author: Day, J.

text:
    Lahm et al. v. Johnston.
    1. An assignment for the benefit of creditors, devotes all the property covered by it to the creditors who have their claims allowed pursuant to the act regulating the administration of assignments, to the exclusion of those who do not.
    2. In an action by a creditor whose claim has been duly allowed, on an assignee’s bond for a failure to account for any of the property assigned, the amount of recovery can not be limited to an amount proportionate to the whole amount of the claims of all the creditors, including those not allowed, as required by the statute, but the amount of recovery must be controlled by the proportionate amount of his claim to the whole amount of those only which have been presented and allowed pursuant to the statute.
    Error to the Court of Common Pleas of Stark county; reserved in the district court.
    The original action was brought by "William Johnston against John Lahm, U. R. Feather, and H. R. Wise, in the Court of Common Pleas of Stark county, on a bond for $50,000, given by Lahm, as assignee of Nixon & Co., with the other defendants as his sureties, conditioned that the said Lahm should well and truly, and according to law, perform all and singular the duties devolved upon him in the acceptance of the trust, and truly and correctly account for and pay over all moneys that came to his hands as such assignee.
    The assignee .entered upon the discharge of his duties, April 20, 1871, and received a large amount of property under the assignment. On the 2d day of September, 1871, the plaintiff presented his claim of $1,100 against the assignors, duly verified by his oath, to the assignee for allowance ; but the same was rejected by the assignee. He thereupon brought suit against the assignee for its allowance pursuant to the statute, and the court ordered the assignee to allow the claim as a valid one against the assets of Nixon & Co. in his hands.
    After more than eight months had elapsed from the time of the acceptance of the trust by the assignee, the plaintiff demanded payment, which was refused by the assignee. The plaintiff thereupon caused a citation to be issued by the probate court to compel him to settle and account for the assets in his hands as such trustee, which he neglected and refused to do. The assignee .having transferred all the assets back to the assignors, the plaintiff brought this suit on the bond.
    According to the inventory filed by the assignee, the assets of Nixon & Co. that came to his hands amounted to $77,252.32, and the debts amounted to $238,098.02, as shown by the books of the company. Only about $40,000 of the debts were presented to the assignee for allowance pursuant to the statute.
    As to the disposition of-the property, the assignee testified, on the trial, as follows:
    “ On the 13th day of July, a. d. 1871, about three months after I was appointed trustee, the creditors who represented at least. $236,000 of the indebtedness of said Nixon & Co., came to me in person and exhibited to me their claims, and requested me to reconvey and redeliver to said Nixon & Co. the property and effects included in their'assignment, and gave me written releases from all liabilities or damages on account of tlieir claims, if I would so redeliver to said company the property assigned by them. As there were only about $2,000 of debts against said company not so represented, and as Nixon & Co. agreed to protect me against any liabilities on .their account, I consented to, and did, on the said 13th day of July, reconvey and redeliver to said company all the property assigned by them, except about $400, the costs of administration.”
    On cross-examination of the witness, defendants offered to prove that legal and valid debts of Nixon & Co., amounting to $198,000, over and above the $40,000 which had been presented to the trustee duly sworn to according to law, and which existed at the time of the assignment of Nixon & Co., were presented to the trustee by the bona fide creditors of Nixon & Co. before the time had expired in which creditors had to present their claims, verified according to law, under an arrangement they had with Nixon & Co. to have the assignment vacated, and the property reconveyed to Nixon & Co., but did not propose to show that said $198,000, or any part thereof, had been verified according to law, and admitted that they were not; whereupon the plaintiff objected to the admission of said testimony, which objection was sustained by the court; to which opinion of the court the defendants excepted.
    Defendants also, ’on cross-examination of said witness, offered to prove that the assets of Nixon & Co., in the hands of the assignee, would not have paid over thirty cents on the 6dollar of the indebtedness of said company, had the trustee gone on and executed the assignment, and settled up the estate, and had the creditors presented their claims verified according to law; whereupon the plaintiff objected to the admission of said testimony, which objection was sustained by the court; to which ruling of the court the defendants excepted.
    And thereupon the defendants offered to prove that the assets of Nixon & Co., in the hands' of the assignee, would not pay over thirty cents on the dollar of the indebtedness of Nixon & Co.; whereupon the plaintiff objected to the admission of said testimony, which objection was sustained by the court; to which ruling of the court the defendants excepted. :
    “ "Whereupon defendants asked the court to charge the' jury that, in ascertaining the amount due the plaintiff, they must find the value of the assets assigned by Nixon & Co., and the amount of the indebtedness of the company, and that the plaintiff will be entitled to recover only bistro rata share of such assets; which the court refused to charge; but the court did charge the jury that, in arriving' at the amount of damages, they should find the aggregate amount, of the debts of Nixon & Co., that had been pre- ■ sented and filed with the defendant, Lahm, as assignee, with an affidavit made and filed therewith, setting forth that the; said claim or claims were just and lawful, and showing what collateral or personal security, if any, the claimants' had or held for the same, or that he had no security whatever; then find the amount of assets in the hands of, or-that came to the hands of, the defendant, Lahm, as assignee of Nixon & Co.; then find the amount that defendant could have paid upon each of said claims presented as aforesaid; and that they should consider no claim except it was filed and sworn to, as stated, as entitled'to participate in the distribution of the said assets or fund, and that the amount so due on plaintiff’s claim would be the amount of his damages in this action ; to which refusal and charge the defendants excepted.”
    The jury returned a verdict in favor of the plaintiff, for the full amount of Ms claim, upon which the judgment was rendered; thereupon the defendants prosecuted their petition in error in the district court, to reverse the judgment, on the ground that the common pleas erred in its rulings in regard to the admission of testimony, and in its charge to the jury.
    The case was reserved in the district court for decision in the supreme court.

      W. C. Pippitt, for plaintiff in error.

      A. L. Jones, for defendant in error.
   Day, J.

The right of the plaintiff below to recover is not disputed. The controversy relates to the amount of the recovery. It is conceded that the assignee neglected and refused to account for any of the trust property, as required by the condition of his bond. The statute provides that “ any person injured by the misconduct or neglect of duty of the assignee in regard to said trust, may bring an action thereon, in his own name, against the assignee and his sureties, to recover the amount to which he maybe en titled by reason of the delinquency.”

The question then is, how shall the amount be arrived at, to which the plaintiff was entitled by reason of the delinquency of the assignee. The amount of the assignors’ indebtedness greatly exceeded that of their assets; but the amount of the assets in the hands of the assignee exceeded that of all the claims which were presented to and allowed by him when he transferred all the trust property back to the assignors. This action of the assignee, it is true, was in compliance with the request of a large majority of the creditors ; but, so far as shown by the record, was not consented to by the plaintiff.

It is claimed, in behalf of the defendants below, that the plaintiff was entitled to recover so much only as he would have received if the trust property in the hands of the assignee had been distributed to all the creditors of the assignor in proportion to their respective claims. This position can be sustained only upon the assumption that an assignee is bound to distribute the assets pro rata among all the creditors, whether their claims are presented and allowed, as required by the statute, or not, and that the creditors, whose claims are so presented and allowed, acquire no rights superior to those who do not conform to the requirements of the law. This claim is untenable. In Haskins v. Alcott, 13 Ohio St. 210, it was held that the “ assignment devotes all the property covered by it to the creditors presenting tbeir claims in pursuance of the statute;” that the act in relation to assignments “ regulates the administration of the assets assigned, and points out the mode in which a participation therein may, and indeed must, be sought;” and that “ if a creditor does not acquiesce, his claim and his remedies thereon still remain, save that he can not appropriate the assigned property to its payment, except in the manner and proportion therein prescribed.” This is undoubtedly a correct exposition of the statute. The creditors, then, who proved their claims, and had them allowed, pursuant to the statute, and w'ho did not release their right in the trust, were, to the extent of their respective claims, entitled to the property assigned, to the exclusion of those who did not acquiesce in the assignment, and have their claims allowed under the law, and -who had, moreover, relinquished whatever contingent right they might have had under the assignment.

The several rulings of the court below were substantially in accordance with this view of the case.

Judgment affirmed.


source: Caselaw Access Project

author: JonNSON, Chief Judge.

license: Public Domain

text:
    Drea v. Carrington et al.
    1. An action to recover damages under an act requiring compensation for causing death by wrongful act, neglect, or default (2 S. & 0. 1139), may he brought in any county in the state where the defendant, or any one of the defendants, resides or may he served.
    2. In such case, where there are several defendants, against all of whom good cause of action is alleged, some of whom are served in the county, and others reside and are served in another county than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the persons of the non-resident defendants, depends upon the truth of the allegations of the petition.
    8. Where the allegations of the petition upon its face make a case in which all the defendants are rightfully joined, and service is made on one or more in the county where the suit is brought, and on the others in another county, the question of the jurisdiction of the court over the persons of the defendants served in such other county, must be raised by answer, under sections 87 and 89 of the civil code.

