaining of this contract, and it is in no way injured except in its imagined dignity, and it asks this court to place a stigma upon its act for being a party to a contract which is scorned by the public, as it alleges, and inflict upon it the degrading punishment of leaving it where it finds it, with about $1200 of our money in its pocket, thereby putting an end to this case at the costs of this plaintiff.
    The petition says that this contract was in force more than thirteen months, and was being performed by both parties through nearly the ten first months. The rebate was to be paid monthly, but it was not done; but during that time payments of rebate were made aggregating $500.70. This money could not have been thus appropriated without the knowledge of this defendant, and it would not have been, without this defendant’s consent. The petition says the defendant was a party to the contract, and that the defendant made the payments; and no matter who represented the defendant in the making- of the contract, it adopted his act by hauling the coal, collecting the freight, and making partial payment.
    May this defendant be heard, under these circumstances, when it comes into court and asks that it may be allowed to keep this money, because it obtained it by a contract which is void on the ground of public policy; Ex parte Benson, 18 S. C., 38; Johnson v. P. & P. R. R. Co., 16 Fla., 623; 12 Gray, Mass., 393.
    If this defendant had refused and failed to comply wtih all the provisions of 3366, and 3367, could any action or proceeding have been maintained against it for the noncompliance? These two sections, as well as the other eleven, were intended as penal statutes. Is any penalty attached to, or provided for, in case of non-compliance with the provisions of 3366 or 3367? If so, where is it? It is not named in either of the two sections. It is not contained in 3370 and 3371, for the penalties therein named are expressly limited by 3371 to the three sections which immediately precede it. There does not seem to be any penalty attached for noncompliance with 3372. The penalty named in 3376 is limited by it to the two sections which immediately precede it, and they are sufficiently comprehensive to fix the maximum rates on all railroads then in the state, except the provisions of Sec. 3377. The penalty named in 3376 is for charging, or receiving a higher rate than is fixed by law, and certainly has no application or reference to any rate fixed, or to be fixed by a railroad company, as 3374, 3375 and 3378, fix the maximum rate, and no railroad company may fix a higher rate. The marginal note to Sec. 3376 (R. S., 1890), and the black letters to the same section, in the last revision, say the penalty named in 3376 applies to Sections 3374, and 3375. It probably includes 3378.
    Section 3373 names a penalty for the violation of its provisions; and that penalty is for charging, or receiving a higher rate on one shipment than on another, over the same line of road, where the freight is of the same class or kind. Section 3373 is not correctly copied in the report of the Scofield case (43 Ohio St., 615), as the word “such” is omitted, making it read “every violation of law,” instead of “every ‘suck’ violation of law,” which makes it apply to the provisions of 3373 only, which of course includes all of what 3373 relates to. There are two penalties named in this section — the one, to the aggrieved party, the other to the state. But, is there, in fact, any penalty? It may possibly provide for the $25 penalty which is to go to the party aggrieved, and is independent of the other one named; but do not both, as to their enforcement, depend upon the same contingency? for evidently the last one does depend on a contingency, and it is submitted, that for that reason, it is not a penalty. Before any prosecution can be commenced the complaint must be made to the prosecuting attorney of the proper county, and he must be satisfied that the provisions of the section 3373 have been violated, thus making its enforcement depend entirely on the discretion, the whim, or caprice, the favor or the disfavor, or the bias, or prejudice of a prosecuting attorney. A dozen persons might refuse and fail to comply, and one or none be prosecuted, or one or all be proceeded against. Certainly that is not the certainty which the law demands. C. & A. R. R. Co. v. The People, 67 Ill., 11; T. W. & W. R. R. Co. v. Elliott, 79 Ill., 67.
   Shauck, J.

On behalf of the plaintiff in error lit is contended that in view of the facts alleged in the second defense, the contract set ont in the petition is void because it is contrary to public policy and violative of the provisions of our statute (sections 3366 et seq.) prohibiting discriminating rates of carriage. These questions have been the subject of many decisions, those made prior to the year 1885 being collected and analyzed in Scofield v. Railway Co., 43 Ohio St., 571, where a contract contemplating such discrimination in the rates of carriage was held to be unlawful, and further discrimination enjoined. It was there also held that the provisions of statutes and special charters prohibiting such discriminations are but declaratory of the common law. A more recent discussion of the question may be found in Union Pacific Ry. Co. v. Goodridge, 149 U. S., 680.

The remaining question is whether the carrier’s contract to repay to the shipper a portion of the regular rate of carriage by him actually paid to it can be enforced by action. Since the amount actually paid by the coal company was the regular rate posted for the carriage and paid by other shippers, it is obvious that the stipulation counted upon in the petition is that which renders the contract illegal. That courts organized to enforce the law will not lend their countenance to a claim founded upon its violation has been long and uniformly held, except in thosé cases where a departure from principle is required by statute. A consideration of the moral right of the carrier to retain money which it has agreed to repay would only divert attention from the merits of the case. A recovery in such case is not denied because of any supposed rights of the promissor, but out of that respect for the law in which the courts should not be wanting, although the parties may be. The recovery will be denied however and whenever the illegality of the contract upon which a recovery is sought may be made to appear. The defense need not be interposed by the promissor. It could not be effectually waived by him. As was said by Justice Swayne in Coppell v. Hall, 7 Wall., 542: “Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted with the vice of the original contract, and void for the same reasons.”

Judgment of the circuit court reversed and that of the common pleas affirmed.