      4. Where the non-resident defendants file a motion to dismiss for want of jurisdiction over them, and support it by a verified answer, as provided by section 89 of the civil code, traversing the allegations of the petition, by showing that such non-residonts are not rightfully joined as defendants, the issue of fact thus presented, in an action for the recovery of a money judgment, is one which either party has a right to have, tried by a jury.
    5. In such a case, it is error for the court, without the assent of the parties, to hear and determine this issue.
    Error. Reserved in the District Court of Cuyahoga county.
    On the 1st day of May, 1873, the plaintiff in error commenced an action in the court of common pleas against the defendants in error, Miles D. Carrington, William Casey, and John Cunningham, to recover damages against the said defendants for cansing the death of Richard Conway, by tbe negligence and wrongful acts of said defendants.
    The petition charges, “ that said defendants, on tbe 30th day of April, 1873, were the owners of and in control of a schooner, or sailing vessel, called tbe 1S. D. Hnngerford,’ filled witb iron ore, and lying at the docks of tbe Atlantic and Great Western Railroad Company, in Cleveland, being unloaded by the said Richard Conway and others, wbo were then and there unloading in the employment of said railroad company. That, for tbe purpose of enabling said Conway and others to unload said vessel, and remove the ore aforesaid from her, the defendants, personally and by tbe aid and means of their agents, servants, and employes, erected upon said vessel an apparatus for hoisting said ore therefrom, which apparatus consisted mainly of a set of pulleys and tubs. That such apparatus was wholly insufficient for tbe purpose for which it was erected and used. That said Conway, relying upon said apparatus being properly put up, erected, fastened, and secured, was, upon the day last aforesaid, engaged in unloading said ore with the same, and was dumping the ore, when said apparatus, by reason of being improperly and insecurely erected, fastened, and secured, gave way and broke, and without any fault, negligence, or carelessness on his part, the pulley block of said apparatus fell down, and in its fall with great force and violence hit said Richard Conway on the head and .wounded him so severely that he died from the effects of such blow within about four hours after receiving the same.” . . . “ That the said defendants were then the owners of said schooner, and in charge thereof, and of such machinery and apparatus, and in consequence of their wrong and negligence as aforesaid, said Richard Conway was fatally wounded and injured as aforesaid.”
    The petition contains other allegations in regard to the family of said Richard Conway, deceased, and other allegations not necessaryhere to be noticed..
    A summons was issued to the sheriff’ of Cuyahoga county and served upon John Cunningham, one of the defendants, and he appeared and filed his answer to the petition. At the same time that the summons was issued and served upon Cunningham in the county of Cuyahoga, another summons was issued and served upon the defendants Carrington and Casey in Lucas county ; and, thereupon, the defendants, Carrington and Casey, filed' a motion to set aside the summons and dismiss the petition as to them. It sets forth, as the grounds for dismissing the proceedings, First. That the said John Cunningham has never had any interest in said schooner “ Hungerford,” her-earnings or profits; that he was, at the date mentioned in plaintiff's petition employed by Carrington and Casey as captain of said vessel, at a fixed salary; that neither said Carrington nor Casey were at Cleveland on any of the dates mentioned in the plaintiff’s petition, nor have either of them any personal knowledge of, or connection with, any of the said transactions in said petition stated. Second. Said Carrington and Casey have been for many years past residents of said city of Toledo, in Lucas county, Ohio; no summons in this case has been served upon either of them in said county of Cuyahoga, and the said Carrington and Casey offer in support of this their motion, affidavits in the form of an answer to the plaintiff’s petition.
    In support of this motion, they also file an answer. They appear for the single purpose of supporting their motion to dismiss. “ They file this their answer under oath for the sole purpose of objecting to the jurisdiction of the court over them as defendants, and in support of their motion heretofore filed, praying that the summons issued to Lucas county in this case be set aside and the plaintiff’s petition be dismissed. They say, that they have been for several years past residents of the city of Toledo, in said county of Lucas, doing business therein as partners under the firm name of Carrington and Casey ; they have, also, for more than a year past, owned the schooner £ S. D. Hungerford;’ defendant John Cunningham has never owned any interest in said vessel, or the earnings or profits thereof, at the dates mentioned in the plaintiff’s petition, but was employed by Carrington and Casey to act as captain of said vessel, at a fixed salary; neither said Carrington nor said Casey was in Cleveland at any of the dates mentioned in the plaintiff’s petition, nor had either of them any knowledge of any of the occurrences in said petition until several days afterward ; neither of them has been served with summons in said Cuyahoga county, nor has either in any way assented that the said court take jurisdiction over them as defendants in said case. Wherefore, they pray that said summons be set aside, and said petition as to these defendants dismissed for want of jurisdiction.”
    At the May term, 1873, of the court of common pleas, this motion came on for hearing, and it appears by the bill of exceptions that the plaintiff objected to the allowance of said motion, and especially upon the ground that he was entitled to a trial by jury upon the issues presented by his petition and said answer, and demanded such jury trial, which objection was overruled, and a jury trial upon such issue refused; to which orders of the court the plaintiff duly excepted.
    The said Carrington and Casey read in support of their motion the said answer under oath, and also the answer of the defendant, John Cunningham, by him filed in said case. The plaintiff objected to the introduction of said affidavits in evidence, which objection was heard and said affidavits received; to all of which plaintiff duly excepted. No other affidavits or evidence was offered by either party; whereupon, the court granted said motion, and ordered that said petition be dismissed as to the defendants, Carrington and Casey; to which order plaintiff excepted, and thereupon, upon motion of the plaintiff, a bill of exceptions was allowed and signed.

      Estep & Burke, for plaintiff in error.
    [No brief for the plaintiff in error was found on file by the reporter.]

      Bissell & Gorrill, for defendants in error:
    Our code of civil procedure does not authorize the joinder in question. Code, § 38; Clark v. Fry, 8 Ohio St. 359; 2 Cin. S. C. R. 158; 5 Cushing, 592; 1 Rice, 162.
    The court acquired no jurisdiction of Carrington and Casey. Dunn v. Hazlet, 4 Ohio St. 435; Allen v. Miller, 11 Ohio St. 378.
    Objection to the jurisdiction could be made by answer. Code, § 89; 17 Ohio St. 323; 13 Ohio St. 72.
   JonNSON, Chief Judge.

The single question we propose to consider is, whether the issue presented by the motion and answer of Carrington and Casey is one for the court or for a jury.

By the 53d section of the code, every other action than those specially provided for “ must be brought in the county in which the defendant, or some one of the defendants, resides or may be summoned.”

By section 58 of the code, “ where the action is rightly brought in any county, according to the provisions of title 4, a summons shall he issued to any other county, against !any one or more of the defendants, at the plaintiff’s request.”

"Whether Carrington and Casey could be 'served in Lucas county, depends on whether the action was “rightly brought ” in Cuyahoga county, as their co-defendant, Cunningham, was served in that county. The petition alleges as a ground of action, that all the defendants were the owners of the schooner, and that all were guilty of the negligence charged, which was, “ that ■for the purpose of enabling said Conway and others to unload said vessel and remove the ore aforesaid, the defendants personally, and by the aid and means of their agents, servants, and employes, erected upon said vessel an apparatus for hoisting said ore therefrom, . . . which was wholly insufficient for the purpose; . . . said apparatus, by reason of being improperly and insecurely erected, fastened, and secured, gave way and broke,” and thereby the deceased was killed.

If these allegations are true, then the suit was purely transitory in its character, and might be brought in any county where any one of .the defendants resided or might be served. Code, § 58.

The grounds for a recovery are that each and all these defendants were guilty of negligence, in erecting upon said vessel, of which they were owners, an unsafe and insecure hoisting apparatus, to be used in unloading the ore, which, while being used by Conway, without any fault of his, fell and caused his death.

The motion and answer of Carrington and Casey does not deny these allegations, except as to the joint ownership of the vessel. They aver, however, that Cunningham was not such joint owner, but only in command as captain at a fixed salary, and that neither of them was in Cuyahoga county at the time.

As to the charge that they, with Cunningham, were guilty of negligence in erecting and keeping on the vessel an unsafe hoisting apparatus, the motion and answer are silent.

Assuming, however, that these material averments of the petition, as to negligence, were put in issue by the motion and answer, the question is presented — who is to determine the question of fact thus raised ? The claim is, that, if Carrington and Casey are liable at all, it is as owners responsible for the acts of the captain and other employes on the schooner, under the rule of respondeat superior; and it is claimed, as a matter of pleading, that the master and his servant can not be joined in an action for the negligence of the servant. Whether this be so or not, we need not here inquire.

The plaintiff’s right of recovery does not depend on the doctrine of respondeat superior. His claim does not rest on that ground, but on that of joint and mutual negligence of each of the defendants in the erection of an unsafe hoisting apparatus on a vessel of which they were joint owners. We may assume, for the purposes of this case, that, upon the state of fact as claimed in this motion and answer, these defendants could not be served in Lucas county.. It will be conceded that, if the facts are as alleged in the petition, they were pioperly served.

The petition has, upon its face, made a case, under the 53d and 58th sections of the code, for sending a summons to Lucas county. The answer and motion, in substance, deny the allegations of the petition in that behalf. The petition makes a case in which all the defendants are guilty of negligence! The answer makes one, or seeks to make it, where the liability of the non-resident defendants, if any ■ exists, is for the acts of their servants and agent, under the maxim, respondeat superior.

This is an issue of fact. The action is to recover a money judgment, and the question is, is this an issue for the court or jury?

If, upon the face of the petition, it appeared that the plaintiff had no right, under section 58 of the code, to send a summons to another county, a motion to quash such summons might be entertained and determined by the court, for that would be a question of law.

Under section 87 of the code, a demurrer lies, where it appears upon the face of the petition, that the court has no jurisdiction over the person. If it does not so appear, then by section 89 the objection may be taken by answer.

The issue of fact in this case, raises the single question, had the court jurisdiction over the persons of Carrington and Casey ?

If this issue is found for plaintiff the court has such jurisdiction. If found for the defendants, and if, as a matter of law, which we do not determine, a master and servant, can not be joined as defendants in an action for the servant’s negligence, then no jurisdiction was acquired over these defendants, although they are liable as masters for the acts of Cunningham as their servant in Lucas county.

By section 261 of the code, “ an issue of facts arises, 1. Upon a material allegation of the petition denied by the answer,” etc.; and, by section 263, “ issues of fact for the recovery of money . . . shall be tried by a jury, unless a jury trial be waived.” We think the court erred in hearing and determining this issue. The plaintiff had the right to submit it to a jury. The court in assuming to try this issue, on motion was, in fact, fiuding upon material allegations of the petition alleged as a ground for a recovery.

The Presbyterian Society of Gallipolis v. Smithers, 12 Ohio St. 248, is decisive of this point. In that case, persons claiming to be trustees of a corporation, brought suit to recover possession of property owned by it. The answer by the defendants denied these persons were such trustees, and averred that they were the lawful trustees. Upon motion of defendant the issue was tried by the court, and the action was dismissed.

On error to this court, it was held, that this was an issue oi fact, under sections 87 and 89 of the code, as to the legal capacity of plaintiffs to sue, which was properly triable by a jury, and that the court below erred when it undertook to determine it upon motion.

It is not within the power of a plaintiff to compel parties residing out of the county where suit is brought to answer out of their own county, by uniting with them a mere nominal party, or one not rightly joined with them as a defendant. In order to give the court jurisdiction over the persons of non-resident defendants, who are joined with resident defendants, the latter must have a real and substantial interest adverse to the plaintiff. Allen v. Miller, 11 Ohio St. 374.

Where a resident and a non-resident of the county are sued as joint contractors, and service is made on the latter in his own county, and on the trial it turns out that the resident defendant is not liable, judgment can not be rendered against the non-resident, because the jurisdiction of the court over his person depended on his being rightly joined with the resident defendant, and as the verdict found he was not liable, there was no authority to summon the non-resident to answer out of the county where he was served.

In the last two cases, like the one at bar, the jurisdiction of the court over the non-resident defendants depended upon the facts in issue, which could only be determined in the usual way.

In Allen v. Miller, the non-resident defendant answered to the jurisdiction, and also to the merits; and, upon final trial, it appearing that the resident defendant was not properly joined as a defendant, and had no real interest adverse to the plaintiff', the case was dismissed as to the non-resident.

So, in this case, if upon a trial of the issue it should appear that Cunningham was not properly made a defendant, the service on the non-residents gave the court no jurisdiction over them. In such a case, the court could only obtain jurisdiction over them by a service in Cuyahoga county, or by waiver.

Allen v. Miller, 11 Ohio St. 374, was an action by assignees of an account against the assignors resident of the county where suit was brought, who was there served, joined with the debtor, who resided in another county, as co-defendants, and who was served by summons where he resided.

It was admitted by the plaintiff that the defendants who, as alleged, owed the account, were not residents or served with process in the county where the action was pending, and, it appearing on the face of the petition that the assignors of the account had no real and substantial interest adverse to the plaintiff, the court, on motion, dismissed the action as to the non-residents served in another county. The admission in this case presented a question of law, and was properly determined by the court.

Judgment is reversed, and cause remanded.


author: Ashburn, J.

text:
    Duval v. Davey.
    1. Where words defamatory of the character of a married woman are published in the presence and hearing of her husband, he is a competent witness to prove the speaking of the words in an action of slander brought by husband and wife.
    2. In an action of slander by a woman, where the alleged defamatory words impute to her a want of chastity, specific acts of sexual intercourse by her can not be given in evidence, for any purpose, under the issue made by a general denial.
    3. Where the slanderous words set out in the petition charged the plaintiff, a female, with a want of chastity, under such issue it is competent, in mitigation of damages, to show that plaintiff’s general reputation fo? chastity at and prior to the speaking of the words was bad. Dewitt v. Greenfield, 5 Ohio, 225, overruled.
    Error to the District Court of Hocking county.
    Hannah Davey and Joseph Davey, defendants in error and plaintiffs below, brought au action for slander against John GL Duval, plaintiff' in error and defendant below, in which action Hannah Davey, a married woman and wife of Joseph Davey, charged John Gr. Duval with having uttered and published of and concerning her slanderous words, as follows, to wit: “ Is that you, Davey (then addressing the words to plaintiff, Joseph Davey) you God damned thieving son of a bitch, you came out here and married that God damned false swearing, whoring bitch of a woman ” (meaning the plaintiff', Hannah, wife of Joseph), meaning that said plaintiff, Hannah, is an unchaste woman, and that she is or was guilty of the crime of perjury.
    The answer was a general denial. A trial resulted in a verdict for the plaintiff'. A motion for a new trial was overruled, and judgment entered. The proceedings and-judgment of the court of common pleas were affirmed on error in the district court. A petition in error was filed in the supreme court, praying that, for errors there assigned, the proceedings and judgments of the lower courts be reversed.
    The errors assigned are substantially as follows :

      First. The trial court erred in admitting certain evidence offered in behalf of plaintiff below, and excepted to by the defendant below, as shown by the bill of exceptions.

      Second. That the court erred in ruling out certain evidence offered by defendant below on the trial, which rejected evidence is set out in the bill of exceptions.

      Third. That the court erred in permitting Joseph Davey, the husband of Hannah Davey, to testify in the case to certain matters set out in the bill of exceptions.

      Fourth. That the court erred in its charge to the jury.

      Fifth. That the court erred in refusing to allow the witness, Carnes, on cross-examination, to answer certain questions, as shown by bill of exceptions.
    In the progress of the trial plaintiff below offered as a witness Joseph Davey, who testified that on one occasion, and about the 1st of October, 1872, the defendant, John G. Duval, came to the house of the plaintiffs, and in the presence and hearing of the plaintiffs, and no other person, said to Hannah Davey: “ You God damned whoring bitch,” and also other remarks concerning the plaintiffs, Joseph and Hannah Davey; to the introduction of which testimony the defendant, by his attornej^s, objected at the time. The court thereupon overruled said objection, and permitted such evidence to go to the jury. To which the defendant at the time objected.
    At the close of the plaintiffs’ testimony, the defendant, for the purpose of mitigating damages, offered in evidence the deposition of John G-. Hartman, to the introduction of which plaintiffs, by their counsel, objected. The court sustained the objection, so far as to exclude question seven in the deposition, and the answer thereto. Also excluded the cross-examination of the witness as to such special matter. Question seven and answer thereto are as follows :
    “ Q. During the time you worked for Mrs. Davey, then Mrs. Blake, did anything take place between you and her of an intimate character? If yea, state all about it, when, where, and its nature, giving all the particulars in detail. (Plaintiffs object to interrogatory.)

      “A. There did, I suppose ; I suppose I know ; I reckon you want to know how often I ‘diddled’ her, and all this. As near as I can recollect, I had sexual intercourse with her three times. The first place was in the kitchen, on the second night after I went there ; as near as I can recollect, twice after that was on the bed ; do n’t recollect what nights it were ; this was in 1866, during the time I was working there ; these were the only times I had anything to do with her.”
    To which holding and ruling of the court the defendant at the time excepted..
    Portions of the deposition of one Elizabeth Paugh, detailing special instances of a want of chastity on the part of the plaintiff, Hannah Davey, were objected to by plaintiffs, and by the court excluded; to which ruling of the court defendant below excepted.
    As recited in the bill of exceptions, the defendant, to disprove malice, and by way of mitigation of damages, called to the witness-stand one Jerome Watkins; after being duly sworn, the defendant, by his attorneys, propounded to said witness the following questions, among others: “ Have you the means of knowing what was the general reputation of Hannah Davey, the plaintiff, in the community where she resided at the time of, and before, the alleged speaking of the slanderous words set out and stated in the petition, for chastity and virtue ?” To which question the plaintiffs, by their attorneys, objected, and the court sustained the objection, and refused to permit said question to be answered, to which holding and ruling of the court the defendant at the time excepted.
    And thereupon the defendant, after having shown by the witness, that he had for many years resided in the neighborhood of the plaintiff, and had the means of knowing the general reputation of said Hannah Davey for chastity at the time of, and before, the alleged speaking of said slanderous words, and in the neighborhood where she then, and for many years had, resided, then asked of said witness the following question: "What was the general reputation of Hannah Davey, in the county where she resided, for chastity and virtue, at the time of, and before, the alleged speaking of said slanderous words set out in the petition, to wit, April 25,1872, and prior thereto ? To which question the plaintiffs, by their attorneys, objected, and the court refused to permit said question to be answered; and thereupon the defendant proposed and offered to prove bv said witness, that the plaintiff, Hannah Davey, at the time referred to, had and sustained a general had reputation for chastity and virtue; and thereupon, the plaintiffs objecting to the introduction of said testimony, the court refused to permit any testimony to be given to the jury, touching the reputation of Hannah Davey for chastity, and the court stated and directed that the only evidence of reputation that the defendant was entitled to produce and show was the general reputation of Hannah Davey as a woman, and that the inquiry could not be confined to the reputation for chastity or virtue, or any other particular; to which holding and ruling of the court the defendant at the time excepted.
    The defendant below having offered evidence tending to show that Hannah Davey did not sustain a good general reputation in the county in which she resided, thereupon plaintiff below introduced evidence tending to show that she was a woman of good reputation at the time referred to, and, among others, called as a witness James H. Carnes, who, in his examination, testified that he had known the plaintiffs for several years; that he had the means of knowing the general reputation of the plaintiff, Hannah Davey, in the community in which she resided, and that her reputation was good, and that he had never heard anything against her reputation as a woman.
    Thereupon the defendant below, to disprove the statements of the witness, and to reflect upon the character of the testimony so given by the witness in chief, offered, on cross-examination, to show that Hannah Davey had been in the habit, for a loiig period of time, prior and up to the time of the speaking of the said slanderous words, of associating with lewd, unchaste, and immoral men and women, and that such lewd, unchaste, and immoral persons were, and had been for a long time, the associates and companions of said Hannah.
    And the said defendant, for the purpose of impeaching the said witness, and his said testimony so given in his direct examination, asked of said witness if he did not, on a certain occasion (giving time, place, and circumstances), say to Andrew Wood and James Paugh that he (the witness) did have sexual intercourse with the said Hannah Davey, while the said Hannah Davey was a single woman, and if he 'did not give the time, place, and circumstances under which he so had intercourse.
    Plaintiff objected. The objection was sustained and defendant excepted.

      S. Weldy and John S. Brasee, for plaintiff in error:
    Evidence is only admissible on the question of malice for the purpose of affecting the amount of recovery. 5 Ohio St. 293; 6 Ohio St. 516; 1 Kern. 347; 19 Mich. 17; 2 Am. Rep. 66.

      As to the evidence in mitigation of damages and to disprove malice, see Wilson v. Apple, 3 Ohio, 270; Haywood, v. Foster, 16 Ohio, 90; Townsend on S. & L. 623; 2 Starkie oh Slander, 90.

      Friesner & Case, and C. H. Ripey, for defendant in error:
    Evidence of particular acts were not admissible. Wilson v. Apple, 3 Ohio, 270; 5 Ohio, 225; 16 Ohio, 88; 5 Ohio St. 294; 6 Ohio St. 516; Wright, 316; 7 Ohio, pt. 1, 253; 14 Ohio, 418; 3 Starkie, 369, 878; 6 Mass. 514; 1 Am. L.. C. 233.
   Ashburn, J.

1. Was it error to permit Joseph Davey to testify, under the circumstances in which the alleged, conversation, or rather declarations, took place.

As alleged in the petition and disclosed by the testimony,, the defamatory words, as testified to by Davey, had in them, no element of a confidental relation as between husband, and wife. The language used by defendant was addressed to the wife in the presence of her husband. There was a known third party, John Gr. Duvall, present, which would,, uuder any circumstances, render the husband a competent witness. Uttering the defamatory words to or in the presence of the husband was a publication, and to one vitally interested in their truth, and any damaging effect suck words were likely to have upon the character of his wife.. We think the husband was a competent witness.

II. Did the court err in excluding evidence directly showing acts of sexual intercourse by Hannah Davey,, while single, with Hartman and others?

This class of evidence was, under the pleadings, properly excluded. Its direct tendency was to prove a justification. If credited, it would have shown her guilty of a want of chastity — proved the truth of the words.

It has long been the settled rule, and recognized in the practice of this state, that under the general issue, to-which the general denial provided in the code is, in effect,. 'in this class of cases, practically analogous, a. justification •can not be proved. Townsend on Slander, etc., § 409; Eoulkard’s Starkie on Slander, etc., § 667. Where the testimony proposed to be offered can have no other effect than to make apparent the guilt of the plaintiff, and prove the truth of the words spoken, thereby necessarily tending ■to justify the speaking of the words, and not merely to mitigate damages, the facts relied on, and proposed to be •offered in evidence, must be specially pleaded, and can not be permitted to go in evidence under the general denial. Hayward v. Foster, 16 Ohio, 88.

III. Hid the court err in refusing to allow defendant to prove, in mitigation of damages, plaintiff’s general reputation for chastity?

This question is not without difficulty. The rule, as gathered from the text books, is by no means uniform, and the reported decisions of other states and countries are in •conflict on this point. Our own supreme court, in Dewitt v. Greenfield, 5 Ohio, 225, limits.the inquiry to the “ general good or bad character of the party” The reason of the rule is said to be, “ A man is supposed to be always ready to sustain his general character, but not to meet particular reports.” This rule is too contracted to meet all eases. When a party is charged with a particular vice of character, that particular element of character is put in issue by the general denial; and the party, knowing that his char.aeter is assailed in a particular respect, must be held as ready to sustain his general character in the respect in which it is attacked, as to sustain it as a whole.

It is said in Dewitt v. Greenfield, supra, “ but spreading a plea of the truth of the words on the record, in justification, is always an aggravation of the damages, if not proven.” This rule of damages has been changed by the casé of Rayner v. Kinney, 14 Ohio St. 287. The rule that inquiry as to reputation must be confined exclusively to general good or bad character, is not sound. Indeed, it may be questioned whether the learned judge, who wrote the opinion in that case, contemplated that the rule, as announced, should cover all cases where character is in issue. If he did, the opinion contains evidence of, and authority for, a broader rule. He says, “ under the general issue, the defendant, in mitigation of damages, may prove that the plaintiff, at the time of speaking the words, was under a general suspicion of having been guilty of the charge imputed to him.” This we think the true rule, and renders the general doctrine of the case untenable.

Plaintiff’s character for chastity was in issue under the general denial. It was the object of defendant’s assault. Injury to it was the gravamen of complaint. The action was brought for its vindication. She claims, in her petition, that prior to the speaking of the slanderous words, by defendant, “ she sustained a good name and character among her neighbor’s and acquaintances for chastity, moral worth, and integrity,” and was never suspected of “ unchaste conduct,” etc.

Touching this point, 1 Greenleaf on Evidence, § 55, .states the modern rule to be, “ But it seems that the character of the party, in regard to any particular trait, is not in issue, unless it be the trait which is involved in the matter charged against him.” Taylor, in his work on evidence, vol. 1, § 334, p. 365, states the rule thus: “ It seems, however, that here, as in other cases where witnesses to ■character are admitted, evidence must be confined to the particular trait which is attacked in the alleged libel; and, as to this, it can only furnish proof of general reputation, and must, by no means, condescend to particular acts of bad conduct.” Foulkard’s Starkie on Slander, etc., § 714; Eoulkard’s Law of Slander, etc. (4th ed.) 539; Bell v. Parke, 11 Irish Com. Law, 413-420; Earl of Leicester v. Walter, 2 Camp. 251; Turner v. Foxall, 2 Cranch C. C. 324; - v. Moor, 1 M. & S. 285.

While we find a conflict of authority on this point, the modern cases are founded on better reason, and clearly admit the competency of general reputation in' regard to the trait of character assailed. An examination of the cases we think would clearly show, that the apparent conflict in the decisions, arises principally from the nature of the* pleadings, or single nature of the accusation. But we-will not pursue this branch of investigation, because we-think, upon principle, a general reputation of want of good character in the very particular in which it has been assailed,, is competent evidence in mitigation of damages.

The plaintiff seeks a compensation for a loss of character,, not her reputation for truth, integrity, sobriety, or industry,, but in respect to her reputation for chastity. That alonéis claimed to have been soiled. That is put in issue. The-law presumed it good, and therefore to her valuable. If her character for chastity has sustained no damage, she is-entitled to but little or no compensation. If her general reputation for chastity was notoriously bad when the alleged slanderous words were spoken, could it be that the pecuniary injury sustained by her, from the wrongful act’ of defendant, is as great as it would have been if her general reputation for chastity had been untarnished?

That evidence of general reputation, as a woman, is admissible in mitigation of damages is not disputed. Such was the theory of the court below, but it went further, and’ ruled that evidence of the general reputation for chastity was not admissible. It seems to us the reason is much stronger for allowing evidence affecting her general character in respect to the trait that has been assailed. Reputation is complex — made up of many things. A woman may possess many virtues, consequently a fair, or even good general reputation as a woman, and yet be notorious-for some one vice. If the defamer assails all her virtues she sustains an injury, if only her other vice is assailed theinjiiry is less.

Plaintiff asserts in her complaint that her standing in society, as a virtuous woman, has been assaulted and damaged,, and that her character for chastity was, prior thereto, irreproachable. It is the element of chastity in her character which she claims has been damaged. Its value then becomes the proper subject of inquiry — not her truthfulness,, hér integrity, her sobriety, her industry — but her chastity alone. If that is worthless in the general market of public estimation, it would seem strange indeed, if defendant might not show, in mitigation of damages, that it was generally reputed of little value.

The court erred in refusing to allow defendant to prove plaintiff’s general reputation for chastity was. bad.

IY. We think the court ruled correctly in refusing to allow a cross-examination of witness Carnes on the subject proposed by defendant. The witness was examined by plaintiff as to her general reputation alone. If the character of plaintiff’s associates could be used in any aspect of the case, it was evidence in chief, and not admissible on cross-examination. Facts not admissible in chief, as a defense, were sought to be introduced indirectly, under the guise of impeaching the witness. We know of no rule of evidence that would authorize the proposed cross-examination of the witness.

Reversed and remanded to the court of common pleas for further proceedings.

Wright, J., dissented from the second proposition of the syllabus.


author: Wright, J.

text:
    Shaw v. Walbridge.
    1. A deed having been given, absolute upon its face, the grantor claimed it ’ was a mortgage; in a proceeding to establish that claim, it was competent for the grantee to show, that although originally a mortgage, the equity of redemption had been released by a parol agreement.
    2. There is no rule of law which prevents a mortgagor from disposing of his equity of redemption to a mortgagee by private arrangement, but courts of equity will not permit a mortgagee to take advantage of his position so as to wrest from the mortgagor his equity, by an uncon- ■ scionable bargain. The transaction will be jealously scrutinized, but if the agreement is a fair one, under all the circumstances of the case, it will be upheld.
    Error to the District Court of Lucas county.

      The original action was commenced in the Court of Common Pleas of Lucas county, March 13, 1872, by one John B. Marston, against John H. Shaw and others, to subject certain real estate to the payment of a judgment recovered by said John B. Marston, against said John II. Shaw.
    Horace S. Walbridge, the defendant in error, was made a party defendant to said action ; and the petition alleges against him, among other things, that the said Shaw had conveyed to the said Walbridge, by a deed, absolute on its face, but, in fact, intended as a security for the repayment of money, lots numbered from 105 to 131 inclusive, in Shaw’s'Monroe Street Addition to Toledo, and asks that said property may be subjected to the payment of said judgment.
    Said Walbridge, on May 23, 1872, answered said petition, and alleged as follows : “ On or about the first day of December, a. d. 1868, as security for the sum of $2,500, then loaned by defendant to said Shaw, the said Shaw and wife conveyed to this defendant lots numbered consecutively from 105 to 131 inclusive, in Shaw’s Monroe Street Addition to the city of Toledo ; that thereafter, to wit, on or about the fifteenth day of May, a. d. 1869, for said sum of $2,500, this defendant purchased of said Shaw said lots in Monroe Street Addition to Toledo, numbered consecutively from 107 to 131 inclusive; and the said loan of money being fully paid and settled, on or about said last mentioned date, defendant reconveyed to said Shaw said lots in Monroe Street Addition to Toledo, numbered 105 and 106. And so, the defendant alleges, that prior to the commencement of this suit, he became the absolute owner in fee of the said above described premises, as above stated, and that he does not now hold the same or any portion thereof in trust for said Shaw, or otherwise than as such owner.”
    Said Shaw, on May 18, 1872, filed an answer and cross-petition in said case, alleging that said conveyance to Walbridge, though absolute on its face, was intended as security for the repayment of borrowed money, and is now held by said Walbridge solely for that purpose, and asking that the said deed may be declared null and void, on the payment to said Walbridge of the sum of money which said deed was given to secure, but alleging no tender or offer to pay what should be found to be due.
    To the cross-petition of said Shaw, an answer was filed by said Walbridge, denying that said deed was still held by him as security, and repeating the above allegations contained in his answer to the petition.
    At the May term, a. d. 1872, of said court, the said cause was tried to the court, and judgment rendered in favor of said Walbridge; and the petition of the plaintiff and the cross-petition of said Shaw were severally dismissed.
    From this judgment the said John H. Shaw alone appealed to the district court.
    Pending the said appeal, the said John H. Shaw died; and at the April term, A. D. 1873, of the district court, the said action was revived in favor of Eliza A. Shaw and William A. West, devisees of said John H. Shaw, deceased.
    At the April term, a. d. 1874, of the said district court, said 'cause was again tried, and judgment rendered therein in favor of said W albridge.
    Said Eliza A. Shaw made a motion for a new trial, -which was overruled.
    To reverse said judgment of the district court, this proceeding is instituted.

      Lockwood § Everett, for plaintiff in error :
    Parol agreement to release the equity of redemption insufficient. Brown on Stat. of Frauds, § 229 ; Kelly v. Stanberry, 13 Ohio, 408; Hughes v. Moore, 7 Cranch, 176; Marble v. Marble, 5 N. H. 374; Scott v. McFarland, 13 Mass. 309; 11 Mass. 342 ; Washburn on R. P. 507, 508.
    The contract was oppressive and voidable. Haldridge v. Gellippe, 2 Johns. Ch. 29 ; 19 Vt. 9 ; 4 Kent’s Com. 143.

      Kent, Newton ¿f Pugsley, for defendant in error :
    Parol agreement to release the equity of redemption was admissible. 1 Wash, on R. P. 520, 521; Marshall v. Stewart, 17 Ohio, 356; 109 Mass. 130; 7 Allen, 46; Stat. of Frauds, § 4; 13 M. & W. 284 ; 3 Ohio, 5 ; 2 Ohio, 506 ; 5 Ohio, 375; 1 Greenl. on Ev. § 302: Brown on Stat. of Frauds, § 433; Sugden on Vendors, 173; 3 Met. 494; 2 Gray, 302 ; 9 Cush. 31.
   Wright, J.

The first error assigned is upon a question of evidence. After the case was appealed, John H. Shaw, principal defendant, died, and his wife, Eliza A. Shaw, and others, were made parties, as “ devisees.” Walbridge, between whom and Shaw tile controversy was, being a witness, was asked what was said and done between himself and Shaw as regards the matter in dispute. This was objected to. If we understand the ground of the objection, it is, that Shaw being dead, Walbridge was an incompetent witness, Mrs. Shaw being a devisee of deceased. Section 313 of the code, as it was amended in 1871 (68 Ohio L. 127), was as follows: “No party to a civil action shall be allowed to testify by virtue of section 310, in any action where the adverse party is the guardian or trustee of a child or children of a deceased person, or if an idiot or a lunatic, or if a deaf and dumb person, or is the executor or administrator of a deceased person, or is a party claiming or defending as heir, grantee, or devisee of a deceased person, except,” etc. Under this section, of course, Mrs. Shaw, being a “ devisee of a deceased person,” Walbridge would be incompetent to testify against her. But the case before us was tried 15th April, 1874, and ten days earlier, April 13, 1874, the above law was repealed, and re-enacted, leaving out the words “ or is a party claiming or defending as heir, grantee, or devisee of a deceased person.” Walbridge, therefore, was a competent witness, and there was no error in admitting his evidence.

John TI. Shaw had conveyed to Walbridge the lots in question, by a deed, absolute upon its face, Walbridge giving back a contract to reconvey on the payment of a certain sum. As is seen in Ms answer, ’Walbridge admits that the transaction was, in fact, a mortgage of the property, but he further asserts that there was a subsequent parol agreement, by which the contract to reconvey was canceled, and the equity of redemption actually sold by Shaw to himself. It is claimed by Shaw’s representatives, that a parol agreement to release an equity of redemption is insufficient under the statute of frauds, being an attempt to convey an interest in real estate without writing, and there are authorities to that effect. Brown on Stat. Erauds, §229 ; Marble v. Marble, 5 N. H. 374; Scott v. McFarland, 13 Mass. 309.

The better opinion is, however, the other way. Harrison v. Trustees of Phillips Academy, 12 Mass. 456; Trull v. Skinner, 17 Pick. 213; Falis v. Conway Mut. Fire Ins. Co., 7 Allen, 46 ; Green v. Butler, 26 Cal. 593; West v. Peed, 55 Ill. 242.

But it is not necessary to rest the case on this ground alone. Walbridge holds an absolute deed to these lots. Shaw conies into a court of equity, asserting that it is not a deed, in fact, but a mortgage. He who seeks equity, must do equity, and when Walbridge claims that the transaction, although once a mortgage, has changed its character —that the debt has been paid, and the parties have agreed that the property shall pay it, that the contract to reconvey has been canceled by mutual consent — equity will adjust the rights of the parties as they really are.

Again, it is claimed that an agreement by the mortgagor to convey his right of redemption to the mortgagee will not be countenanced by a court of equity.

It is true that at the time the mortgage is made no agreement can be made to deprive the mortgagee of his right to redeem. 1 Wash. R. Prop. (4th ed.), ch. xvi, § 1, par. 23, page 61; 1 Jones on Mort. § 251; Peugh v. Davis, S. C. U. S., April 15, 1878 ; The Reporter, vol. 5, page 673.

But it is equally true that he may subsequently part with this right, and the rule upon the subject maybe thus stated: Courts will scrutinize such a transaction, and will not allow the mortgagee to take any undue advantage ; he will not be allowed to use his position as creditor to oppress, or to drive an unconscionable bargain. But where such a sale is a fair one, under all the circumstances, it will be sustained. This, we take it, is the result of the authorities. West v. Reed, 55 Ill. 242 ; 1 Jones on Mort. §§ 252, 1046 ; 1 Wash. R. Prop. 62; 1 Powell on Mort. 122, note n; Hyndman v. Hyndman, 19 Vt. 1: Green v. Butler, 26 Cal. 595 ; Revisen v. Hay, 2 Edw. Ch. 535; Peugh v. Dams, supra; Thompson v. Lee, 31 Ala. 292 ; Villa v. Rodriquez, 12 Wall. 323.

In 2 White & Tudor’s L. C. in Eq. (pt. 2) 1984, notes to Thornborough v. Baker and Howard, v. Harris, under the head, “ when right of redemption exists,” this subject is discussed, and the authorities collected.

In Riley B. Wilson v. Peter O. Carpenter, decided in the Supreme Court of Indiana, not yet reported, it was held: The proposition that a deed aud defeasance taken together constitutes a mortgage is well established. But the rule once a mortgage always a mortgage ” does not preclude any subsequent bona fide agreement in respect to the estate between the parties; and where a mortgagor voluntarily cancels the instrument of defeasance which he holds, it gives to the deed which it was intended to defeat the effect of an original absolute conveyance, as between the parties.

There can, therefore, be no objection to the sale of this equity of redemption and cancellation of the contract to reconvey, if the agreement was a fair one. As to the evidence upon the subject, we think it sustained the action of the courts below, and the judgments will be affirmed.

Judgment accordingly.


author: Johnson, Chief Judge.

text:
    McKee v. Hamilton.
    Where H., as managing partner of a firm, in order to procure a loan from a third party, brought to plaintiffs a note payable to such third party, and signed by himself individually, and to induce them to become sureties of the firm for such loan, represented that the proposed loan was on partnership account and for its use, and that his partner would also sign said note individually, which he subsequently did, that being the usual mode of their executing partnership obligations, and upon the faith of such representations the plaintiff’s became liable as sureties by signing said note on the credit of the partnership, and the money is borrowed, received, and used in its business: Held,

    1. That this created a partnership liability, and plaintiffs became sureties of such partnership.
    2. The declarations of H., made in procuring such loan, to induce parties to become sureties for the partnership, or to become sureties of a renewal thereof at maturity, during the existence of the partnership, if acted on in good faith, are binding upon the partners.
    3. The contract between the principal and his surety, although it may be expressed or bo implied from the terms of the contract with the creditor; is not necessarily contained therein, nor evidenced, thereby, but may be and usually is a collateral contract, express or implied, which may be shown to exist by any competent and satisfactory evidence.
    4. Where a partnership liability for a debt Is once fixed, the giving of a note in renewal by one partner alone, with the same sureties as on the original debt, who sign such renewal as sureties on the faith of representations that it is necessary in the business of the firm, and on the promise by him that his co-partner will also sign as a principal, does not, as against such sureties, operate as a payment of the original debt; and upon payment of such renewal note by the sureties, they may recover against the partners, although such co-partner did uot sign such renewal note.
    Error, to the District Court of Harrison county.
    The action below was brought by the defendants in error against Thomas McKee and "William L. Hamilton, partners, to recover*$2,000, for money paid by them October 1, 1873, as sureties of the partnership, on a promissory note, of which the following is a copy :
    “ $2,000. On the 1st of October, 1873, value received, we, or either of us, promise to pay Stuart B. Shotwell or order two thousand dollars, with eight per cent, interest after due, tobe paid annually ; and we do hereby authorize D. Cunningham, Esq., or any other attorney at law, at any time after the aforesaid sum is duo, to appear in any action hereon, and in such action to wai%7e all process, receive a petition, and to confess a judgment hereon in favor of said Shotwell, or the legal holder hereof, for the amount which shall then be due hereon, and also for costs of suit against us, or either or any of us, and also to waive all errors. October 8, 1872. Wm. L. Hamilton [seal], Levi Hamilton [seal], ¥m. Hamilton [seal].”
    It is alleged in the petition that the defendants, as partner’s, were engaged in buying and selling agricultural implements, and in their business as such, about November 5, 1870, borrowed of one Shotwell $2,000, for which they gave their note, with plaintiffs as sureties, and that the money so borrowed was received by the firm and used in its business.
    It is also alleged that this note was twice renewed, the last renewal, of which the foregoing is a copy, fell due October 1, 1873, was taken up and paid by plaintiffs for the firm ; also that the original and renewal notes were each signed by plaintiffs, as sureties for the firm, upon the representations of the defendants, and under the belief that the money so borrowed was for the use of the partnership, and was in fact so used.
    To this answer McKee, only, answers, denying the indebtedness, admitting that he and his co-defendant, William L. Hamilton, signed the original note in their individual names as principals, with the plaintiffs as sureties, but denies that the money so borrowed was received or used by the partnership, but was received and used by said William L. Hamilton in his individual business.
    He also avers that when this original note became due said William L. Hamilton was largely indebted to the firm of McKee & Hamilton, and that he agreed with said McKee that he would pay off that note, he (McKee) refusing to go on a renewal note, and that William L. informed him it had been so paid off by his giving his own note, with his own sureties in payment.
    McKee also denies that plaintiffs signed any of said notes as sureties of the firm, and avers that they signed the first one as sureties of William L. Hamilton and himself individually, and the renewal notes as sureties of William L. Hamilton individually, and not on account of nor at the request of the firm.
    A trial was had upon the issue joined, which resulted in a verdict for plaintiffs.
    On the overruling of a motion for a new trial, a bill of exceptions was taken, presenting the points now under consideration.
    After the evidence was all in, plaintiff in error presented eleven distinct propositions of law, with the request that they be given to the jury, which the court refused.
    The charge given, and the refusal to charge as requested, were excepted to in the following terms :
    “ Which requests the court refused to give to the jury, but did charge the jury as follows : to which refusal and charge as given the defendant excepted.”
    During the progress of the trial sundry exceptions were noted to evidence given by the plaintiffs below as to the representations made by William L. Hamilton to them, at the time he procured their signature as sureties to the three several notes signed by them, and especially as to the renewal notes.

      J. M. Estep, for plaintiff in error :
    The second note, which the defendants claim to have paid off, was a sealed obligation, and on the face of it the individual obligation of Wm. L. Hamilton alone. It is therefore presumed to have been his individual paper, and was itself notice to Levi and Wm. Hamilton that it was so. Story on Partnership, §§ 109, and 132-138 ; 3 Kent, 45 ; 6 Cow. 497; 8 Met. 411; 15 East, 7 ; 1 Parsons on Notes and Bills, 93-102, 218 ; 21 Wend. 365 ; 19 Barb. 326; 10 Wend. 465; 16 Wend. 510 ; 24 Wend. 411; 5 Wend. 224; 5 Conn. 574.
    Only the party signing the note was liable on it. 4 Ohio St. 37 ; 2 Johns. 217 ; 4 Johns. 468.
    To bind the firm the promise of the firm should be in writing. 5 Hill, 162 ; 12 Ohio St. 219; 13 Ohio St. 340.

      John S. Pearce, for defendants in error:
    1. The presumption of law, relied upon by plaintiff in error, that, because the second note was not signed by McKee, and the firm name nowhere appearing on it, it was, therefore, W. L. Hamilton’s own individual note, is not conclusive; it may be rebutted by other proof, that the defendants in signing it understood from W. L. Hamilton that the same was to be in renewal of the first note, and that, relying upon his representation to that effect, gave credit to the firm, and not to W. L. Hamilton individually. Especially should this be the rule in the case of sureties, for the note is no evidence of their contract with their principals, or the true nature of the transaction between them. Taylor v. Williams, 2 Ohio, condensed, 252, 253; Purviance v. Sutherland, 2 Ohio St. 478-487 ; Collyer on Partnership, 266, 267-288, and note 1; Emly v. Lye, 15 East, 7 ; The National Bank of Chemung, 58 Barbour (N. Y.), 290 ; Oliphant v. Mathews, 16 Barb. 608; 1 Am. Lead. Cas. 552, 553; Story on Partnership, note 5 to § 109, also § 154; 2 Am. Rep. 520, 524; Horsay v. Heath, 5 Ohio, 353. The following cases are directly in point, and clearly recognize the admissibility of such proof: Wiggins v. Hammond, 1 Mo. 121; Owings § Co. v. Trotter $ Scott, 1 Bibb, 157-159 ; Hubbel v. Woolf, 15 Ind. 207. Especial attention is called to the case of Purviance v. Sutherland, above cited; and also to 2 Daniel on Neg. Inst., §§ 1299-1301.
    2. Though such representations be false and fraudulent, yet, being made in reference to a partnership transaction, and clearly in a matter within the scope of the partnership business, they are, notwithstanding, binding upon the firm, if the defendants did not know such representations to be of that character. 8 Kent’s Com. (marginal paging) 46; Parsons on Partnership, § 103; Collyer on Partnership, 240.
   Johnson, Chief Judge.

That the exceptions taken to the refusal to charge as requested, and to the charge as given, is too general to require the court to examine each separate proposition, has been repeatedly decided, and need not again be considered. Adams v. The State, 25 Ohio S. 584; Hallway v. Probst, 30 Ohio St. 105; Servis v. Stockstill, 30 Ohio St. 418 ; Insurance Co. v. Tobin, 32 Ohio St. 77.

But as one of the grounds of the motion for a new trial was that the verdict is contrary to the law and the evidence, and as all the evidence, as well as the charge of the court, is fully set out in the bill of exceptions, this court will, in passing' on the motion for a new trial,'look to all the facts and circumstances to determine whether substantial justice has been done. M. & C. R. R. Co. v. Strader & Co., 29 Ohio St. 448.

This rule requires that we should carefully examine the evidence and charge of the court to see if the judgment is warranted by the evidence and law of the case.

The partnership of McKee & Hamilton began in February, 1869, and ended in February, 1873, during which time McKee lived in Springfield, Ohio, and Hamilton in Harrison county, Ohio, where the business of the firm was chiefly transacted by him.

About the 8th of November, 1870, Hamilton brought to plaintiffs below the original note, payable to Shotwell, signed by himself, and procured their signatures thereto as sureties by representing that McKee wrould also sign it; that the money to be borrowed thereou of Shotwell was to be on the firm account to be used in the business, and that he would procure the signature of McKee thereto, a blauk space being left for that purpose.

It further appears that McKee did sign said original note, as agreed, and that the money borrowed thereon was received and used by the partnership, with McKee’s knowledge and approval. This created a partnership liability.

When this note became due it was renewed, and when tbe renewal-note matured, it was again renewed by the note copied in the statement of facts. At each of these renewals, both of which were made during the life of the partnership, Hamilton, as active partner, procured the signatures of the sureties under like representations as when the first note was signed, and that owing to a failure by the firm to make collections, it was compelled to get a renewal.

The sureties acted on the faith of these representations, and of the promise by Hamilton that he would, as he had in case of the original note, procure the signature of McKee thereto, but this was not done, and neither of the renewal notes was ever signed by McKee. .

It appeals by McKee’s testimony that be bad an understanding with his partner, Hamilton, that he should pay the original note off at maturity, and that he would not sign for a renewal; also that lie supposed it had been paid off.

But it also appears that these sureties acted in good faith, and on the promises and representations of Hamilton, acting for the firm, and without any knowledge of such understanding.

It further appears that tbe usual mode of giving partnership notes was for each to sign them individually, and not in the firm name, which was McKee & Hamilton.

The charge to the jury was in substance, that upon the facts the plaintiffs were the sureties of the partnership on the original note, if its proceeds were received and used in the firm business — that the partnership debt thus created was one that might be renewed — that the renewal was within the scope of the authority of William L. Hamilton, as a managing partner, and that his representations and promises made in procuring the sureties to sign renewal notes were within the scope of that authority, and might be relied on by them, if acting in good faith, as binding upon the firm.

The court’ further instructed the jury, that although McKee’s name was not on the renewal notes, yet the right of the sureties to look to the firm for indemnity was not, under such circumstances, defeated.

It seems to us the doctrine of this charge is consonant with both principle and authority.

It is claimed that as McKee’s name was not on either of the renewal notes, they are to be deemed the individual notes of William L. Hamilton, with defendants in error as his sureties, and that the first one was in law a payment of the original note signed by McKee, and the payment of the last one by the sureties was a payment for the principal named in the note, and not for the principals in the original debt, and therefore the sureties must look alone to the principal of the note which they paid.

If this were an action by the payee, Shotwell, to recover the money loaned, he might be barred of an action on the original debt after surrendering the note signed by McKee, and accepting a new note without his name, if such new note was-received in payment of the old one.

But the right of a surety to indemnity from his principal does not depend on the terms of the contract with the payee, but on the fact that as surety he has been compelled to pay money for his principal.

It was part of the agreement by William L. Hamilton, at each of these renewals, both of which were made during the partnership, that he would procure the signature of McKee, and that they were simply renewal notes for the firm of McKee & Hamilton.

It follows that the obligation of these sureties, as they understood it, which they incurred by resigning renewal notes, was on account of the firm, and not for William L. Hamilton, and as this was manifestly their intention, it can not be claimed that, as between them and the firm, they have relinquished their original right to look to the firm for indemnity.

The original debt was that of the partnership. The sureties for that d»bt have never intentionally relinquished their claim to look to the firm to pay the debt. It never was paid by the firm, and therefore when paid by the sureties, their right to recover against the firm was perfect.

This view of the case is sustained by authority.

In Hersey v. Heath, 5 Ohio, 855, L. & H. were partners, and borrowed on joint note $2,000 out of bank, by giving Hersey and others as sureties. H. transacted the business and renewed the note from time to time, the first three times the reuewal notes had the names of both L. & H., the other times that of H. alone, as principal; but Hersey indorsed relying upon the responsibility of both, and under the assurance of H. that all were to sign the paper. H. and the other parties became insolvent, and Hersey, having paid the note, filed his bill against the estate of L. for indemnity.

It is said by the court, that the surety became bound for L. as well as H., and has been compelled, in consequence, to pay money. Both were equally liable to him, and, at law as well as on the plainest principles of justice, he has a right to proceed against both until 'made whole, and to recover from either or both.

It is further said : “ No new debt was created at bank. The old one remained outstanding, although, to conform to the custom of business in the bank, when continued, and further time was given, the evidence of the debt was from time to time changed.” . . . “ When the identity of the debt is ascertained, it is now settled that a mere change of the evidence of it will not affect the liability of the real parties in a court of chancery.”

In this case, the original debt to Shotwell remained the same. The renewal notes only changed the evidence of it. That McKee’s name was not on the renewal notes was the fault of his partner, and without the knowledge or consent of the sureties.

In Purviance v. Sutherland, 2 Ohio St. 478, it was held: “That a request by a partner, while professing to act for and on behalf of the firm, that A. B. should become surety, is, in law, the request of the firm,” although the note was not, in law, the note of the firm. See also, Crumbaugh v. Kugler, 3 Ohio St. 546.

In Wharton v. Woodburn, 4 Dev. & Bat. 507, the key to the solution of this question is given, when it is said, “but it is to be recollected that the contract between the principal and surety, though it may be inferred from the nature of the security given to the creditor, is not contained therein, nor evidenced thereby, but is a collateral contract, usually a parol one which may be shown by any competent and satisfactory evidence.”

In that case, the court went much farther than we are required to go, and held that the firm was bound, when a surety signed at the request of one member of the firm, though the note was not binding upon it, and although the money did not go to the use of the firm. In this case the money was received and used by the partnership and its liability became fixed. The fact that ¥m. L. Hamilton had agreed with McKee that the note was not to be . renewed, and that McKee supposed it had been paid, can not change the power of the former to bind the firm by a renewal, when strangers to the partnership acted in good faith.

In Peterson v. Roach (decided at the present term), it was held that where a partner borrows money on the credit of his individual note, signed by a surety, such borrowing does not create a partnership liability, though the money be applied to the partnership purposes; and the sureties, if compelled to pay the note, must look to the principal on the note, and not to the partners generally, for his indemnity. In that case no partnership liability was created, and the surety signed, not for the firm but for the principal of the note; and the simple fact, that the firm got the benefit of the loan, did not give the surety a right to contribution against all the partners, as the credit was given to one only of them.

In this case a partnership liability was created. The plaintiffs were liable as sureties of the firm, and not for one partner; and, in signing the renewal notes, they acted on the faith of representations made by a partner acting within the scope of his power.

During the trial the representations of "William L. Hamilton, made to the sureties, to procure their signatures to the renewal notes, were given in evidence, to show the circumstances under which they became such sureties, and also at the time they signed the renewal notes.

As he was the managing partner in the business in Harrison county, and as the borrowing of this money, and the renewal of the note, were within the scope of his authority, his statements and representations, made to procure the loan, and also to obtain a renewal, are binding on the partnership, and, if relied upon by the plaintiff, are competent evidence upon the issue in this case.

Judgment affirmed.


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    Dodsworth v. Hopple et al.
    1. The sufficiency of pleadings is not'brought in question by a motion to dismiss an appeal, for the right of appeal does not rest upon the sufficiency of pleadings, but depends upon the nature of the case.
    2. Where in an action to recover possession of real property, the defendant took issue on the averments of the petition, and further set up by way of cross-petition matter constituting an equitable cause of action, which, if sustained, would defeat the original action, and the issues taken on the cross-petition were tried and judgment was rendered against the defendant, dismissing the cross-petition, and the case was sot down for further trial on the issues joined on the original petition — Held: That it was proper to dispose of the cross-petition before trying the case on the original petition, and that final judgment having been rendered against the defendant on the cross-petition alone, he w%s entitled to an appeal from such judgment.
    Error to the District Court of Hamilton county.

      Iioadly, Johnston, and Golston, for plaintiff in error.

      William Ii. Pugh, and G. W. Gerard, for defendants in error.
   Day, J.

In the original action, brought in the Court of Common Pleas of Hamilton county, R. B. Hopple and others were plaintiffs, and C. Dodsworth was defendant. The action was brought to recover possession of real property. The plaintiffs averred in their petition that they were the owners of the land and entitled to the possession thereof.

The defendant in his answer took issue on the averments of the petition ; and, by way of cross-petition, set up a state of facts, upon which he claimed that he was in equity entitled to a conveyance of the land in dispute from the plaintiffs, and prayed that they might be ordered to convey it to him, and that he might be quieted in his possession of and title to the land.

The plaintiffs replied denying the allegations of the-cross-petition, and set up special matter of defense thereto..

The case was tried upon the cross-petition and reply. The court found the issues for the plaintiffs, dismissed the cross-petition, and ordered that the case be retained for trial upon the original petition.

The defendant appealed from the judgment dismissing- , his cross-petition to the district court. On motion of the plaintiffs, that court dismissed the appeal on the ground that the defendant was not entitled to the appeal. This petition in error is prosecuted to reverse the judgment of the district court dismissing the appeal.

It is insisted that the cross-petition must be considered as nothing more than a defense to the original action. It does, it is true, set up matter of defense; but irt does more; it seeks affirmative relief of a broader scope than the mere defeat of the plaintiffs action for the possession of the land it seeks also to quiet the defendant’s title, by securing to him the legal as well as equitable right thereto.

The facts set up in the cross-petition purport to constitute not merely a defense to the action, but to be sufficient for an original action against the plaintiffs for the relief for which the defendant prays; and are such, that, had the plaintiffs discontinued their action, or failed to appear, the defendant, under the provisions of the code, might have proceeded to trial and judgment on his cross-petition, in the same manner as if it had been an original petition.

The case of Smith v. Anderson, 20 Ohio St. 76, is relied on as decisive of this. But that case, as explained in Buckner v. Mear, 26 Ohio St. 514, is plainly distinguishable from this, for the equitable relief sought in this case was not abandoned, as it seems to have been in that. The cross-petition in this ease was not relied on, as the answer was in that, “ simply ” as a defense. On the contrary, this case was tried, without objection, solely upon the issues arising on the cross-petition; and the cross-petition was dismissed, not only as a ground of equitable relief, but as a defense, and the case was left, by order of the court, to be further tried solely upon the issues arising on the original petition ; so that, as the case stands, the cross-petition becomes unavailable to the defendant, unless it be regarded, as it was treated by the parties and the court on the trial of the case, as a claim for affirmative equitable relief, in the nature of an original action.

It is claimed that the cross-petition must be regarded as a defense merely, for the reason that the facts therein stated' are not sufficient to warrant the relief prayed for.

It is not questioned but that, if the facts stated in the cross-petition were sufficient in law to entitle the defendant to the relief prayed for, the issues arising thereon, had it been filed as an original petition, would have been triable to the court and not to the jury, and that the case would therefore have been appealable.

But the question now brought in review is not that of the sufficiency of the petition, for that was not made in the district court, and it is the judgment of that court only that is now in question. The only question made there was, whether the case was appealable to that court. If it was, the appellant had the right to have it remain there? that he might have the judgment of that court upon any question that might properly be made in the case. The right of appeal does not, in any case, rest upon the suffi■ciency of the pleadings, but depends on the nature of the case. Rush v. Rush, 29 Ohio St. 440.

It is unnecessary to discuss other questions that are involved in the case, for they are fully considered and determined in Buckner v. Mear, supra. It is sufficient to say that the case falls within the principle of that case, and of Massie v. Stradford, 17 Ohio St. 596; Taylor v. Lieth, 26 Ohio St. 426; and Sheeful v. Murty, 30 Ohio St. 50, and that the defendant, therefore, had the right of appeal from the judgment of the common pleas dismissing his cross-petition.

It results that the judgment of the district court, dismissing the appeal, must be reversed.

Judgment accordingly.


text:
    Kingsland, Hook & Co. v. Watson Pryor.
    X. The maker of a note by fraud procures an accommodation indorsement upon it, transferring it, before due, to a creditor, in payment of a preexisting debt, the creditor giving time and surrendering collaterals. Unless complicity in the fraud, or knowledge of it at the time of taking the note, is proven against the creditor, the paper in his hands can not be impeached.
    ■ 2. A creditor demands security of his debtor, who, to obtain it, makes fraudulent representations to the one who becomes surety. The creditor is ignorant of these representations, and innocent as regards the debtor’s conduct. No such relation of agency exists as will make the creditor responsible for the debtor’s acts.
    Error to the District Court of Belmont county.
    Pryor was sued in the court below as indorser of a promissory note for $4,030.14, dated August 14,1869, payable in four months at the Eirst National Bank of Barnesville. Jones & Mays were makers of this note, and Pryor indorsed it for their accommodation. Pryor claims that his indorsement was obtained by fraud, with which plaintiffs-are connected, and therefore they can not recover.
    ■Jones & Mays were merchants, in apparently prosperous circumstances, and Pryor was their neighbor and friend and a family connection.
    In April, 1869, a debt was due from Jones & Mays to-plaintiffs, Kingsland, Hook & Co. It is not necessary testate the origin of this debt, or other circumstances attending it, further than to say that it was a legitimate one, falling due August 14, the date of the note in suit. For ■ this debt, the original one, plaintiffs had certain collateral, securities. Becoming dissatisfied with these securities, plaintiffs desired others, and Jones & Mays said they could, furnish Pryor, Brock, or Lisle as indorsers.
    Plaintiffs therefore instructed their attorney, Collins, who had already acted for them, to get a note indorsed with one of these names, and Jones & Mays were to have an extension of four months, and receive back the collaterals already held by Kingsland, Hook & Co.
    It is through the conduct of this attorney, in part, that Pryor claims plaintiffs are connected with the fraud perpetrated by Jones & Mays. Besides being an attorney,. Collins was a director in the Bank of Barnesville, and, as it appears, its counsel. Jones, the active partner of Jones & Mays, was also a director in the. Bank of Barnesville, owning $10,000 of its stock. In April, 1869, the firm of Jones & Mays was embarrassed, and in that month Jones transferred his $10,000 bank stock to the bank, to secure or pay a debt of the firm. In May he transferred all the real estate of the firm to the bank for the same purpose. As attorney for the bank, Collins knew all about these transactions. They were kept a secret from the public, and the deed kept off record, according to the finding of the jury, by agreement. This agreement is denied by Collins. With knowledge of these facts, Collins undertakes-to get the new security for his clients, Kingsland & Hook.
    Collins sends word to Jones that he must furnish the se— curity required; whereupon, Jones goes to Pryor, and asks his indorsement, telling him he wants to get money out of the Barnesville bank, to buy wheat with. Pryor did not know that Jones had already transferred all his real estate and all his bank stock to the bank, and Jones did not inform him of these facts. Pryor supposed the firm to be as strong as they ever were. He had confidence in Jones, who undoubtedly abused that confidence. Having thus obtained the indorsement, Jones takes it to Collins, and receives back the collaterals, the debt being thus extended four months from August 14th, the date of the note. This note, as originally indorsed by Pryor, was in pencil. Subsequently, Kingsland & Hook wanted the obligation written in ink, as was quite natural. Thereupon Collins makes a new note in ink, like the former, and tells Jones to get Pryor’s indorsement upon it, when the old one in pencil would be returned.
    In obtaining this new note, Jones writes a note to Pryor, telling him that “ our directors are not satisfied ” with the ■pencil note, and asks the new one, for the accommodation •of the “ directors,” thus leading Pryor to suppose that •the note was in the hands of the bank, when it had already been transferred to Kingsland, Hook & Co. In November, 1869, Jones & Mays became bankrupt, and Pryor is left to pay his indorsement, or get out of it if he • can.
    The testimony in the case is quite voluminous, and we have not stated all of it, but only such as is important, in view of the points upon which the decision turns.
    In the court of common pleas, the verdict and judgment was for defendant, Pryor. The district court affirmed that judgment, and a petition in error was filed in the supreme •court.

      William Okey and ./. H. Collins, for plaintiff in error.

      D. D. T. Cowen and St. Clair Kelley, for defendant in error.
   Wright, J.

I. Plaintiffs in error, Kingsland, Hook &' Co., plaintiffs below, took this note, with Pryor’s accommodation indorsement, and gave for it an extension of four months, surrendered up collaterals which they held, thus receiving the new note in absolute payment. They are therefore bona fide holders- of paper transferred to them-before maturity.

II. Jones, of Jones & Mays, obtained this accommodation indorsement of Pryor by fraud. Had Jones informed Pryor, as he should have informed a confiding friend of whom he was asking pecuniary favors, of the condition of the firm; had he informed him that all the real estate had. been deeded away to pay or secure debts; that all the-bank stock had gone in the same direction; that creditors-were praying for security upon old obligations; that lawyers were employed to collect or secure, Pryor, if a man of ordinary intelligence, would not have indorsed for so-' large an amount, unless, indeed, there were other claims-upon him to render assistance than those appearing in the case. Indeed, Pryor says he would not have gone on the paper if he “ had had any idea things were in the shape-they were.” But not content with suppressio veri, in the-nature of demónstrate falsi, Jones gives as a-reason for-asking the favor, that he wants to get money out of theBarnesville bank to buy wheat. This was untruth in the-fullest sense of the term. No such purpose was ever, at anytime, entertained. Jones wanted the note to pay the old debt of Kingsland, Hook & Co., who, through Collins, were urgent. This was his sole object, and the indorsement was-at once thus applied.

HI. Could we in any way connect plaintiffs, either directly, or through their attorney, Collins, with this fraud of Jones, we should long hesitate before reversing the-judgment below. But can this be done ? As to plaintiffs themselves, they did not know Pryor, except through Jones.. They never spoke to him, never saw him; had no communication with him.' Jones offered to give his name, or that of others, as security. Kingsland, Hook & Co., who were merchants in Baltimore, inquired, and found that Pryor was responsible, and informed Jones they would take him. Further, Kingsland, Hook & Co. did not suggest to Jones • anything of the course he took to procure the indorsement. They knew nothing of this whatsoever. Directly, therefore, they are in no way connected with, or responsible for, Jones’ conduct. Are they, then, responsible through their attorney, Collins, upon the ground that the principalis responsible for the acts of his agent ?

Had Jones and Collins put their heads together in this matter; had Jones proposed and Collins assented, or had Collins proposed and Jones assented, that Jones should go to Prior, and, concealing his financial distress, tell the story about the wheat, and so get the desired note, we would not hesitate to hold Kingsland, Hook & Co. responsible for the acts of their attorney, with all the consequences, even to invalidating the note. Burks v. Wonterline, 6 Bush. 20 ; Story Eq. Jur. § 204; Rees v. Barrington, 2 White & Tudor L. C. in Eq. 1867; Owen v. Homan, 8 Mac. & G. 378.

But what part did Collins take in the matter ? As to getting the original note — the one in pencil — Collins had no communication with Pryor, did not see him, did not speak to hinj on the subject. Nor did he advise Jones as to the course he should pursue. He did not intimate to Jones to conceal his condition from Pryor, nor did he have any part or parcel in the wheat story; the whole transaction was original with Jones, and no one is responsible for it but him. It is true that when plaintiffs wanted a note in ink substituted for the one in pencil, Collins writes a letter to Jones, inclosing a new note, asking him to get Pryor’s indorsement, and to send the letter to Pryor, that he may understand the old note will be returned. This appears to be all the intercourse Collins had with Pryor throughout the whole business, and we fail to see any evidence whatever to implicate Collins in the fraud that Jones perpetrated.

The court, therefore, properly charged: “ The defense of fraud and collusion, in procuring the signature of Pryor, fraud in the improper use of the security, is set up, and if these defenses are made out, the plaintiffs, if they shall by testimony be so connected with these frauds as to make them parties thereto, or to charge them with the knowledge ■of the same, can not recover.”

This charge, for the purposes of the case, was correct, and there is no evidence in the record to warrant the conclusion that plaintiffs were connected with the fraud in question, or were charged with knowledge thereof. Defendant alleges, in his answer : “ The defendant further says that the said plaintiffs were in collusion with said Jones & Mays, in obtaining said indorsement, and the note came Into plaintiffs’ possession with notice of the manner in which it was obtained.”

It is precisely this allegation which fails of proof.

It is beyond question that Collins, as attorney of the Barnesville bank, knew of J ones’ condition ; knew he had transferred his real estate and bank stock, though he says he still thought the firm' solvent. He had also been securing other claims. It seems to be insisted that, because Collins had obtained this knowledge, as attorney of the bank, he was in some way bound to communicate it to Pryor. We can not so believe. Collins was^employed to get the security from Jones; he had dealings with Jones alone, and it was no part of his business to give any information whatever to Pryor, at least until he was asked for it. Magee v. Mem. Life Ins. Co., 92 U. S. 93; Hamilton v. Watson, 12 Cl. & F. 109; N. B. Ins. Co. v. Lloyd, 10 Exch. 523; Withers v. Labouchere, 3 De Gex & J. 609.

An attorney employed to secure a claim is not bound to make public such information, in his possession, as will prevent him from accomplishing the object of his employment.

A portion of the charge is occupied in stating to the jury that the knowledge obtained by Collins as attorney ■of the bank was not a privileged communication, and it was not a breach of professional confidence in him to impart it to plaintiffs. We do not see what this has to do with the ease. The question, and the sole question, as we conceive it to be, as regards Collins, is, did he directly, or through Jones, impose upon. Pry or? Whether he communicated his information to plaintiffs or not, makes no sort of difference, and unless he was under some obligation to impart it to Pryor, the not doing so is nota circumstance to impeach the transaction. The charge, therefore, in this respect, was misleading. Nor can it be said that Jones, in •getting the indorsement, acted as agent for plaintiff, so as to make them responsible for the fraud he undoubtedly •committed. Farmers’, etc., Bank v. Lucas, 26 Ohio St. 385. Jones was acting for himself, and merely did what many before him have done, and doubtless more after him will do. With the terror of impending failure before him, he imposed upon unwary friendship, and involved others in a ■desperate attempt to escape the inevitable.

The views expressed dispose of certain questions of evidence.

Questions A to K, inclusive, in Collins’ cross-examination, were incompetent. The purpose of these questions is to show the condition of the firm, and the transfer of its property, as being facts at the time known to Collins. It is no matter of consequence whether he knew them or not, unless it was his business to inform Pryor of them, a duty which, as we have said, it was not incumbent upon him to perform.

Two letters were offered in evidence, by Pryor, as follows :

“ Burr’s Mills, October 9, 1869.

“ Mr. Watson Pryor — Dear Sir: Inclosed please find our note, payable to your order, for indorsement, to take the place of the one you indorsed for us, written with a pencil. 'The note written with pencil is just as valid as written with pen and ink, but some of our directors are not satisfied, and I told them I would get one with ink, and the one you signed will be destroyed. By writing your name across the back, will much oblige undersigned; for the accommodation of the other directors. G-. M. Jones.”

. “P. S. — You will find the letter inclosed of director Collins. G-. M. Jones.”

“Babnesville, Ohio, September, 11,1869.

“ G-. M. Jones, Esq. — Dear Sir : Please sign this note, firm name, and get Pryors indorsement thereon, and I will return you the note written with pencil. Send this letter to Pryor, so he will understand the other note is to be returned. Sincerely, J. II. Collins.”

These letters were objected to by plaintiff, and should have-been ruled out. They are incompetent on two grounds:

1. The original indorsement was made in pencil. The rights of the parties were fixed at that time, and the circumstances subsequently occurring could not vary those-rights.

2. It is very apparent that Jones, by his letter, wanted Pryor to understand that the note was in the hands of the-bank, in accordance with the wheat story, that suspicion might not be awakened. This was a deception; but how are plaintiffs connected with or responsible for-it ? Collins, so far as the evidence shows, did not know of this note, or its contents. He simply wrote to Jones to get the new-note, and J ones took his own course.

The bill of exceptions states that when defendants’ counsel offered the Jones letter, he stated that plaintiffs would be connected with it. The connection, however, failed.

Judgment reversed.